The Gazette 1987

GAZETTE

APRIL 1987

Court. 7 Thus, it has been remark- ed in 1 896 in McCrea -v- Knight: " . . . even where service out of the jurisdiction may be allowed it is not necessarily to be allow- ed and it ought not to be allow- ed unless there is some ground of 'comparative convenience' to guide the discretion of the Court to the conclusion that a foreign defendant ought not to be brought to Ireland to stand his trial. I cannot limit the meaning of 'convenience'. It means fitness, propriety and suitable- ness —each and all three in the most general sense." 8 Second, the High Court, when making an order giving leave for service out of the jurisdiction, should, as a matter of propriety if not necessity, specifically mention in the order the particular class of action within which the Court decides the intended action to fall. 9 Third, the list of cases specified in Order 11 is exhaustive. Service out of the jurisdiction can only be permitted under the authority either of a statute or of a rule of court having the force of a statute and those rules are to be found only in Order 11. 10 Order 11, r.1 provides that: "(s)ervice out of the jurisdiction of an originating summons or notice of an originating sum- mons may be allowed by the Court whenever . . . (f) the ac- tion is founded on a tort com- mitted within the jurisdiction." 11 In addition, it is possible to bring an action founded on a tort under cer- tain other rules of Order 11. Ser- vice out of the jurisdiction may, for example, be allowed under r.1 (g) if the summons includes a bona fide claim for an injunction as to anything to be done within the jurisdiction, 12 or for the prevention or removal of any nuisance within the jurisdiction. Under r. 1 (h) leave may be allowed to serve any person out of the jurisdiction who is a necessary or proper party to an action properly brought 13 against some other person duly served within the jurisdiction. This rule may also permit service out of the jurisdiction in a tort action. Order 11, r.1 (f) refers to an action "founded on a tort commit- ted within the jurisdiction". This requires the court to search for

the place where the tort was com- mitted, the "locus delicti". No dif- ficulty arises in the case of a tort which is committed within the jurisdiction or where all the events including the actual bringing of the action occur within the State. Determining the locus delicti can be problematical when the defen- dant's act takes place in one coun- try and the resulting harm is inflicted on the plaintiff in another country. It is a particular problem of the tort of negligence in which the negligent conduct and the consequent injuries may occur in different jurisdictions. 14 This problem arose in Grehan's case. The plaintiff, who was an Irish resident, underwent heart sur- gery in a Dublin hospital in June 1978. During the course of this surgery a heart valve was im- planted in the plaintiff which, he claimed, was defective and as a result of which, he alleged, he was re-admitted to hospital with cardiac failure. He instituted proceedings for negligence against the first named defendant, a Minnesota- based corporation, who, while denying negligence and putting the plaintiff on proof of all the matters averred in his statement of claim, pleaded that the heart valve in question had been manufactured by the second named defendant. The plaintiff was then given liber- ty to join the second named defen- dant, Valley Pines Associates, as a defendant in the action. The second named defendant moved to have the order joining it set aside. In support of this application it was argued that it could not be sued in the Irish courts. For the plaintiff it was argued that while the second named defendant did manufacture the article in the United States it did so knowing that it would be distri- buted on a world-wide basis and that the distribution of the article in this country was done through the medium of the first named defendant. In the High Court Lynch J. refused the application on the ground that in order to do justice in the action it should be tried as one action. The second named defen- dant appealed to the Supreme Court. The appeal turned upon the question of whether or not this was a proper case in which the High Court ought to have exercised its discretion to order service of notice of the proceedings outside the

jurisdiction on the second named defendant and to join it as a defen- dant in the action. It was admitted that at least a component part of the valve was manufactured by the second named defendant and was one of a number of such com- ponents sold and delivered by the second named defendant to the first named defendant in the United States. It was on this basis that the Supreme Court dealt with the second named defendant's appeal. The outcome of the appeal depended on whether the action against the second named defen- dant was "founded on a tort com- mitted within the jurisdiction". Before Grehan's case, any one of a number of tests might have been applied. The problem has been considered in all other major common law jurisdictions. Prior to Grehan's case, there does not appear to have been any reported decision of an Irish court dealing with the construction of 0 . 11, r.1 (f), although the problem had been considered in other contexts. 15 Five tests were examined by Walsh J.: (i) the "place of acting" test: the locus delicti is the place where the wrongful act was committed; (ii) the "substance of the cause of action" test: the proper test to apply is when the tort is complete to look back over the series of events constitut- ing it and to ask where does the substance of the cause of action arise; (iii) the "last event" or "place of harm" test: the locus delicti is in the jurisdiction in which the last event occurred in the train of events making up the tort; (iv) the restrictive test: this ap- proach requires that all the elements of the tort must have been committed within the jurisdiction; (v) the elective test: this ap- Tests for establishing t he locus delicti in 0 . 11 cases

proach permits the plaintiff to choose between the place of the event giving rise to the damage complained of or the place where the damage occurred.

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