IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
LOUGH NEAGH EXPLORATION LIMITED
S MORRICE & ASSOCIATES LIMITED
1. This is an appeal from an order of the Master (Chancery) made on 23 June 1998 dismissing with costs the action instituted by Lough Neagh Exploration Ltd ("the plaintiff") by writ of summons issued in February 1998. The defendants in the action, Susan Morrice ("Ms Morrice") and S Morrice & Associates Ltd ("the defendant company") made application to the Master by summons dated 1 May 1998 for an order to strike out the proceedings or otherwise that they be stayed on the ground that there was pending in the High Court in the Republic of Ireland an action between the plaintiff and the defendants involving the same causes of action and/or the same subject matter of dispute and on the ground that the action was frivolous, vexatious and an abuse of the process of the court.
2. On the hearing of the appeal Mr Morgan QC appeared with Mr Cregan on behalf of the plaintiff, being the appellant, while Mr Stephens QC appeared with Mr Millar on behalf of the defendants being the respondents to the appeal.
3. The appeal has raised a number of interesting and difficult points on the effect and interpretation of provisions of the Convention on the Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968 ("the Brussels Convention") in the context of the present proceedings.
THE IRISH PROCEEDINGS
4. Central to the defendants' case seeking to have the present Northern Ireland proceedings struck out is the proposition that in the Northern Ireland proceedings the plaintiff is in effect seeking to assert causes of action which were already before the Irish High Court on foot of proceedings instituted in the Republic of Ireland. It is thus necessary to consider in some detail the rather complicated background to the Irish proceedings.
5. The Irish proceedings were instituted by a plenary summons issued on 25 April 1997. Since the precise wording of the Irish plenary summons is material the entirety of the indorsement to the summons is set out in Annex 1 to this judgment. Ms Morrice, the first defendant in the Irish proceedings, a US citizen, resides and carries on business in Denver, Colorado in the United States of America. The defendant company and Priority Oil and Gas Ltd likewise were based in Denver, Colorado. When the plenary summons was issued it was considered that the court had power to hear and determine the plaintiff's claim under the provisions of the Brussels Convention, though this appears to have been misconceived in view of the place of residence and domicile of the first, second and third defendants. The fourth defendant in the proceedings was the Minister for Transport, Energy and Communications (" the Minister") who obviously was domiciled and resident within the jurisdiction of the Irish High Court. Subsequently by an ex parte motion under Order 11 of the Irish Rules of the Superior Courts (which is essentially similar to Order 11 of the Rules of the Supreme Court in this jurisdiction) the plaintiff sought leave to serve the proceedings on the first three defendants out of the jurisdiction. The grounding affidavit
sworn by the plaintiff's solicitors is particularly lacking in particularity stating in paragraph 4 that the plaintiff had initiated proceedings against the first named defendant for various relief including damages for breach of contract, breach of confidential information, breach of fiduciary duties, for conspiracy and conversion by the second and third defendants and an injunction to restrain any further steps being taken to obtain the grant of a petroleum prospecting licence which it was alleged the Minister was about to issue to the defendants. Paragraph 9 of the affidavit states:-
"I say that the Court should permit service out of the jurisdiction of the originating summons in this matter because
(a) the whole subject matter of the action is land situate or partly situate within the jurisdiction;
(b) the action is one brought inter alia to enforce a contract which was made within the jurisdiction;
(c) the action is founded on a tort committed within the jurisdiction;
(d) an injunction is sought to prevent wrongful acts being committed within the jurisdiction;
(e) the first, second and third defendants reside out of the jurisdiction and are necessary and proper parties to the action."
6. The words in italics in sub para (b) appear to point to an intention by the plaintiff to assert other claims apart from breach of contract and as noted the writ includes claims for breach of confidentiality and breach of fiduciary duties (which are equitable wrongs rather than torts stricto sensu).
7. Leave having been granted to serve out of the jurisdiction, the defendants entered unconditional appearances to the plenary summons and thereby submitted to the jurisdiction of the court. They did not apply to strike out those parts of the plenary summons which went beyond the causes of actions which it would have been permissible to pursue under Order 11. Two consequences flow from this. Firstly, the defendants accepted the jurisdiction of the Irish court to grant relief in accordance with the width of the claim. Secondly, it was open to the plaintiff to pursue its claim against the defendants in accordance with the width of the relief sought in the plenary summons.
8. The plaintiff company brought an interlocutory application for an interlocutory injunction to restrain the Minister from granting a petroleum licence to the first, second and third defendants and to restrain the defendants from taking any further steps to obtain a petroleum prospecting licence. It also claimed in wide terms an injunction restraining Ms Morrice from "breaching her contract with the company and breaching her fiduciary duties as a director of the plaintiff."
9. The Minister by notice of motion dated 25 July 1997 sought a mandatory injunction pending the trial directing the plaintiff company to deliver to the Minister all seismic field tapes in its possession, power and procurement that were created during the exploitation of Irish Onshore Petroleum Exploration Licence No 280 and pertaining to that part of the area known as the North West Carboniferous Basin ("NWCB") within the jurisdiction of the State and a mandatory injunction pending the trial of the action directing the plaintiff company to release all such tapes to the Minister.
10. Numerous and lengthy affidavits with voluminous exhibits were put before the High Court in Dublin in relation to those applications. A judgment was delivered on 8 August 1997 by Laffoy J. She declined to grant either the mandatory injunctions sought by the Minister or the injunctions sought by the plaintiff. She considered that the plaintiff would be adequately compensated in damages and that quantification of such damages would be possible. She further considered that a cross undertaking in damages by the plaintiff company would not be adequate.
SUMMARY OF THE PLAINTIFF'S CASE IN THE IRISH PROCEEDINGS
11. The affidavit evidence and supporting exhibits were formulated in the context of the interlocutory applications themselves and must be read accordingly. However, they do contain material showing the potential width of the plaintiff's claim. In his first affidavit sworn on 13 May 1997 Mr Kenny set out the background to the proceedings brought by the plaintiff company in some detail. For present purposes the plaintiff's case at this stage can be summarised as briefly as possible as follows.
12. The plaintiff company was incorporated in Northern Ireland in April 1981, originally being called Ulster Natural Resources Ltd, changing that name to the present name in July 1991. It was formed to carry out petroleum exploration activities in Northern Ireland and in the Republic of Ireland and elsewhere. It became active in exploration work in Northern Ireland in the mid 1980s.
13. The shares in the plaintiff company are held as to 10.28% by Mr James F Kenny and the balance is held by a separate company in Northern Ireland called Ulster Natural Resources Ltd (the name which the plaintiff company had ceased to use in 1991.) The shares in that latter company are held on a 50/50 basis by Mr James F Kenny and the first named defendant Ms Morrice.
14. An area of land which straddles the border between Northern Ireland and the Republic known as the NWCB (stretching from Counties Donegal and Mayo in the west to Counties Cavan, Monaghan and Armagh in the east) was believed to have the potential for petroleum deposits and had been the subject of prospecting in the years from 1960 onwards. Marathon Petroleum Corporation originally carried out extensive drilling in the area. Mr Kenny became involved with a number of Denver based companies conducting an enquiry into Irish onshore exploration in NWCB. In 1980 negotiations with the Minister in Dublin and the Department of Economic Development in Belfast for the granting of petroleum prospecting licences in the Republic and in Northern Ireland were entered into and Mr Kenny was able to negotiate with Marathon to acquire its exploration data. Mr Kenny then became involved with Marinex Petroleum plc in negotiations for a petroleum prospecting licence for a contiguous area of the NWCB and he secured the involvement of North West Oil and Gas Ltd and Aran Energy plc. He became managing director of North West Oil and Gas Ltd and a joint venture, Aran Onshore Ltd, was formed in conjunction with Aran Energy plc. In 1982 Mr Kenny met Ms Morrice who carried on consultancy work for North West at various times. Consequent on the expiry of the NWCB licences NW needed to acquire a petroleum licence interest in order to comply with stock exchange listing requirements. In 1987 Mr Kenny was involved in an application in respect of a substantial area of Northern Ireland in Counties Antrim and Londonderry. On the expiry of the terms of that licence a new licence was issued in 1988 for a smaller area, that licence bearing the number PL9/88. In 1989 North West's new management decided to discontinue petroleum exploration work. NW agreed to sell to Mr Kenny its petroleum assets comprising the licence PL9/88, seismic and other exploration data including well reports, consultants' reports etc relating to NWCB and the area covered by licence PL9/88. Mr Kenny in his affidavit alleged that he decided that all the data and related material would remain where it was at that time. Data in the possession of Ms Morrice remained in her possession and other data in store in England with Hayes Information Management was to remain where it was. Mr Kenny asserted that he was the sole authorised signatory for the Hayes Store material.
15. In December 1990 Mr Kenny assigned the data to the plaintiffs. Mr Kenny states that the principal objective of the plaintiff was to further the exploration programme in the area covered by PL9/88 and in the NWCB areas. Since late 1995 the plaintiff's exploration activities have been confined to seeking exploration partners who might be interested in entering into joint ventures in any area in which the plaintiff has exploration experience and data, the main areas being PL9/88 in Northern Ireland and the NWCB (which is partly in Northern Ireland and partly in the Republic).
"The consultant shall not except as authorised or required by her duties reveal to any person or persons or company any of the trade secrets or confidential operations, processes or dealings or any information concerning the organisation business financial transactions or affairs of the company which may come to her knowledge during the period of this agreement hereunder and shall keep with complete secrecy all confidential information entrusted to her and shall not use or attempt to use any information in any manner which might injure or cause loss either directly or indirectly to the company or its or their businesses or may be likely so to do."
17. In October 1995 Ms Morrice informed Mr Kenny that she was helping a Denver company Priority Oil and Gas Ltd ("Priority") as it was considering carrying out an economic study of the NWCB gas reserves and that Priority wanted access to relevant seismic data for NWCB to carry out its study. She asserted that the Department of Economic Development should have the information and that the plaintiff should not charge Priority for that information. In December 1995 the Department informed the plaintiff that it had received application for petroleum licences in Counties Fermanagh and Tyrone. They called on the plaintiff to produce the Marinex seismic data of 1982. In January 1995 Ms Morrice informed Mr Kenny that she wanted to concentrate her work in Ireland on NWCB, that they should terminate their relationship in Ulster Natural Resources and that Mr Kenny could work in the Lough Neagh area (PL9/88). No agreement was reached on that and Mr Kenny went to the Middle East in January 1996. On his return in February he learned from the Department of Economic Development that it had been in touch with Ms Morrice. Ms Morrice had agreed to the Department's request for copy seismic data. According to Mr Kenny it transpired that Ms Morrice had given instructions to Hayes to release information relating to seismic data to the plaintiff and that Ms Morrice had persuaded Hayes that she was authorised to give instructions for the release of the information. He also alleges that Ms Morrice had given instructions to Hayes to release data even before the department had written its letter to the plaintiff company to which Ms Morrice was purporting to respond. Paragraph 35 of Mr Kenny's affidavit is material and states:-
"I subsequently made further enquiries and I was able to establish in the first or second week of July 1996 that the DOED had given instructions of its intention to grant seven petroleum licences in Counties Fermanagh, Tyrone and Armagh, this being the general NWCB area within Northern Ireland, as far back as 22 March 1996. It was later brought to my attention that the DOED had, by means of an advertisement which appeared in the Belfast Gazette on 19 July 1996 announced that it had granted these licences to the second and third named defendants. ...Based on my knowledge of licence application processing procedures within the DOED it is clear that the first and second named defendants were engaged in discussions with the DOED and possibly also the Department of Transport, Energy and Communications within the Republic of Ireland, for several months before the plaintiff became aware of these activities, and before the first named defendant approached me on 1 January 1996 with her suggestion that she and (the plaintiff) would confine their exploration activities to the NWCB and the Lough Neagh basin respectively."
18. On 2 July 1996 an advertisement appeared in the Irish Independant Newspaper stating that the Minister intended to grant a non-exclusive petroleum prospecting licence to S Morrice & Associates Ltd and Priority Oil for certain lands in Counties Cavan, Leitrim, Roscommon, Sligo and Monaghan lying within NWCB. Mr Kenny asserted that in applying for the licence Ms Morrice was in breach of contract and in breach of her fiduciary duties as a director of Ulster Natural Resources. In paragraph 45 of the affidavit Mr Kenny deposed:-
"I say and believe and am advised that the actions of the first named defendant amount to a clear breach of her consultancy agreement with the plaintiff and in particular the terms relating to confidential information. I also say that her actions are a clear breach of her fiduciary duties to the plaintiff company. I say that it is clear that the first named defendant has not been acting in good faith towards the plaintiff and has not been acting in the best interests of (the plaintiff company). Further I say that the first named defendant has exercised her powers for purposes other than those for which they were conferred. I say that the first named defendant has put herself into a conflict of interest situation where her interests and those of the plaintiff have diverged."
"The above activities which are set out in this affidavit clearly show that the plaintiff is gravely prejudiced by the activities of the first, second and third named defendants. The activities in particular of the first named defendant, show that she has breached her contract with the plaintiff, that she has breached her fiduciary duties to the plaintiff, that she has sought to convert confidential and proprietary company information to her own use and that she has deprived the plaintiff of a corporate opportunity to which it is entitled. In addition, the activities of the first three defendants raise causes of action for breach of contract, breach of confidential information, breach of fiduciary duties, conspiracy, damages, conversion and the other relief set out in the plenary summons."
THE ISSUE OF SECURITY FOR COSTS IN THE IRISH PROCEEDINGS
20. By notice of motion dated 30 June 1997 Ms Morrice and the defendant company made application to the High Court pursuant to Order 29 of the Irish Rules for an order requiring the plaintiff to give security for costs and staying the proceedings until security was given. By second notice of the same date Priority likewise sought an order for security. Both applications were based on the proposition that the defendants had a good defence to the plaintiff's claim, that the plaintiff's claims were misconceived and that the plaintiff was a company without the means to pay the costs of the proceedings which were likely to be lengthy and complex.
21. On 27 August 1997 Laffoy J ordered that the plaintiff should provide security for costs. Her judgment records an acknowledgment by counsel for the plaintiff that on the evidence there is no reason to believe that the plaintiff would be able to pay the defendants' costs if they were successful in their defence.
22. Subsequently an application was made to fix the amount of the security for costs which were on 23 January 1998 assessed at [sterling]128,000 and ordered to be paid within six weeks. Even on the plaintiff's case it was recognised that the defendants' costs of the trial would be very substantial (estimated to exceed [sterling]320,000).
23. Subsequently by notice of motion dated 2 April 1998 the defendants sought an order striking out the plaintiff's claim for want of prosecution by reason of failure to deliver a statement of claim and in the alternative an order striking out the plaintiff's claim by reason of the plaintiff's failure to provide security for costs in accordance with the orders of 23 August 1997 and 23 January 1998.
24. By an order of O'Sullivan J made on 12 June the court struck out the plaintiff's claim by reason of its failure to comply with the order for security for costs. The plaintiff has appealed to the Supreme Court against that order by notice of July 1998. I was informed that the appeal is scheduled for hearing in the course of February 1999.
THE INSTITUTION OF THE NORTHERN IRELAND PROCEEDINGS
25. In February 1998 while the Irish proceedings were still proceeding and close to the expiry of the time limit for the provision of security for costs the plaintiff issued a writ in Northern Ireland. Since the full wording of the Northern Ireland writ is significant it is set it out in Annex 2 to this judgment.
26. By summons issued in May 1998 the defendants in the Northern Ireland proceedings applied to the Master (Chancery) for an order that the proceedings be dismissed or stayed on the ground that there were pending proceedings in the Irish High Court and on the basis that the Northern Ireland proceedings were an abuse of process.
27. The plaintiff's solicitor Sheena Ann Murphy, an associate partner in Wilson and Nesbitt in her affidavit stated that it was clear from the plenary summons in the Irish proceedings that the primary objective of the proceedings in Dublin was to avoid any petroleum prospecting licence being granted to the second or third defendants and stop the first defendant taking any steps which may or were likely to facilitate or assist in the granting of any such licence. She went on to state (presumably on the basis of instructions):-
"Both sets of proceedings in Northern Ireland and the Republic of Ireland relate to the distribution and passing on of information relating to seismic field tapes and associated documentation, information and exploration data relating to the North West Carboniferous Basin of Ireland."
"The areas of the NWCB that are within Northern Ireland fall within the jurisdiction of the Courts in Northern Ireland and not the jurisdiction of the Courts of the Republic of Ireland. By virtue of its geographical location, all seismic data and information relating to the Northern Ireland section of the NWCB has been obtained within Northern Ireland."
THE GROUNDS RELIED ON TO STRIKE OUT THE NORTHERN IRELAND PROCEEDINGS
29. Mr Stephens in his argument put forward a number of alternative grounds to uphold the Master's decision to dismiss the action. Firstly, he argued that the Northern Ireland proceedings fell within article 21 of the Brussels Convention and that the court should decline jurisdiction on the basis of lis alibi pendens. Secondly, in the alternative the case fell within article 22 of the Convention and the court should decline jurisdiction. Thirdly, the judgment of O'Sullivan J should be recognised under article 26 of the Convention. Fourthly, the Court should decline jurisdiction on common law principles as set out in MacShannon v Rockwear Glass Ltd  1 All ER 625. Fifthly, the matter was res judicata. Alternatively, the action should be struck out as an abused process under Order 18 rule 19 or under the inherent jurisdiction of the Court.
30. Mr Stephens contended that the proceedings in the Republic encompassed all the alleged breaches of contract and breaches of fiduciary duty that the plaintiff had and he called in aid the European Court of Justice ruling in Gubisch v Giulio Palumbo (Case 114/86)  ECR 4861 ("Gubisch"). A consideration of the Irish plenary summons, the affidavits and the Northern Ireland writ revealed the common nature of the proceedings north and south. If the causes of actions were not the same for the purposes of article 21 then the two sets of proceedings raised related issues for the purposes of article 22. Under ordinary domestic law principles the Northern Ireland proceedings were an abuse of process being an attempt to evade the order of the Irish Court and to avoid the results of litigation in another jurisdiction. The plaintiff's proceedings resulted in the defendants incurring considerable costs and expenses which the defendants have no prospect of recovering from the plaintiff company. The plaintiff has started fresh proceedings in Northern Ireland knowing full well that it cannot pay the defendants' costs if the defendants are successful. The court would inevitably direct security for costs against the plaintiff which the plaintiff would not be able to pay. In the result the proceedings in Northern Ireland are in a practicable sense hopeless. Mr Stephens contended that the Court could impose terms on the plaintiff if it were permitted to proceed with the action. Thus an "unless" order could be expressed in terms that unless the plaintiff company gave security for costs in the same sum as in the Dublin proceedings and undertook to provide suitable guarantees to indemnify the defendants in relation to losses caused by the proceedings the plaintiff's claim should be struck out.
31. In opposing Mr Stephen's submissions Mr Morgan contended that the claims in paragraphs 7, 8 and 9 of the indorsement were in respect of matters arising in relation to the prospecting licence made in the Republic of Ireland. The Dublin proceedings related to what had happened in the Republic or was likely to happen there. The Northern Ireland proceedings relate to what has happened in Northern Ireland. The licensing authorises were different in the two jurisdictions, the geographical areas were different, the remedies were different and the owner of the prospecting rights were different (the State in the Republic and the Crown in Northern Ireland). The argument that the plaintiff should have brought forth its full claim in the Republic proceedings was misconceived.
THE RELEVANT CONVENTION PROCEEDINGS
32. By virtue of article 1 of the 1978 Accession Convention entering into force in January 1987 in accordance with article 39 the United Kingdom on an international level acceded to the Convention on the Jurisdiction and Enforcement of Judgment in Civil and Commercial Matters known as the Brussels Convention having been signed at Brussels in September 1968. By the Civil Jurisdiction and Judgments Act 1982 the United Kingdom incorporated the Convention directly into United Kingdom law and section 51(1) applied the Act to Northern Ireland. Where proceedings fall within the scope of the Convention it is mandatory for the court to apply the Convention and its obligation does not depend on the matter having been pleaded by either party in the proceedings.
33. Article 1 defines the subject matter of legal relations to which the Convention is applicable viz civil and commercial matters. Revenue, customs and administration matters are inter alia excluded.
"(1) Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
(2) Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court."
"Where related actions are brought in the courts of different Contracting States, any court other than the court first seised may, while the actions are pending at first instance, stay its proceedings.
A court other than the court first seised may also on the application of any of the parties decline jurisdiction if the law of that court permits the consolidation of related actions and the court first seised has jurisdiction over both actions.
For the purposes of this article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings."
37. Title III of the Convention (entitled Recognition and Enforcement) contains provisions relating to the mutual recognition of judgments between Contracting States. In this context "judgment" is defined as any judgment given by a court or tribunal of a Contracting State, whatever the judgment may be called, including a decree, order, decision or writ of execution as well as the determination of costs or expenses by an officer of the court.
38. Article 26 provides that a judgment given in a Contracting State should be recognised in the other Contracting States without any special procedure being required and any interested party who raises the recognition of a judgment as the principle issue in a dispute may apply for a decision that the judgment be recognised. Article 27 sets out the circumstances in which a judgment will not be recognised. Article 29 provides that under no circumstances may a foreign judgment be reviewed as to its substance. Article 30 provides that a court of a Contracting State in which recognition is sought of a judgment given in another Contracting State may stay the proceedings if an ordinary appeal against the judgment has been lodged.
THE ISSUE UNDER ARTICLE 21 OF THE CONVENTION
39. Whilst article 21 is limited to concurrent proceedings in Contracting States it is not limited to proceedings under the bases of jurisdiction set out in the Convention. It applies where proceedings involve the same cause of action and proceedings have been commenced in two Contracting States under their traditional rules of jurisdiction. The European Court of Justice ("the ECJ") held in Overseas Union Insurance Ltd v New Hampshire Insurance Co  2 WLR 586 that there is no requirement that either party be domiciled in a Contracting State. Hence, in the present case the fact that the defendants in the Northern Ireland proceedings, being two of the defendants in the proceedings in the Republic, are domiciled in Colorado is irrelevant to the obligation of the court in this jurisdiction to decline jurisdiction under article 21 if the matter falls within that provision.
In Gubisch there was a dispute between Gubisch, a German company, and an Italian relating to a contract of sale. The Italian brought proceedings in Rome for a declaration that the contract was inoperative having been revoked or that it should be set aside or treated as discharged by reason of Gubisch's non-delivery of goods within the specified time. The German company on the other hand, had previously begun proceedings in Germany seeking payment under the contract. The European Court ruled that article 21 applied to cover a case such as that one when a party brought an action before a court in a Contracting State for the rescission or discharge of an international sales contract whilst an action by the other party to enforce the same contract was pending before a court in another Contracting State. Otherwise there was the possibility of irreconcilable decisions in two different jurisdictions, one upholding and enforcing the contract and the other striking it out.
40. The ECJ at paragraph 8 of its judgment stated:-"According to its preamble, which incorporates in part the terms of article 220, the Convention seeks in particular to facilitate the recognition and enforcement of judgment of courts or tribunals and has strengthened in the Community the legal protection of persons therein established. Article 21, together with article 22 on related actions, is contained in Section 8 of Title II of the convention; that section is intended, in the interests of the proper administration of justice within the Community, to prevent parallel proceedings before the courts of different Contracting States and to avoid conflicts between decisions which might result therefrom. Those rules are therefore designed to preclude insofar as is possible and from the outset the possibility of a situation arising such as that referred to in article 27(3), that is to say the non-recognition of a judgment on account of its irreconcilability with the judgment given in a dispute between the same parties in the state in which recognition is sought."
41. The ECJ went on to point out that in the procedural situation which had arisen in that case the same parties were engaged in two legal proceedings in different Contracting States which were based on the same "cause of action", which in that case the ECJ held was the same contractual relationship. The problem was whether those two actions had the same subject matter when the first sought to enforce the contract and the second sought its rescission or discharge. The question whether the contract was binding lay at the heart of the two actions. A judgment given in a Contracting State requiring performance of the contract would not be recognised in the state in which recognition was sought if a court in that state had given a judgment rescinding or discharging the contract. Such a result restricting the effects of each judgment to the territory of the state concerned would run counter to the objectives of the Convention which was intended to strengthen legal protection throughout the territory of the Community and to facilitate recognition in each Contracting State of a judgment given in any other Contracting State.
42. The ECJ gave further guidance on the matter in "The Maciej Rataj"  All ER (EC228), an admiralty action in which a reference was made to the ECJ by the English Court of Appeal in relation to article 21. In that case a cargo belonging to various principals was carried in bulk under separate bills of lading from Brazil to Rotterdam and Hamburg by a vessel owned by a Polish company. On delivery the cargo was found to be damaged. The ship owners brought an action in Rotterdam against a number of cargo owners for a negative declaration that the ship owners were not liable for the damage. Later some of the cargo owners brought proceedings in rem in London against the ship owner's vessel and another vessel owned by the same company which was later arrested. The ship owners contended that the English court should decline jurisdiction in favour of the Netherlands Court under article 21 of the Convention since the proceedings involved the same cause of action. Alternatively it was contended that the proceedings should be stayed under article 22. (There was also an issue not material in the present context whether articles 21 and 22 were not applicable because of the provisions of an international convention of 1952 for the unification of rules relating to the arrest of seagoing ships.) Having ruled that articles 21 and 22 of the Convention did apply the ECJ ruled that on its true construction the term "cause of action" in article 21 comprised "the facts and rule of law relied on as the basis of the action." This equates a cause of action more closely to what is understood by cause of action in domestic law as compared to the wider use of the term in Gubisch. The ECJ concluded that the action seeking to have a defendant held liable for causing damage and seeking damages had the same cause of action as earlier proceedings brought by the defendant seeking a declaration that it was not liable for the loss. In the relevant portion of its judgment the European Court ruled:-
"37. The national court's fifth question is essentially whether or on a proper construction of article 21 of the Convention an action seeking to have the defendant held liable for causing loss and ordered to pay damages has the same cause of action and same object as earlier proceedings brought by that defendant seeking a declaration that he is not liable for that loss.
38. It should be noted at the outset that the English version of article 21 does not expressly distinguish between the concepts of object and "cause" of action. That language version must however be construed in the same manner as the majority of the other langauge versions in which that distinction is made (see Gubisch)
39. For the purposes of article 21 of the Convention "the cause of action" comprises the facts and the rule of law relied on as the basis of the action.
40. Consequently an action for a declaration of non-liability, such as that brought in the main proceedings in this case by the ship owners and another action such as that brought subsequently by the cargo owners on the basis of shipping contracts which are separate but in identical terms concerning the same cargo transported in bulk and damaged in the same circumstances have the same cause of action.
41. The object of the action for the purposes of article 21 means the end the action has in view.
42. The question accordingly arises whether two actions have the same object when the first seeks a declaration that the plaintiff is not liable for damage as claimed by the defendants, or the second, commenced subsequently by those defendants seeks on the contrary to have the plaintiff in the first action held liable for causing loss in order to pay damages.
43. As to liability, the second action has the same object as the first since the issue of liability is central to both actions. The fact that the plaintiff's pleadings are couched in negative terms in the first action whereas in the second action they are couched in positive terms by the defendant who has become the plaintiff does not make the object of the dispute different."
43. The ECJ went on to deal with article 22 stating that since the aim of article 22 was to avoid the risk of conflicting judgments and thus facilitate the proper administration of justice in the Community the term "related actions" has to be interpreted broadly to cover all cases where there is a risk of conflicting decisions even if the judgment could be separately enforced and the legal consequences are not mutually exclusive.
44. It will often be difficult to determine whether proceedings in two separate Contracting States "involve the same cause of action" (which requires the court of the state in which the second set of proceedings are brought to decline jurisdiction) or are to be categorised as "related actions" (which give rise to a discretion in the court in that state to decline jurisdiction).
45. It is clear that the parties to the Convention intended that there should be a difference between the two situations. In his opinion in Gubisch Advocate General Mancini compared and contrasted articles 21 and 22 and opined that article 21 was intended to be very strict, concluding that the legislative traditions of so many of the signatory states to the Convention
were so unfavourable to the concept of lis pendens that the courts of the Contracting States would have complied with the obligation to decline jurisdiction only if that obligation had been conditional on straightforward and unequivocal criteria. He considered that the strong use of the adjective "same" showed that the choice was dictated by a special policy aim. The broad interpretation according to which the provisions should also be applicable in the case of actions which are different though based on the same legal circumstances ultimately confused matters which the Convention was designed to keep apart namely related actions and lis pendens. He concluded that the Italian claim for a declaration that the contract of sale in that case was inoperative differed from the German claim to enforce the contract but the actions were so closely connected that the case fell within article 22.
46. The ruling of the ECJ did not adopt the approach of the Advocate General on the facts of that particular case, clearly taking the view that the claims in the German and Italian proceedings were in reality two sides of the same coin and hence in reality raising the same cause of action for the purposes of article 22. The ECJ ruling does not provide more general guidance on distinguishing between cases falling within article 21 and those falling within article 22. The comments of the Advocate General are, however, instructive in highlighting the need in individual cases to determine under which article an individual case comes and in pointing to the conclusion that it must be a matter of degree in any case whether the proceedings are essentially the same or merely related. It is pointed out in Cheshire and North's Private International Law, 12th edition, that the decision in Gubisch tends to break down the distinction between articles 21 and 22.
47. In determining what claims were being pursued in the Irish proceedings and then determining whether they are the same cause of action as raised in Northern Ireland we start with the difficulty that the pleadings in the Dublin action had not gone beyond the widely worded and generalised plenary summons. The affidavits filed in the interlocutory injunction proceedings do not definitively oblige the plaintiff in the Irish proceedings to include within the pleaded statement of claim allegations of matters arising in Northern Ireland. Although reference is made to events within Northern Ireland in generalised terms the information is of background relevance to the injunctive relief being sought by the plaintiff company at that stage. Where parties are in a contractual or fiduciary relationship different breaches in different places and at different times can give rise to separate causes of actions, a fact recognised by Order 11 rule 1(e) relating to claims in respect of breaches of contract committed "within the jurisdiction" recognising the fact that separate breaches may occur within or outside the jurisdiction. A claim for breach of a contract within Northern Ireland will not have the same end in view or object as a claim arising out of a breach of contract occurring within the Republic even though both arise from the same contract. A general indorsement on a writ of summons in Northern Ireland and a plenary summons in the Republic under Order 18 rule 15 and Order 20 rule 6 of the Rules of Court in Northern Ireland and the Republic leave it open to a plaintiff in his statement of claim to "alter, modify or extend any claim made by him in the indorsement". In the absence of evidence making it clear that the Dublin proceedings included claims in respect of matters arising within Northern Ireland the court cannot conclude that the Irish proceedings necessarily involved the "same cause of action" for the purposes of article 21. That is a different question from the question whether the plaintiff company should have pursued or was free to pursue the Northern Ireland claims in the proceedings as instituted in Northern Ireland which raises issues under article 22 of the Convention and in respect of the issue of abuse of process.
THE ISSUE UNDER ARTICLE 22 OF THE CONVENTION
48. Having regard to the evidence adduced in this application it is clear that the proceedings in the Republic of Ireland and in Northern Ireland raise some inter-related and common issues of law and fact relating to the contractual and fiduciary relationship between the plaintiff and the defendants. Under article 22 where related actions (as defined by the article and as interpreted by the ECJ in The Maciej Rataj) are brought in courts of different Contracting States the court has a discretion to stay its proceedings while actions are pending at first instance in another Contracting State or alternatively to decline jurisdiction if the law permits consolidation of related actions and the court first seised has jurisdiction in both actions. The commonality of issues in the Republic of Ireland and in Northern Ireland is such that there is a risk of irreconcilable judgments resulting in the separate proceedings for as the European Court points in The Maciej Rataj this may occur even if the judgments can be separately enforced and their legal consequences are not mutually exclusive. I am satisfied that under Irish law there is a power to consolidate related actions and I am satisfied that the Irish Court would have jurisdiction to hear the claims which the plaintiff company wishes to pursue through the Northern Ireland proceedings, the defendants making it clear that they have submitted to the jurisdiction of the High Court in Dublin to hear and determine all issues between the parties.
49. Article 22 only comes into play while the actions are pending at first instance. The Irish High Court has effectively dismissed the plaintiff's claim and the proceedings are thus not pending at first instance in that jurisdiction. Advocate General Mancini in Gubisch in commenting on article 22, referring to the Jennard Report on the Convention points out that the proceedings in question must be pending at the same level of adjudication for otherwise the object of the proceedings would be different and one of the parties might be deprived of a step in the hierarchy of the courts.
THE ISSUE UNDER ARTICLE 26 OF THE CONVENTION
52. At common law under the domestic law of Northern Ireland an estoppel by res judicata necessitates proof that the previous decision was a final and conclusive decision on the merits, that the parties were the same and that the cause of action or issue before the court was identical with that previously determined. The judgment in the Republic was not a judgment on the merits nor can the court be clear what causes of action the judgment actually encompassed since the general indorsement of the writ left open to the plaintiff to widen or narrow the ambit of its claim.
53. The issue of recognition under article 26 can arise in three ways. Firstly, in order for a judgment to be enforced under the Convention it must be recognised. Secondly, recognition will apply on its own when a judgment is used as a defence to a new action. Thirdly, recognition can operate on its own in a more positive way, for example, to establish a title to property or by way of set off. It appears that it does not have to be shown that the judgment is final and conclusive or that the foreign judgment was on the merits.
54. The judgment of the High Court in Dublin if upheld on appeal will result in an order for costs against the plaintiff company which when taxed will give rise to an enforceable judgment debt. This would fall to be recognised in Northern Ireland and capable of enforcement in this jurisdiction subject to the fulfilment of the relevant procedural rules. Insofar as the judgment dismisses the plaintiff's claim as covered by the proceedings in the Republic it would have to be recognised in Northern Ireland to preclude the bringing of fresh proceedings pursuing the same claim in this jurisdiction or otherwise the judgment in the Republic dismissing the claim with costs might be inconsistent with a judgment awarded in Northern Ireland finding in favour of the plaintiff company and awarding it damages and costs which the plaintiff company could enforce in the Republic. It would thus be essential to determine what matters the plaintiff's claim in the Republic covered since those matters could not be relitigated in Northern Ireland.
55. If the plaintiff company were to attempt to bring fresh proceedings in the Republic such a claim would be inevitably dismissed as an abuse of process. It is inconceivable in such circumstances that the court would accept any argument that the plaintiff was free to bring fresh proceedings contending that it intended in the initial writ to cover only some aspects of its claims against the defendant and that the fresh proceedings covered other aspects of the claim which it had not intended to pursue in the first set of proceedings. If the plaintiff company successfully brings proceedings in Northern Ireland to recover judgment in this jurisdiction, recovers judgment and seeks the enforcement of the judgment in the Republic against any assets of the defendants there, it is arguable that the Irish Courts would be faced with a Northern Ireland judgment which in effect conflicted with the judgment of the Irish Court dismissing the earlier proceedings under a judgment which had the effect of precluding the plaintiff from bringing fresh proceedings arising out of matters which were actually or potentially encompassed within the original proceedings. This is a novel and difficult point which does not appear to be covered by authority. In view of my conclusions on the issue of abuse of process I do not consider that I need to resolve the point.
ABUSE OF PROCESS
56. Lord Diplock pointed out in Hunter v Chief Constable of West Midlands Police  AC 529 at 536:-
"(This case) concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to excise this salutary power".
57. At common law the traditional view of the English Courts was that it was not prima facie vexatious or an abuse of process to commence two actions about the same subject matter in England and another jurisdiction (Cohen v Rothfield  1 KB 410 at 414 per Scrutton LJ.) The traditional common law approach has moved through a series of cases leading to MacShannon v Rockwear Glass Ltd  AC 795, the Abidin Daver  AC 398 and The Spiliada Maritime Corporation v Cansulex Ltd  AC 460 and it is apparent that the courts have moved away from what Lord Diplock characterised as "judicial chauvinism" to a greater recognition of the principles of judicial comity in the context of the law of lis alibi pendens.
58. An example of the modern thinking is the case of Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank Ltd  3 All ER 65. In that case, the plaintiff a Queensland company, wished to raise extra capital by placement of shares and in 1978 entered into agreement with the defendant, an English merchant bank and five brokers for the placement of shares. The defendant and the bank were subsidiaries of an Australian bank. A dispute arose out of the performance of the contract. In July 1988 the plaintiff issued proceedings in England against the defendant but not the brokers claiming repayment of monies paid to the defendant for fees. In October 1988 the defendant served a defence and counterclaim claiming entitlement to remuneration on a quantum meruit. In the meantime the plaintiffs issued proceedings in Queensland against both the defendant and the brokers claiming damages for breach of contract. The plaintiff applied for a stay of the counterclaim in the English proceedings and offered to stay the English claim so as to permit the whole matter to be litigated in Queensland. Sir Nicholas Browne-Wilkinson VC (as he then was) held that a plaintiff who had initiated proceedings against the same defendant in two separate jurisdictions in respect of the same subject matter was required to elect which set of proceedings he wished to pursue. On the facts Queensland was the appropriate forum for the trial of the action and the court gave the plaintiff leave to discontinue the English proceedings. The learned judge at 57 stated:-
"What we have in this case, and so far as I know it has not previously arisen, is a case in which the same party has initiated proceedings in two separate jurisdictions, those proceedings raising either at the present time or inevitably in the future exactly the same issues. The plaintiff having itself invoked the two jurisdictions now applies for a stay of the counterclaim (which naturally arises out of the claim) on the terms that it merely stays its own existing action in this country. In my judgment where a plaintiff seeks to pursue the same defendant in two jurisdictions in relation to the same subject matter, the proceedings verge on the vexatious. I am not suggesting in any sense that the plaintiff in this case was being deliberately vexatious but the outcome is vexatious."
59. The maxims rei publicae interest ut sit finis litium and nemo debet bis vexari are widely accepted in various European court systems and represent guiding principles in the conduct of litigation. It is generally to be assumed that a party should, save in exceptional circumstances, bring forth his entire claim against his opponent at one time and the courts will endeavour to ensure that parties litigate their inter-related disputes at the one time in the interests of justice expedition and convenience. In the context of the duty on a party to rely on all available defences in litigation in the Australian High Court in Port of Melbourne Authority v Anshun Property Ltd  147 CLR 589 (discussed in my recent decision in Ulster Bank Ltd v Bell & Ors (unreported)) the majority judgment of Gibbs CJ Mason and Archer JJ stated:-
"... there will be no estoppel unless it appears that the matter relied upon as a defence of the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect we would need to record that there are a variety of circumstances some referred to in the earlier cases why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings."
(a) Under the plenary summons as issued in the Republic and in the light of the defendant's unconditional appearance it was open to the plaintiff to pursue those matters which it now wishes to pursue in the Northern Ireland litigations. While the Northern Ireland writ includes some additional matters these are matters which could easily have been added into the earlier proceedings by way of amendment to the Irish proceedings.
(b) That the plaintiff company was likely to include those matters in the Irish proceedings if those proceedings had continued is apparent from the affidavit evidence filed by the plaintiff in the injunction application.
(c) A plaintiff should ordinarily bring his full case against the defendant at the one time so as to avoid unnecessary duplication of proceedings, repetition of evidence and the incurring of unnecessary costs (see Anshun referred to above and the authorities discussed in Ulster Bank Ltd v Bell & Ors), bearing in mind that the key word in this context is "ordinarily" since justice in given situations may lead to the conclusion that a plaintiff should not be faulted in any given situation for not including a particular aspect of a claim.
(d) The Irish Court had jurisdiction and competence to deal with the matters occurring within Northern Ireland affecting the contractual and fiduciary relationship between the parties in this jurisdiction. It was argued that a subpoena could not issue out of the Irish Court to compel the attendance of witnesses from Northern Ireland (such as witnesses from the Department of Economic Development). I am, however, satisfied that the adduction of evidence relating to events in Northern Ireland would not have presented any insuperable difficulties to the plaintiff if the action had continued in the Republic and I consider that the suggestion of procedural difficulties represent something of an afterthought on the part of the plaintiff.
(e) The inference to be drawn from the timing and the nature of the Northern proceedings was that the plaintiff's decision to issue the proceedings in this jurisdiction was brought about by the difficulties facing the plaintiff in the future progress of the Irish proceedings as a result of the security for costs order.
(f) The plaintiff has no visible means or assets and indeed may be insolvent. It pursued litigation in Dublin (and continues the appeal to the Supreme Court) knowing that the defendants have no prospect of recovering costs against the plaintiff in those proceedings. It has no prospect of meeting an order for costs in this jurisdiction if the claim here were to continue but be unsuccessful. It is thus seeking to pursue two sets of proceedings when one would have been appropriate at a time when it knows that it cannot afford to pay the defendants' costs in either set of proceedings if the defendants are successful.
(g) Mr Kenny has refused to fund the litigation in the Republic and has refused to give any undertaking to meet the costs of the proceedings in Northern Ireland if the action proceeded and the defendants succeeded. It is clear that the costs of the action in Northern Ireland, if it is allowed to be pursued, will be very substantial.
(h) While it would be open to the court, if the action were to be permitted to be continued in this jurisdiction to make an early order for security for costs, (a fact recognised by the plaintiff in the course of argument) the plaintiff and Mr Kenny have failed or refused to indicate whether security would be provided or how such security would be met. A reasonable inference to be drawn from that is that the plaintiff could not comply with any reasonable order for security.
61. The inference which on a balance of probabilities I draw from the evidence and the circumstances leading to the bringing of the Northern Ireland proceedings is that the plaintiff originally intended to include all its claims against the defendants arising out of its contractual and fiduciary relationship with the defendants in the Republic and in Northern Ireland and that it instituted the Northern Ireland proceedings when it was faced with its present difficulties as a result of the order for security for costs.
62. Against the background of the increasing emphasis on judicial comity particularly within the European Union and between the Contracting States to the Brussels Convention, the principles relating to abuse of process are sufficiently wide and flexible to enable the court in this jurisdiction to prevent a party such as the plaintiff instituting fresh proceedings in circumstances such as prevail in the present case.
"I agree that it would be most unwise ... to lay down any definition of what is vexatious or oppressive or to draw a circle so to speak, round this court unnecessarily and to say that it will not move outside it. I would much rather rest on the general principle that the court can and will interfere whenever there is vexation and oppression to prevent the administration of justice being perverted for an unjust end."
THE IRISH PLENARY SUMMONS
ULSTER NATURAL RESOURCES LIMITED
SUSAN MORRICE, S MORRICE & ASSOCIATES LIMITED,
PRIORITY OIL AND GAS LIMITED AND THE MINISTER FOR
TRANSPORT, ENERGY AND COMMUNICATIONS
1. An Injunction (including where necessary, an Interim and/or an Interlocutory Injunction) preventing the First Named Defendant, her servants or agents, from breaching the terms of her contract with the Plaintiff.
2. An Injunction (including where necessary, an Interim an/or an Interlocutory Injunction) preventing and/or restraining the First Named Defendant from breaching her fiduciary duties as a director of the Plaintiff.
3. An Injunction (including where necessary, an Interim and/or an Interlocutory Injunction) preventing the First Named Defendant, her servants or agents, from using corporate opportunities without the consent and/or involvement of the Plaintiff.
4. A declaration that the activities of the First Named Defendant her servants or agents, in applying for a petroleum prospecting licence in the North West Carboniferous Region, is a breach of the First Named Defendant's fiduciary duties to the Plaintiff and that it has deprived the Plaintiff of a corporate opportunity to which it was entitled.
5. A declaration that the Second and Third Named Defendants in applying for a petroleum prospecting licence with the assistance of the First Named Defendant are engaged in a conspiracy to damage the interests of the Plaintiff.
6. An Injunction (including where necessary an Interim and/or an Interlocutory Injunction) preventing the First, Second and Third Named Defendants from using or misusing information which is properly the property of the Plaintiff in relation to the North West Carboniferous Region.
7. A declaration that any petroleum prospecting licence for the North West Carboniferous Region issued by the 4th Named Defendant is the property of the Plaintiff and is held on trust for the Plaintiff by the Second and Third Named Defendants.
8. An Injunction restraining the Fourth Named Defendant from issuing a licence to the 2nd and 3rd Named Defendants pending the determination of these proceedings.
9. A declaration that any licence issued by the Fourth Named Defendant should only be issued by the Fourth Named Defendant to the Plaintiff.
10. A declaration that the information rights in relation to the North West Carboniferous Basin are the property of the Plaintiff.
11. As against the First Named Defendant:
(i) Damages for breach of contract;
(ii) Damages for breach of fiduciary duties to the Plaintiff;
(iii) Damages for breach of confidential information;
(iv) Damages for conversion of the Plaintiff's proprietary information;
(v) Damages for breach of intellectual property rights;
(vi) Damages for intentional interference with the economic interests of the Plaintiff;
(vii) Interest pursuant to the Courts Act.
12. As Against the Second and Third Named Defendants:
(i) Damages for conspiracy;
(ii) Interest pursuant to the Courts Act.
13. Further and other relief.
THE NORTHERN IRELAND WRIT
1. Damages for loss and damage sustained by the Plaintiff by reason of the breach of contract of the First-named Defendant in and about an agreement in writing dated 25th July 1991 whereby the First-named Defendant was engaged by the Plaintiff as a consultant and, further, by reason of the breach of contract and for breach of fiduciary duty of the First-named Defendant as a director of the Plaintiff.
2. Alternatively, an account of all profits made by the First-named Defendant by reason of the breach of fiduciary duty of the First-named Defendant as aforesaid and an order for payment by the First-named Defendant to the Plaintiff of the sum so found upon the taking of an account.
3. An injunction to restrain the Defendants, and each of them, from reproducing without the licence of the Plaintiff, any seismic tapes, maps, diagrams or any other printed matter derived therefrom and relating to the North West Carboniferous Basin of Ireland without the express consent of the Plaintiff, and in particular from reproducing, parting with possession of or using same in support of any petroleum prospecting licence or application(s) for same.
4. An order for delivery up to the Plaintiff of all seismic tapes, and all maps, diagrams or any other printed matter derived therefrom, and all copies of same relating to the North West Carboniferous Basin of Ireland, and in the possession, power, custody or control of the Defendants.
5. An inquiry as to damages for infringement of copyright or, at the option of the Plaintiff, an account of profits earned by the Defendants by reason of their reproduction or dealings with the seismic tapes, maps and other documents derived therefrom.
6. An order for payment of all sums found due upon taking such inquiry or account, together with interest thereon, pursuant to the provisions of the Judicature (Northern Ireland) Act 1978.
7. Further and other relief.
1998 No 811
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
LOUGH NEAGH EXPLORATION LIMITED
S MORRICE & ASSOCIATES LIMITED
J U D G M E N T