High Court of Ireland Decisions

1. There are two applications before the Court. The first named Defendant seeks an Order striking out the Plaintiff's claim as against him or alternatively striking out the proceedings in their entirety on the grounds of want of jurisdiction and/or as constituting an abuse of process. The Plaintiff seeks an Order pursuant to Order 9, Rule 15 of the Rules of the Superior Court declaring the service on the first named Defendant's wife on the 18th October, 1995 be deemed sufficient service on the first named Defendant.

2. A number of affidavits have been filed on behalf of the parties. The facts in relation to service are disputed both as to the mode of service and in any event as to its validity.

3. A private investigator received instructions from the Plaintiff's solicitors on the 16th October, 1995 to serve these proceedings on the first named Defendant. The address set out on the summons was "the Laurels", Carlow. Having found the telephone number in the telephone book, he rang "the Laurels" and asked for the first named Defendant. The person who answered said that the Defendant was not there at that time and was not sure if he would be back. The summons server went down to Carlow on the following day and spoke to the same person on an intercom at the gate of the home. He was told that the Defendant was not there and that that person did not know what time he would be home.

4. On the following day he called to the house at approximately 5.15 p.m. He was unable to get in. At 6 o'clock a woman drove up who said that she was his wife. She said that she thought the Defendant was in Germany. I am satisfied that the person with whom the summons server was dealing was at all times the Defendant's wife.

5. She disputes the facts deposed to by the summons server. She says that there were a number of telephone calls. She says that she was not prepared to give information but does not deny having told the summons server what he says he was told. She says that she was made uneasy and avers that the basis of this unease was the failure by the summons server to say why he wanted to speak to the Defendant. While there is an implication that he was asked a question which he refused to answer there is no specific averment to that effect. This in any event is specifically denied by the summons server.

6. There was no real dispute as to what occurred when the document was given to the Defendant's wife. The conditions under which it is alleged that it was given to her are accepted.

7. From these several averments and cross averments, it seems to me that the summons server made it clear to the Defendants wife that he was looking for the Defendant and that he was led to believe that while he was not at home at the time of his enquiries he would be returning. Save what he was told on the 18th October there was nothing to suggest that he was returning from abroad rather than that he was out for the time being. As regards the mode of service, the wife clearly had an opportunity to read the document which is very short. I accept that the mode of service was a proper one.

8. The real issue which arises is whether the Defendant could validly have been served by service on his wife. Jurisdiction of our Courts is based upon presence within the jurisdiction. It is submitted on behalf of the Defendant that he could not have been validly served since he was permanently resident and domiciled out of the jurisdiction and was not within the jurisdiction on the date of the alleged service. He relies upon the decision in Laurie -v- Carroll 98 CLR 310. I accept this case as deciding that service within the jurisdiction cannot in general be effected when the Defendant sought to be served is not within the jurisdiction. An exception to this general rule may arise when the Defendant has left the jurisdiction to avoid service.

9. The fact that the Defendant is not normally resident nor domiciled within the jurisdiction is immaterial. Submission to the jurisdiction is not founded on allegiance but on presence within the jurisdiction. I make no finding upon whether the Defendant is normally resident within or domiciled in this jurisdiction. However, a statement as to the belief of ones domicile is insufficient. Domicile of choice which is what is claimed in the present instance depends upon the establishment of a permanent home in the country of choice and an intention to remain permanently in such country. The facts put before the Court on this issue are totally insufficient to decide the issue assuming a need to do so.

10. In my view, what is important is to determine the whereabouts of the Defendant on the 16th, 17th and 18th October, 1995. I am satisfied that on the evidence of the summons server that there is prima facie evidence of his presence on these dates. If his wife on the 17th did not know what time he was to return, it must be assumed that he did return and was at home at least on the morning of the 18th. But again there is no suggestion by his wife that he had gone to Germany or the Continent, as she deposes she would have said, that day. Save for the averment in paragraph 3 of her affidavit there is no denial that the Defendant was in the jurisdiction on the dates concerned. No specific denial as to his presence on the 16th, 17th or 18th within the jurisdiction is made either by the Defendant or by his wife.

11. In relation to these matters there is much in the affidavits of the Defendant which is evasive and which places doubt on other averments made by him. Once there is prima facie evidence of his presence in the jurisdiction, the onus to disprove this passes to him. In my view this onus has not been discharged.

12. I will deem good the service actually effected.