THE HIGH COURT
HOLLAND DREDGING COMPANY (IRELAND) LTD AND OTHERS
Judgment of Keane J. delivered the 3rd day of March 1989
The Plaintiff is the widow of Frederick Leo Campbell, a ship's captain who was drowned in England at Plymouth docks on 20th April 1986. On 28th July 1987 she instituted proceedings against the first named Defendant claiming damages for the death of Mr. Campbell which it is averred in the endorsement of claim on the plenary summons:
"was caused by the negligence of and breach of duty and breach of statutory duty by the Defendants."
On the 25th March 1988 the Plaintiff was given liberty by the President to issue a concurrent plenary summons against the second and third named Defendants and to serve notice of the summons on those Defendants at addresses in England and the Netherlands respectively. It was recited in the Order, which was perfected on the 14th April 1988,that it appeared that the action fell within the class of actions set out in Order 11, Rule 1(e) of the Rules of the Superior Courts. Those Defendants have now applied by motion on notice to vacate the Order of 14th April 1988. They rely on two grounds:
(1) That the affidavit grounding the application did not adequately set out the facts so as to enable the court to determine whether it was a proper case to authorise service out of the jurisdiction.
(2) That the action is one brought in tort and consequently does not fall within the provisions of Rule 1 (e) of order 11 .
The plaintiff has also applied to this court for an Order amending the Order of the 14th April 1988 by adding immediately after the reference to Order 11 Rule 1(e) the words "and Rule 1(h)".
The original application for liberty to serve notice of the proceedings out of the jurisdiction was grounded on an affidavit of Philomena McCarthy, a solicitor in the firm of solicitors acting on behalf of the Plaintiff. It was averred in the affidavit that the late Mr Campbell was at all material times employed by the first named Defendants, the second named Defendants and the third named Defendants. It was also stated that, at the time of his death, he was working for all three companies at Plymouth docks. The affidavit continues in paragraph 5 as follows:
"(The second named Defendant) is an associated company of the present Defendants. They are both part of one group of companies and I say and believe that both companies are subsidiaries of the one parent company in (the third named Defendants) and I say and believe that (the first and second named Defendants) have minimal assets and that all the assets are vested in (the third named Defendants) and I say and believe that each of the aforesaid companies acted as agent for the other and that at the time of his death, the deceased was in the employment of all three companies and each of the three companies are equally liable to the Plaintiff both in tort and on foot of the aforesaid contract of employment".
Mr McCullough, on behalf of the second and third named Defendants, submits that these averments are not sufficient. He says that they do not set out with sufficient particularity the facts upon which the court could form an opinion that the Plaintiff was in the employment of all three companies. In particular he relies upon the following passage from the judgment of Kennedy C.J. in Brennan y Lockyer and Others ((1932) I.R. 100 at p. 107):
"It is necessary, in my opinion, that the affidavit should set out the facts which will enable the court to determine for itself where the contract was made and not to accept what is merely the deponent's opinion or conclusion upon undisclosed facts, without regard to the material upon which the interested party's conclusion is based. That, in my opinion, is one of the very matters to which, on an ex parte application of this kind, the long established rule requiring uberrima fides on the part of the applicant ought to be strictly applied."
While there is undoubtedly force in Mr McCullough's contention, I would have some hesitation in vacating the Order of 14th April 1988 if it were the only matter relied upon. The second ground advanced, however, is in my view clearly correct and necessarily leads to the vacation of the Order.
Order 11, Rule 1(e) of the Rules of the Superior Courts provides that service out of the jurisdiction may be allowed by the court whenever inter alia:
"(e) The action is one brought to enforce, rescind, dissolve, annul or otherwise affect a contract, or to recover damages or other relief for or in respect of the breach of a contract –
(i) made within the jurisdiction; or
(ii) made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction; or
(iii) by its terms or by implication to be governed by.Irish law or is one brought in respect of a breach committed within the jurisdiction of a contract wherever made......"
The present proceedings are brought in tort and clearly do not fall within this category of actions.- Mr Forde seeks to meet . this difficulty by submitting that.the cause of action in the present case also arises out of the deceased's contract with the three defendants. He says that where an action is brought by an employee against his employer claiming damages in respect of the employer's negligence, the action can also be brought in contract and.., that it is, accordingly, an appropriate case for the court to exercise its jurisdiction under sub-paragraph (e). In support of this proposition he relies on the decision of the Court of Appeal in Matthews v Kuwait Bechtel-Corporation ((1959) 2 Q.B. 57).
In that case, however, the writ had been amended so as to include a claim in respect of breach of contract before the application for service out.of the jurisdiction was made. Mr Forde's basic submission is undoubtedly correct and I see no reason why the principle of the English decision should not equally apply to a fatal accidents claim brought under Part IV of the Civil Liability Act 1961. But in the present case, if the order now being challenged and the service effected there under were allowed to stand, there would be nothing to prevent the Plaintiff from confining her proceedings to a claim for damages in respect of a tort committed outside the jurisdiction. This would not be consistent with the care which the courts must exercise in assuming a jurisdiction which normally belongs to other States. Nor is it possible for me at this stage to cure matters by purporting to alter retrospectively an order made by another . High Court judge on foot of which service has already-been effected. Such a method of procedure would be, in my view, wholly irregular.
If the Plaintiff's solicitor is correct in saying that the first and second named Defendants have minimal assets only, it is, of course, extremely important from her point of view that the third named Defendant be joined in the proceedings, assuming that there is at least an arguable cause of action arising against it. This can only be done, however, in accordance with the rules enacted, for good reason, governing service out of the jurisdiction. Since the accident happened on the 20th April 1986, there is still ample time within which a further application can be brought before the relevant period under the Statute of Limitations expires.
I should also point out that, according to the affidavit of service of the Plaintiff's solicitor, copies of the concurrent originating summons were served on the second and third named Defendants, although the Order only permits service of notice of the Summons in accordance with the procedure prescribed under order 11, Rule 8, where the Defendants are not citizens of Ireland. This, however, does not affect the validity of the Order being challenged and in any event no point is taken in relation to it on behalf of the second and third named Defendants.
For the reasons already given I must accede to the present application and vacate the Order dated the 14th April 1988.