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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Mc Donnell v Association of Chartered Certified Accountants (Approved) [2025] IEHC 71 (30 January 2025) URL: http://www.bailii.org/ie/cases/IEHC/2025/2025_IEHC_71.html Cite as: [2025] IEHC 71 |
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APPROVED [2025] IEHC 71
THE HIGH COURT 2023 682 P BETWEEN PETER MCDONNELL PLAINTIFF AND THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS DEFENDANT JUDGEMENT of Mr Justice Nolan delivered on the 30th day of January, 2024 Introduction 1. The United Kingdom's exit from the European Union, colloquially known as Brexit, has had a significant impact upon the service of legal proceedings out of the jurisdiction to the United Kingdom. 2. When Ireland joined the EU, as it became known, the obligation to seek the leave of court to issue and serve proceedings against a Defendant, in another EU state was significantly simplified (Order 11A of the Rules of the Superior Court ("the Rules")). That was particularly the case in regard to proceedings involving parties in our neighboring jurisdiction. 3. Prior to the introduction of Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988, it was the job for many a young barrister to seek the leave of the court to issue proceedings out of the jurisdiction, pursuant to Order 11 Rule 1 of the Rules. However, over the years such applications have become somewhat anachronistic. 4. All that changed with Brexit. Suddenly, practitioners had to become familiar, again, with the workings of Order 11 of the Rules. Order 11 5. Order 11, entitled "Service Out of the Jurisdiction" provides as follows:- "Provided that an originating summons is not a summons to which Order 11A applies, service out of the jurisdiction of an originating summons or notice of an originating summons may be allowed by the Court whenever: ... (f) the action is founded on a tort committed within the jurisdiction" (emphasis added).
The Plaintiff's Cause of Action 6. The Plaintiff, who is a chartered accountant, claims damages for defamation to include aggravated and punitive damages, as well as various declarations alleging that his rights were breached under the Data Protection Act 2018 and the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016) as a result of certain alleged acts of the Defendant. 7. The Defendant is the regulating body for Chartered Accountants both in this jurisdiction and the UK but has its registered offices in London. 8. A solicitor's letter before action was sent to the Defendant on the 6th of May 2022, setting out the Plaintiff's case. In the context of disciplinary proceedings brought against the Plaintiff, which were ultimately disposed of in his favour, he alleges that the Defendant communicated with the Companies Registration Office in Ireland, in such a manner that when he attempted to file his accounts, he found that his account was blocked. This he alleges gives rise to his claim in damages for defamation as well as in breach of the Data Protection Act 2018 and General Data Protection Regulation. 9. It is clear from the correspondence that at all material times, the Defendant was aware that proceedings would be instituted. A Plenary Summons was issued on the 16th of February 2023.
The Correspondence 10. In their correspondence, the Defendant's solicitors state that their instructions were to accept service of any proceedings issued in the High Court or County Court of England and Wales, but that they did not have instructions to accept service of any other proceedings. 11. Thereafter, on the 6th of March 2023, they contacted the Plaintiff solicitor noting that there had been an article in the Phoenix magazine, which stated that proceedings had been lodged in the High Court, on the 16th of February 2023, but that the Defendant had no knowledge of any proceedings being served on them in Ireland or England. They said that such proceedings, if any, should be instituted in England and Wales. 12. In response, the Plaintiff solicitor stated that they did not accept that the dispute should be litigated in England and Wales and that, since the proceedings were founded in tort, they could be litigated in this jurisdiction. Thus, an impasse arose. Ultimately, the Defendant stated that they would not be nominating solicitors in this jurisdiction to accept service.
The Order of Heslin J. 13. On the 16th of February 2023, an application was made on an ex parte basis, before Heslin J. He made an order, pursuant to Order 11 Rule 1, that the Plaintiff be at liberty to issue proceedings against the Defendant since the intended action fell within a class of actions set out an Order 11 Rule 1 (f). 14. The crucial part of the order reads as follows:- "It is ordered that the intended plaintiff be at liberty to serve Notice of Plenary Summons in the within proceedings on the intended defendant, the Association of Chartered Certified Accountants, having their registered offices at the Adelphi, 1/11 John Adam Street, London, England, WC2N 6AU" (emphasis added). 15. Thereafter, the order recited that the intended Defendant had 42 days to enter an appearance. The order contains a date stamp of the 11th of May 2023. On that date, the Plaintiff solicitor enclosed a copy of the High Court Plenary Summons, served by registered post, with a copy of the court order. Crucially, however, they did not serve Notice of the Plenary Summons as directed, simply the Plenary Summons. 16. In response, the Plaintiff solicitor said that they would not accept service and since both jurisdictions were signatories to the Hague Convention, in regard to Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, the Convention should have been followed in attempting to effect service of the legal proceedings. However, any argument under the Hague Convention has been abandoned by the Plaintiff at the 11th hour in the legal submissions before this court. The Defendant's Motion 17. On the 10th of May 2024, the Defendant solicitors issued a motion pursuant to Order 12 Rule 26, to set aside service of the proceedings. In its grounding affidavit, the Defendant makes the point the service of the proceedings was not served in accordance with the order of Heslin J. and that they should be set aside. 18. In the replying affidavit, the Plaintiff's solicitor accepts that the Plenary Summons itself was served and not the Notice of a Plenary Summons, which he says was an oversight and apologises. Nonetheless, he argues that it does not amount to grounds to set aside service of the proceedings. 19. To do so would visit serious prejudice upon the Plaintiff, where the summons has since expired, and he would be put at risk that another application to renew the summons might not succeed. This, he says, is unnecessary and unwarranted in circumstances where the Defendants were clearly aware of the proceedings. I shall return to this argument.
The Submissions 20. The Defendant says that service of the summons is not a minor step, but a formal requirement to notify a person that they are required to present themselves on a stated date and time at a particular court to answer the claim against them. The jurisdiction to summon a person to the jurisdiction of a foreign entity goes even further. Service proceedings under Order 11 has the potential to bind a foreign national to the jurisdiction of the Irish courts. It confronts far greater concerns such as the comity of nations and the territorial reach of a court on a foreign national and relies upon the case of Short v Ireland [1996] 2 IR 188. 21. In Short, O'Hanlon J. said:- "Notice of the summons should have been served on the third defendant, and not the summons itself, as actually happened (O. 11, rule 8). Once again this is requirement involved in the comity of nations which should be observed meticulously, although the progress towards European Union has brought about the change in procedure involved in cases falling under O. 11A, in respect of which service out of the jurisdiction can be affected without having first to seek leave of the court." 22. Mr. Reilly for the Defendant, says that the preliminary question in any legal dispute involving an international element, is to ascertain whether the Irish courts possess jurisdiction to determine the claim. Order 11 permits, subject to the requirements set out therein, the service of documents on a person or entity that is based outside the country, thereby conferring jurisdiction on the Irish courts. However, the procedural requirements serve a particularly important protective function from the perspective of the foreign based Defendant and the overwhelming preponderance of the authorities stress the importance of strict adherence to those requirements, and further relays on the case of O'Connor v Commercial General and Marine Ltd [1996] 1 IR 68, where Morris J. (as he then was) said:-. "The requirement for the service of notice of the proceedings, rather than the summons itself, be given to a non-national in another country was put by Lord Westbury in Cookney v. Anderson (1863) 1 De G.J. & S. 365 as follows: — "The right of administering justice is the attribute of sovereignty, and all persons within the dominions of a sovereign are within his allegiance and under his protection. If therefore one sovereign causes process to be served into the territory of another, and summons a foreign subject to his court of justice, it is in fact an invasion of sovereignty, and would be unjustifiable, unless done with consent; which is assumed to be the fact, if it be done in a case where a foreign judgment would, by international law, be accepted as binding." It follows, in my view, that the service of a summons on a limited liability company incorporated in Belgium at its place of business in Brussels is not a service effected in accordance with the Rules of the Superior Courts and is bad and should be set aside." 23. The decision in O'Connor was followed by another future President of the High Court, Finnegan J. (as he then was), in Doe v Armour Pharmaceutical Company [2002] IEHC 144, where he said:- "This leaves the question of the manner in which service was in fact effected. Rather than serving notice of the summons as required by the order giving leave to serve out of the jurisdiction a copy of the summons was served. In relation to this I am satisfied that the law is correctly stated in Shortt v Ireland High Court unreported O'Hanlon J. 30th March 1995 and O'Connor v Commercial General and Marine Limited and Another [1996] 2 ILRM 291. The rule that notice of the summons be served is a requirement involving committee [comity] of nations and should be observed. Accordingly, I set aside service of the summons." 24. Thus, he says that the preponderance of legal authority is all one way and therefore the service should be set aside. 25. Mr. Lyons SC, for the Plaintiff argues that the applicable principles have evolved beyond the authorities relied upon by the Defendant and in particular points to the decisions of Binchy and Keane JJ. in Grovit v Jansen [2018] IEHC 22 and Smyth v SAS Sogimalp Tarentaise [2019] IEHC 568. 26. In Grovit Binchy J. said:- "In an era in which so many nations are parties to conventions on enforcement of foreign judgments and, in the EU context, where there is express provision by an EU Regulation for service of documents within the EU, it seems to me that the requirement to serve a notice of summons, rather than the summons itself, is anachronistic and could hardly be necessary in cases involving jurisdictions which are a party to such conventions or, by reason of membership of the EU, are subject to the same rules as to service of documents within the EU." 27. In Smith Keane J. went on to note that on the facts of the case, in the exercise of the Court's inherent jurisdiction and of the power conferred by Order 124 Rule 1 of the Rules, he would not set aside the service of the summons because it was clear that the Applicant was effectively put on notice of the proceedings, although the proceedings were not properly served on it as a matter of law, and because the applicant has suffered no prejudice in seeking to challenge jurisdiction. 28. He says that the authorities significantly predate developments in European law upon which the Plaintiff relies and that the court has discretion in relation to the matter to overlook the deficiencies, something which O'Hanlon did in Short, other than the order in regard to service. 29. Further, he says that due to the recent changes in the Rules in relation to renewal of summonses under Order 8 Rule 1 of the Rules (as substituted by the Rules of the Superior Courts (Renewal of Summons) 2018 (S.I. no. 482 of 2018)), there is a significant risk that if the service was set aside, the Plaintiff's claim in defamation, which should be issued within one year, will be statute barred if the Plaintiff's summons is not renewed. 30. Factors which the Plaintiff says the court should consider include the lack of delay, the fact that the correspondence was delivered quickly and that the solicitors for the Defendant said that service should be affected directly on the Defendant, as well as the fact that the Defendant abandoned its claim under the Hague Convention, at the 11th hour, once an affidavit was served as to the law of service in the United Kingdom. 31. The effect on the Plaintiff's claim could be catastrophic and that there is some lack of clarity in relation to the jurisprudence. Mr. Lyons says that the application is highly technical and has no substantive merit which would cause an injustice if successful. This flies in the face of EU principles of equivalence and effectiveness. 32. Further he says that in Short, whilst the Court did set aside service of the summons, it then went further and of its own motion and without any formal application from the plaintiff renewed the summons and extended time for liberty to serve notice of same. 33. He also points to the judgment of Barniville J.'s (as he then was) in Trafalgar Developments Limited v. Mazepin [2022] IEHC 167. In that case, the Defendants applied to set aside an order for substituted service on grounds that the Court ought not to have permitted service other than in accordance with the Hague Convention. In rejecting the unduly narrow interpretation of Order 11E of the Rules, which was contended for by the Defendants, Barniville J. noted that the general principle is that the Court is master of its own procedures and is not necessarily hide bound to a particular rule of court. 34. He concludes by observing that contrary to the Defendant's written submissions, the sovereignty reasoning does not appear to hold the same sway in the United Kingdom as it once did. In Abela v. Baadarani [2013] 1 WLR 2043, the claimants sought an order declaring service on the Defendant good service having been affected via an attorney who had previously acted for the Defendant in Lebanese court proceedings. Whilst the circumstances are very different to the within proceedings, Lord Sumption commented that litigation between residents of different states is a routine incident of modern commercial life: "The characterisation of the service of process abroad as an assertion of sovereignty may have been superficially plausible under the old form of writ ("We command you ..."). But it is, and probably always was, in reality no more than notice of the commencement of proceedings which was necessary to enable the defendant to decide whether and if so how to respond in his own interest. It should no longer be necessary to resort to the kind of muscular presumptions against service out which are implicit in adjectives like "exorbitant". The decision is generally a pragmatic one in the interests of the efficient conduct of litigation in an appropriate forum."
Discussion and Decision 35. I am struck by the mandatory tone of the rule. I am also struck by the fact that the order of Heslin J. specified how the proceedings should be served. Therefore, not only were they served contrary to the manner set out in the Rules, but they were also served in a manner which was contrary to the court order. 36. Court orders must have priority and precedence. They are a direction of court as to how parties must act on pain of sanction. Therefore, it seems to me that while the issue of a breach of the rules is somewhat procedural and should not be restrictive in the manner that Barniville J. alluded to, the breach of a court order is not. 37. In Short, O'Hanlon J. noted that the slip up in the manner of service was a matter of some significance. He also noted that the international comity of courts had been offended by the Plaintiff's failure to serve as required by the order of the High Court. 38. That was followed by a decision of Morris J. and Finnigan J. It is also echoed in the leading authority text namely Delaney and McGrath on Civil Procedure (5th ed., 2024). 39. The Plaintiff has referred me to Gravit and Smith. In both those cases, the learned High Court judges allowed the service of the proceedings other than in accordance with the Rules, but there were many other reliefs being sought and granted in those cases. In Gravitt, Binchy J. was setting aside a default judgment and there were many reasons why that judgment should have been set aside, only one of which referred to the issue of the service of the proceedings. 40. In Smith, the court was dealing with whether the service of the proceedings should just be set aside as well as the issue of jurisdiction under Brussels I Regulations (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012) and whether the proceedings should be struck out as being frivolous or vexatious. Thus, his decision on the issue before this court is very much an ancillary one. 41. I absolutely accept and agree with the views of Barniville J. in Trafalgar, where he said that the court is the master of its own procedure. Nonetheless, it seems to me that, as is accepted between the parties, these proceedings were in fact served in breach, not only of the Rules, but of the court order. Whilst I may well have taken a different view had the breach only been of the Rules, it seems to me that I cannot ignore the fact that the proceedings were served in breach of the court order. I do accept that it was a technical breach but nonetheless it was a breach which occurred in circumstances where it must have been very clear from the correspondence, that the Defendant was going to challenge jurisdiction. He had asked their solicitors to accept only service of any proceedings issued in England and Wales but pointedly refused to appoint solicitors in this jurisdiction to accept these proceedings, which is their right. 42. Therefore, it seems to me that the order which I should make is one to set aside the service of the proceedings in accordance with Order 12 Rule 26 of the Rules. 43. The effect of this order is that the Plaintiff must now bring an application to renew the summons so that it can be served in accordance with the Rules. That application under Order 8 is one which I shall make returnable to myself, on the basis that I have read all the papers, and I am aware of all the issues in the case. That seems to me to be an appropriate use of the scarce resources of judicial time. Therefore, I shall list the matter for me on Monday the 28th of April, in the afternoon, to hear that application.