THE COURT OF APPEAL
Neutral Citation Number:  IECA 179
Record Number: 2014/35, 2015/234, 2015/235
[Article 64 Transfer]
Mevlut Abama And Others
- And -
Gama Construction (Ireland) Limited And
Gama Endustri Tesisleri Imalat Ve Montaj A.S.
Judgment of the Court delivered on the 31st day of July 2015
1. The plaintiffs concede that they may have put a foot wrong procedurally when they sought an order for service out of the jurisdiction in respect of the second named defendant by relying upon O. 11, r. (1)(e) RSC prior to the commencement of these proceedings. This error, if it be such, has led to no end of difficulty, and a delay of some five years in the prosecution of their claims.
2. The second named defendant submits that no mere procedural error occurred, and that a conscious decision was made by the plaintiffs to move an application for leave to issue and serve these proceedings outside the jurisdiction under Order 11, r. (1) RSC, and that the order made should be set aside on the basis of common law principles regarding ‘forum non conveniens’ as sought in their Notices of Motion each dated 15th January 2009.
3. The second named defendant submits that the plaintiffs should not be allowed to meet its application to set aside the order made under O. 11(1)(e) RSC by now claiming that the Irish Courts have jurisdiction to determine their claims by virtue of Council Regulation 44/2001 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as ‘the Regulation’). By Order of White J. made on the 14th October 2014 they have been permitted to amend their Indorsement of Claim so that it contains a statement therein that (1) the claim made by the summons or other originating document is one which, by virtue of the Regulation, the Court has power to hear and determine, and (2) no proceedings between the parties concerning the same cause of action are pending between the parties in another Member State of the European Union, these being matters referred to in Order 11A, r. 2 RSC, as being pre-requisites for service out of the jurisdiction without leave of the Court under the Regulation, and which under Order 4, r. 1A RSC are required to be endorsed on the originating summons before it is issued.
4. The plaintiffs submit that form should not be permitted to triumph over substance, and that the claims should now be permitted to proceed on the basis of the jurisdiction provided under Article 18 of Regulation 44/2001 EC for claims of this nature, since that jurisdiction always existed, and even though in error they sought an order under Order 11 (1) RSC, and even though the Indorsement of Claim did not contain the endorsement required by Order 4, r. 1A RSC.
5. In the Court below, Dunne J. decided that the claim came within the Regulation and that, in accordance with the judgment in Owusu v. Jackson (trading as Villa Holidays Bal-Inn Villas and others (Case C281/02  E.C.R-1 383) common law principles of forum non conveniens must yield to the jurisdiction founded upon the Regulation. She went on to conclude that even if she was wrong in holding that claims came within, and jurisdiction existed for the Irish Courts to determine the claims, the application to set aside the order made should be refused in any event under forum non conveniens principles for reasons which she set forth in her judgment. The second named defendant submits on this appeal that in so concluding both issues, Dunne J. erred as pleaded in its Notice of Appeal.
A little background
7. The sample of this individual contract of employment which has been exhibited contains ‘Article 9 - Disputes’ which states that “any dispute that may arise during the performance of this Agreement shall exclusively be settled by Ankara courts and enforcement offices”. It also contains ‘Article 2 - Place of Performance of the Works’ which states:
9. On 1st October 2001 Gama Turkey entered into a Secondment Agreement with the first named defendant, which is its Irish registered subsidiary (I will refer to it as ‘Gama Ireland’). Under that agreement Gama Turkey agreed, inter alia, the following:
3.3: Gama Turkey shall provide and for the purposes shall procure that Gama Turkey’s Employees shall on behalf of Gama Turkey provide the Services for such hours as are in the opinion of Gama Ireland reasonably necessary to properly and diligently provide the Services subject to compliance with all appropriate laws in Ireland which shall include but shall not be limited to the Organisation of Working Time Act and the Registered Agreement relating to construction workers being the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment) registered in the Register of Employment Agreements on 15th of March 1967 as varied by the Labour Court under Section 28 of the Industrial Relations Act, 1946.
3.5: It is hereby declared that each and every Gama Turkey’s Employee is not and shall not become an employee or agent of Gama Ireland and shall remain under the direct control and management of Gama Turkey. Gama Turkey shall withdraw any Gama Turkey’s Employee in respect of whom an objection is notified for any reason by Gama Ireland.”
13. It was Gama Ireland which arranged work permits for the plaintiffs through the Department of Enterprise, Trade and Employment before they came to Ireland, and which also had responsibility for making arrangements for their accommodation and food while they were employed in Ireland.
14. All the plaintiffs claim that while working in Ireland they were not paid in accordance with the Irish Registered Employment Agreement referred to in the Secondment Agreement and the secondment letter which they each received. Each claims, inter alia, firstly, a declaration that at all material times their contract of employment with the defendants was governed by the Registered Employment Agreement; secondly, an order directing payment to them of all outstanding wages, pension contributions and expenses pursuant to the Registered Employment Agreement; and thirdly, damages for breach of contract and/or breach of terms of office and/or breach of statutory duty.
15. There is some lack of clarity as to whether one only, or each, jurisdiction clause has some relevance to these proceedings, and if the former, then which one. That is because the contract of employment between Gama Turkey and the plaintiffs provides for the Courts of Ankara to have jurisdiction over claims arising from that contract. But that contract itself makes no reference to the Registered Employment Agreement (though it does provide that Gama Turkey may require the employee to work abroad), and it is in respect of this agreement that the plaintiffs seek declaratory relief and orders for the payment of the outstanding sums. However, the secondment letter states that each plaintiff will be paid in accordance with the Registered Employment Agreement. The Irish jurisdiction clause in the Secondment Agreement applies only in respect of disputes arising between Gama Turkey and Gama Ireland on foot of the Secondment Agreement to which the individual plaintiffs are not a party.
16. Despite the terms of Article 3.5 and 7.1 of the Secondment Agreement, the solicitors acting for the plaintiffs, in their warning letter to each of the defendants dated 17th July 2008 sent ahead of the commencement of proceedings, refer to “their [clients’] contracts of employment with Gama Construction (Ireland) Limited” and state, having referred to their previous employment in Turkey, that “our clients subsequently became employees of Gama Construction (Ireland) Limited”. The rationale for that statement becomes clearer in a replying affidavit filed on the plaintiffs’ behalf in response to the defendants’ motions to stay the proceedings to which I refer in paragraph 21 below.
The Order 11 application
19. In due course notice of the plenary summons was served on Gama Turkey as permitted by this Order, and the summons itself was served in the normal way on Gama Ireland in this jurisdiction. A conditional appearance was entered by each defendant for the purposes of contesting jurisdiction. On the 15th January 2009 each defendant issued a separate Notice of Motion seeking an order pursuant to the inherent jurisdiction of the Court staying the proceedings on the ground of forum non conveniens claiming that the appropriate forum in which the proceedings should be litigated is Turkey, and those motions came before Dunne J. for determination.
20. Dunne J. delivered a written judgment on the 25th February 2009. She correctly identified the two issues requiring determination as being (1) whether the proceedings should be stayed on the basis of forum non conveniens, and (2) the related issue as to whether or not the provisions of Regulation 44/2001 EC has any application to the proceedings.
21. Dunne J. referred also to paragraph 39 of the replying affidavit of Donal Taaffe, the plaintiffs’ solicitor, which explains why the plaintiffs were referred to as being and/or having become employees of Gama Ireland in the pre-commencement warning letter sent to the defendants. In that paragraph he stated:
23. Referring to the defendants’ argument that since the plaintiffs’ application under Order 11, r.1 RSC was a common law application it must be determined in accordance with the common law principle of forum non conveniens (which they submitted must be Turkey) Dunne J. set out that argument in more detail as follows:
26. Dunne J. was also referred by the defendants to a judgment of Geoghegan J. in Schmidt v. Home Secretary  1 ILRM 301. That was a case where the second named defendant sought to set aside an order made under O.11 RSC for service of proceedings upon him in the United Kingdom on a number of grounds, including that the alleged torts were not committed in this State but in the United Kingdom. Geoghegan J. was satisfied that the alleged torts were “matters relating to tort” and that they must be taken to have been committed in Ireland, and therefore were within the meaning of Article 5 of the EC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968. Accordingly, the proceedings fell to be dealt with under O. 11A RSC, and not O.11 RSC, thus requiring the order made to be set aside. In that regard he pointed to the wording of O. 11, r. 1 which states:-
28. However, this appeal can be determined by a consideration of whether the learned judge in the Court below was correct in concluding that the Irish Courts enjoyed jurisdiction to hear and determine the plaintiffs’ claims under the Regulation, and that by virtue of the Owusu decision this trumped the exclusive jurisdiction clause and the principles of forum non conveniens.
29. Essentially, Gama Turkey submitted in the Court below and on this appeal that having chosen to proceed by way of Order 11 (1)(e) RSC, the plaintiffs could not now change horses and seek to have jurisdiction determined by reference to the Regulation, particularly where the Plenary Summons lacked the endorsement referred to in Order 4, r. 1A RSC or indeed any reference to the Regulation being relied upon. The plaintiffs on the other hand submitted that one way or another, whether the application was being made under common law principles as to jurisdiction or whether jurisdiction was founded upon the Regulation, an application was required to be made under O.11 RSC for service of notice of the proceedings out of the jurisdiction since Turkey was not a Member of the European Union and therefore O.11A RSC was inapplicable. In this regard they refer to the provisions of O. 11A, r.4 RSC which provides:
31. It is appropriate at this point to set forth the provisions of Articles 18 - 21 of the Regulation before addressing the parties’ submissions in relation to same. They are contained in Part 5 of the Regulation under the heading: “Jurisdiction over individual contracts of employment”:
2. Where an employee enters into an individual contract of employment with an employer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State.
An employer domiciled in a Member State may be sued:
2. in another Member State:
(a) in the courts of the place where the employee habitually carries out his work or in the courts for the last place where he did so, or
(b) if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated.
2. The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.
The provisions of this Section may be departed from only by an agreement on jurisdiction:
2. which allows the employee to bring proceedings in courts other than those indicated in this Section.
34. Two decisions in particular were relied upon by the plaintiffs before Dunne J. and again on this appeal, namely that in Owusu v. Jackson (trading as Villa Holidays Bal-Inn Villas and others (Case C281/02  E.C.R-1 383) and Goshawk Dedicated Limited and Others v. Life Receivables Ireland Limited  IEHC 90 each generally to the effect that the Regulation supersedes the common law principles of forum non conveniens, and overrides the exclusive jurisdiction clause contained in the individual contracts of employment entered into between Gama Turkey and each of the plaintiffs.
35. As noted by Dunne J. in her judgment, Mr Owusu, who was a British national, had sustained an injury while on holiday in Jamaica. He had rented a villa there from Mr Jackson, another British national. An action was commenced in the United Kingdom for damages for personal injuries in which Mr Jackson and a number of Jamaican registered companies were named as defendants. The plaintiff was granted leave to serve proceedings out of the jurisdiction on the Jamaican companies, who in due course applied to have the proceedings stayed on the basis of forum non conveniens. The UK court decided at first instance that in view of the Brussels Regulation it could not stay the proceedings. On appeal a reference was made to the European Court of Justice seeking a ruling on the following question:
(a) if the jurisdiction of no other contracting State under the 1968 Convention is issue;
(b) if the proceedings have no connecting factors any other Contracting State?”
38. Respect for the principle of legal certainty, which is one of the objectives of the Brussels Convention ……… would not be fully guaranteed if the court having jurisdiction under the convention had to be allowed to apply the forum non conveniens doctrine.
39. According to its preamble, the Brussels Convention is intended to strengthen in the Community the legal protection of persons established therein, by laying down common rules on jurisdiction to guarantee certainty as to the allocation of jurisdiction among the various national courts before which proceedings in a particular case may be brought…
40. The Court has thus held that the principle of legal certainty requires, in particular, that the jurisdictional rules which derogate from the general rule laid down in Article 2 of the Brussels Convention should be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the State in which he is domiciled, he may be sued… .
41. Application of the forum non conveniens doctrine, which allows the court seized a wide discretion as regards the question whether a foreign court would be a more appropriate forum for the trial of an action, is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention, in particular that of Article 2, and consequently to undermine the principle of legal certainty, which is the basis of the Convention.
42. The legal protection of persons established in the Community would also be undermined. First, a defendant, who is generally better placed to conduct his defence before the courts of his domicile, would not be able, in circumstances such as those of the main proceedings, reasonably to foresee before which other court he may be sued. Second, whereupon he is raised on the basis that a foreign court is a more appropriate forum to try the action, it is for the claimant to establish that he will not be able to obtain justice before that foreign court or, if the court seized decides to allow the key, that the foreign court has in fact no jurisdiction to try the action or that the claimant does not, in practice, have access to effective justice before that court, irrespective of the cost entailed by the bringing of a fresh action before a court of another State and the prolongation of the procedural time-limits.
43. Moreover, allowing forum non conveniens in the context of the Brussels Convention would be likely to affect the uniform application of the rules of jurisdiction contained therein in so far as that doctrine is recognised only in a limited number of Contracting States, whereas the objective of the Brussels Convention is precisely to lay down common rules to the exclusion of derogating national rules.
44. The defendants in the main proceedings emphasise the negative consequences which would result in practice from the obligation the English courts would then be under to try this case, inter alia as regards the expense of the proceedings, the possibility of recovering their costs in England if the claimant’s action is dismissed, the logistical difficulties resulting from the geographical distance, the need to assess the merits of the case according to Jamaican standards, the enforceability in Jamaica of a default judgement and the impossibility of enforcing cross-claims against the other defendants.
45. In that regard, genuine as those difficulties may be, suffice it to observe that such considerations, which are precisely those which may be taken into account when forum non conveniens is considered, are not such as to call into question the mandatory nature of the fundamental rule of jurisdiction contained in Article 2 of the Brussels Convention, for the reasons set out above.
46. In the light of all the foregoing considerations, the answer to the first question must be that the Brussels Convention precludes a court of a Contracting State from declining the jurisdiction conferred on it by Article 2 of that Convention on the ground that a court of a non--Contracting State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other Contracting State is in issue or the proceedings have no connecting factors to any other Contracting State.”
40. I am satisfied that the reasons stated by Dunne J. for her conclusion that the plaintiffs are entitled to rely on the provisions of the Regulation as forming the basis of jurisdiction, and therefore that the discretionary application made by the defendants for a stay in these proceedings is precluded by virtue of the application of the Regulation having regard to the decision in Owusu are correct.
41. The plaintiffs could not have availed of the provisions of O. 11A RSC even though the claims are made under contracts of employment covered by Part 5 of the Brussels Regulation, since Turkey is not a Contracting State. Turkey is deemed to be domiciled in Ireland by virtue of Article 18.2 of the Regulation, and jurisdiction in relation to disputes arising under the contracts of employment are to be determined in the courts of that domicile. Order 11A, rule 4 (1) RSC deals with a situation where there are two or more defendants but not every defendant is domiciled in a Member State of the European Union. That rule provides, as already set forth, that in such cases service of proceedings will be dealt with under O. 11 RSC and not O. 11A. The question then arises as to the particular paragraph within O.11, rule 1 RSC the claim comes within for the purpose of making an application for service out of the jurisdiction under O.11 RSC as mandated by O. 11A, rule 4 (1) RSC. The position is by no means clear. There is no sub-paragraph which specifically relates to a contract of employment coming within Part 5 of the Regulation as such. The nearest sub-paragraph is that under which the plaintiffs in fact moved, namely paragraph (e) when read in its totality. I do not see any other provision in O. 11 RSC under which the application could more clearly be brought, and yet the application must be brought under O. 11 RSC. I am satisfied that the order made under O. 11 was correctly made for all the reasons stated,
42. In so far as the plaintiffs omitted from their plenary summons the endorsement required by O. 4, rule 1A RSC, the provisions of O. 124, rule 1 RSC are relevant. This rule provides:
44. For these reasons I would dismiss both appeals.