The Gazette 1989

GAZETTE

MARCH 1989

"issued" when they are served. This is in contrast to common law jurisdictions where proceedings may be issued first and then served on the defendant up to one year later. A defendant in a common law jurisdiction such as Ireland or England usually first becomes aware of proceedings against him when the summons is served on him. Accordingly, a party who intends to institute proceedings in the Irish High Court against an English defendant, may himself already be a defendant in pro- ceedings concerning the same issue and between the same parties which have been instituted in the English Courts by the issue of a writ, but of which he is not aware as the writ has not yet been served. A new Rule 3A has been inserted after Order 19, Rule 3 which requires that the same endorse- ment shall be put on the Statement of Claim in such cases. Order 11A has been created to make provision for service out of the jurisdiction without an order of the Court of sumonses in pro- ceedings in which the claim comes within the scope of the Convention. Order 11 now only covers cases which do not come within the scope of the Convention. A Court order is still required for liberty to serve a summons or notice thereof out of the jurisdiction on a defendant who is domiciled in a non-contracting State or if the claim belongs to a class which does not come within the scope of Convention e.g. bankruptcy or arbitration matters. A minor amendment has been made to Order 11, Rule 1 by the insertion immediately before the words:- "Service out of the jurisdiction of an originating summons" of the following:- "Provided that an originating summons is not a summons to which Order 11A applies". Order 11A, Rule 2 allows service of an originating summons or notice of an originating summons out of the jurisdiction without the leave of the Court if it complies with the conditions set out therein. These are:- "(1) The claim made by the summons is one which by virtue of the 1988 Act the Court has power to hear and determine; and

(2) No proceedings between the parties concerning the same cause of action is pending between the parties in another Contracting State and (3) Either (a) the defendant is domiciled in any Contracting State, or (b) the proceedings commenced by the originating summons are proceedings to which the provisions of Article 16 of the 1968 Convention concerning exclusive jurisdiction apply, or (c) the defendant is a party to an agreement conferring jurisdiction to which the provisions of Article 17 of the 1968 Convention con- cerning prorogation of jurisdiction apply." There is no change in the common law rule whereby notice of the summons rather than the summons itself is served in cases where the defendant is not a citizen of Ireland. Order 11A, Rule 6 provides:- "Where the defendant is not, or is not known or believed to be a citizen of Ireland, notice of the summons, and not the summons itself, shall be served upon him." Order 12, Rule 2 has been deleted and a new Rule 2 substi- tuted to make special provision regarding the entry of an appear- ance to an orginating summons in proceedings served out of the jurisdiction under Order 11A, Rule 2. These provisions also apply to an appearance entered solely to contest jurisdiction. A distinction is made between a sumons which is to be served in the European territory of another Contracting State and a summons which is to be served in a non-European territory of a Contracting State. Where an originating summons is served in the European territory of another Contracting State the defendant has five weeks from the date of service of the summons within which to enter an appearance. A defendant who is served in any non-European territory of a Contracting State must enter an appearance within six weeks of the date of service of the summons on him. Procedure for Enforcement Section 5 of the 1988 Act provides:- "An application under Article 31 for the recognition or enforcement in the State of a judgment shall be made to the 97

Contracting States, both of whom prima facie have jurisdiction under the Convention, the court in which the proceedings were first instituted is competent and the other court must decline jurisdiction (Article 21). AMENDMENTS TO THE RULES OF THE SUPERIOR COURTS The Rules of the Superior Courts have been amended to provide the procedures required for the imple- mentation of the 1988 Act. The new rules are entitled "Rules of the Superior Courts (no. 1) 1989" (S.I. No. 14 of 1989) and they came into operation on the 1st day of February, 1989. They may be purchased from the Government Publications Sale Office, together with a Guide to the changes made as a result of the 1988 Act pre- pared by Mr. Gerard Hogan B.L. and Mr. James O'Reilly B.L. for the assistance of the legal profession. Procedural Changes Relating to Jurisdiction A summons initiating proceedings coming within the scope of the Convention may be issued and served out of the jurisdiction without an order of the Court. In order to provide for the issue of such a summons a new rule 1A has been inserted after Order 4, Rule 1. It provides that:- "Where an endorsement of claim on an originating summons con- cerns a claim which by virtue of the 1988 Act, the Court has power to hear and determine, the following provisions shall apply:- 1) The originating summons shall be endorsed before it is issued with a statement that the Court has power under the 1988 Act to hear and determine the claim, and shall specify the particular provision or provisions of the 1968 Convention under which the Court shall assume jurisdiction, and 2) The originating summons shall be indorsed before its issue with a statement that no proceedings between the parties concerning the same cause of action is pending between the parties in another Contracting State." In practice it may be necessary to allow solicitors to qualify the endorsement required by Rule 1A(2) above. In civil law juris- dictions proceedings are only