Posts Tagged Ireland

The Irish High Court in Albaniabeg v Enel: enforcement of ex-EU judgments.

Reminiscent of the decision in Yukos v Tomskneft, which concerned recognition of an arbitral award in Ireland even though there were no relevant assets to exercise enforcement against, the Irish Court of Appeal earlier this year in [2018] IECA 46 Albaniabeg v Enel upheld [2016] IEHC 139 Albaniabeg Ambient Sh.p.k. -v- Enel S.p.A. & Anor . (See my tweet below at the time – the case got stuck in my blog queue).

Thank you to Julie Murphy-O’Connor, and Gearóid Carey for flagging the case earlier in the year. The High Court had refused to grant plaintiff, Albaniabeg, liberty to serve out of the jurisdiction to seek to enforce a judgment of an Albanian court in Ireland against the two defendants, ENEL S.p.A. and ENEL Power S.p.A. (“ENEL”). The judgment therefore is ex-EU.

Enforcement proceedings were commenced in New York, The Netherlands, Luxembourg, France and Ireland in relation to the Judgment.  [I have not been able to locate outcome in those cases]. Notably no enforcement proceedings were brought in Italy. Presumably plaintiff’s motif is to obtain enforcement in one Member State, to ease the enforcement paths in other Member States (including Italy).

McDermott J at the High Court refused the application on the basis that the defendants had no assets within the jurisdiction and were not likely to have such assets in the near future. As the judge concluded that the plaintiff did not stand to gain any practical benefits if enforcement proceedings were to be commenced within this jurisdiction, he refused to grant them leave to serve such proceedings out of the jurisdiction on the defendants.

Hogan J at the Court of Appeal upheld. At 59 he notes ‘I should state in passing that it was not suggested that if an Irish court were to grant an order providing for the recognition or enforcement under own rules of private international law of the Albanian judgment, this then would be a “judgment” for the purposes of Article 2(a) of the Brussels Regulation (recast) which could then be enforced in other Member States under the simplified enforcement procedure provided for by Chapter III of that Regulation. As this point was not argued before us, it is not necessary to express any view on it.

In my Handbook I suggest such order is not a ‘judgment’ within the meaning of the Brussels I Recast Regulation.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.1.

 

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Persona Digital at the ISC. Third party funding found unacceptable in Ireland.

A short post on [2017] IESC 27 Persona Digital Telephony Ltd v. The Minister for Public Enterprise, Ireland and the Attorney Generalfor Monckton have full analysis here. The Supreme Court found that the funding agreement was champertous and did not fall within any exceptions arising in precedent case-law. It refused to develop the common law on these principles for instance to bring it into line with modern ideas on access to justice, stating that on such an important issue, Parliament should intervene. It also expressed regret at one of the main reasons behind accepting third party funding: namely that highly relevant litigation now would not go ahead due to a lack of funding.

Time, time, time: access to justice and third party funding is an excellent topic for research, anyone who does have a moment, do run with the idea.

Geert.

 

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The Irish High Court in Harley Medical Group: Textbook application of COMI following PIP implants liability

In Harley Medical Group, the Irish High Court has made a textbook application of the determination of jurisdiction under the EU’s Insolvency Regulation. The Court held in May, the case has only now come to my attention.

Harley Medical Group (Ireland) Ltd has its registered office in the British Virgin Islands. It had registered in the Companies Registration Office (CRO) in Ireland as an external company with a branch established in the State pursuant to the European Communities (Branch Disclosure) Regulations 1993. The sole shareholder sought winding up in Ireland. Liabilities arose from claims against Harley by 158 former patients in respect of cosmetic treatment they received. Many of those claims arise from breast implant operations using breast implants from PIP, a French registered company. The Company was informed by its insurers that its insurance cover does not extend to product liability claims for products sourced from a third party.

The patients opposed jurisdiction, seeking to have the case heard in the UK instead: lex concursus would then have been English law, which allegedly would have been more favourable on account of the Third Parties (Rights against Insurers) Act 2010: this would allegedly give the claimants better rights against the insurer. As the High Court correctly held, however,

‘The perceived advantage to the Opposing Creditors of this Court declining jurisdiction to wind up the Company is articulated as follows in [  ] ’s second affidavit, where it is averred that –

“. . . the creditors believe their rights under UK legislation with regard to any relevant policies of insurance indemnifying or intended to indemnify the Company against claims such as those of the creditors will be stronger than under Irish law.”

The Court was referred to a UK statute entitled Third Parties (Rights against Insurers) Act 2010. That contention is immaterial to the Court’s function on this application and it would be inappropriate for the Court to express any view on it. (at 37)

The High Court swiftly rejected the notion that the Regulation does not apply because of the non-EU incorporation of the company: from the moment the company’s COMI – Centre of Main Interest is in the EU, the Regulation does apply. Neither does it matter that the company is part of a group of undertakings, and that a company within the group with which it was associated had been placed in administration in the UK: COMI, per Eurofood (notably, upon reference by the Irish Supreme Court), needs to be individually determined per corporation.

The Court subsequently reviewed the rebuttable presumption of COMI as being the place of incorporation (here: BVI). Per Interedil, this requires the court seized to review whether the Company’s actual centre of management and supervision and of the management of its interests is located in its territory, ! in a manner that is ascertainable by third parties. Both conditions were fulfilled:

On the condition of ‘actual centre of management and supervision and of the management of its interests’ the High Court accepted the following indices:

  • – The Company has never traded in any jurisdiction other than Ireland.
  • – all surgical treatments had been carried out in Ireland, the operations having been performed by surgeons registered with the Irish Medical Council;
  • – the Company was registered as a branch in Ireland and subsequently filed all of the statutory returns as was required by law.
  • – All employees of the Company are located in Ireland.
  • – The Company’s only place of business is at Dublin.
  • – The Company’s address for correspondence has at all times been located in Ireland.
  • – The Company is registered with the Irish Revenue Commissioners for VAT, and relevant national insurance payments.
  • – The Company is not tax resident in any other jurisdiction.
  • – The Company does not operate any bank account in any other jurisdiction other than Ireland;
  • – The Company board meetings typically took place in Guernsey. However, in the last fourteen months, they have taken place either in London or in Dublin.

On the matter of ascertainability by third parties, that all of the Company’s activities have been conducted in Ireland since 1999 and that the administration of its interests has been continuously conducted in Ireland, has been readily ascertainable by third parties by conducting a search in the CRO and an inspection of the documents filed by the Company in the CRO in accordance with the law of Ireland.

Top marks, I’ld say.

Geert.

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