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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Farley v Mapfre Asistencia & Ors. (Approved) (Rev1) [2025] IEHC 304 (30 May 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC304.html
Cite as: [2025] IEHC 304

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APPROVED                                                             [2025] IEHC 304

 

 

 

THE HIGH COURT

 

2018 9665 P

 

 

BETWEEN

 

LAURAINE FARLEY

 

PLAINTIFF

 

 

AND

 

 

MAPFRE ASISTENCIA COMPANIA INTERNACIONAL DE SEGUROS Y REASEGUROS, S.A.

 

MICHAL JAN KULKA

 

 

DEFENDANTS

 

 

 

JUDGMENT of Mr. Justice Garrett Simons delivered on 30 May 2025

 

 

Introduction

1.             This judgment addresses a number of jurisdictional issues arising out of an accident which befell an individual, who is domiciled in Ireland, while she was on holiday in Tenerife, Canary Islands.  The injured party had rented an apartment through the online platform booking.com.  The injured party suffered a slip and fall type accident while in the apartment.  It is alleged that the accident had been caused by the presence of water on the floor of the apartment which had leaked from a defective air conditioning unit.  It is further alleged that the (supposed) failure to maintain the apartment in a safe condition constitutes a breach of contract on the part of the apartment owner.

2.             Rather than pursue an action before the Spanish Courts, the injured party, instead, instituted personal injuries proceedings before the High Court in Ireland.  The injured party contends that the Irish State has jurisdiction to entertain the action under Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("Brussels I Regulation (recast)").  Two defendants have been named in the proceedings.  The first is an insurance company which the injured party contends had written a policy of insurance in respect of the apartment.  The second defendant is the owner of the apartment.  The defendants are domiciled in Spain and Poland, respectively.

3.             Each of the defendants has brought a motion seeking to set aside service of the proceedings on the grounds that jurisdiction has not been established under the Brussels I Regulation (recast).  The injured party, the plaintiff, has brought her own motion seeking to join a different insurance company to the proceedings.

 

 

Applicable law of the claim

4.             It may be useful to the reader to highlight from the outset that this judgment is principally concerned with the question of whether the Irish Courts have jurisdiction to entertain the claim against the various foreign defendants.  The question of whether the applicable law of the claim will be Irish law or Spanish law is a separate question.  The term "applicable law" is used here to refer to the law which will govern the substance of the claim (as opposed to evidence and procedure).  The applicable law will govern matters such as the assessment of damages and limitation periods. 

5.             The applicable law in relation to contractual claims is governed by Regulation (EC) No 593/2008 ("Rome I"), with non-contractual claims governed by Regulation (EC) No 864/2007 ("Rome II").

6.             In the present case, even if it were to be established that the Irish Courts have jurisdiction to entertain the claim, it does not necessarily follow that the applicable law would be Irish law.  The Irish Courts might have to apply Spanish law to the substance of the claim.  In such a contingency, were the injured party to succeed in liability, damages might have to be assessed by reference to the tariff-based approach under the Baremo.

7.             The identification of the applicable law will ultimately be a matter for the trial judge.  It has, however, been necessary for various of the parties to stake a position on two aspects of the applicable law as follows. 

8.             First, the parties are agreed that the question of whether an injured party has a direct action against an insurance company, which has provided insurance cover to the alleged wrongdoer, falls to be determined by reference to Spanish law.  Expert evidence was adduced in this regard as to the implications of Article 76 of Law 50/1980 of the Spanish Insurance Contracts Act (Ley de Contrato de Seguro).  It should be explained that whereas the defendant insurance company accepts, in principle, that Spanish law applies, it denies that it wrote the policy of insurance and further denies that the policy extends to the use of the apartment for the purpose of holiday accommodation.  It is also submitted that the policy of insurance is subject to a geographical limit which confines coverage to claims lodged before the Spanish Courts.

9.             Second, the injured party has been prepared to assume, at least for the purpose of the application to set aside service, that the limitation periods relevant to a direct action against an insurance company are governed by Spanish law.  This assumption becomes significant in the context of the application to join Mapfre España as a defendant: see paragraphs 53 to 56 below.

10.         As an aside, it should be noted that the Personal Injuries Assessment Board ("PIAB") also took the view that the limitation period may be governed by foreign law.  For this reason, PIAB exercised its discretion to issue an authorisation without first making an assessment of the amount of damages.

 

 

Jurisdictional "gateways"

11.         The injured party/plaintiff seeks to rely on two "gateways" under the Brussels I Regulation (recast) to establish jurisdiction as follows: (i) Article 13 which determines jurisdiction in matters relating to liability insurance, and (ii) Article 18 which determines jurisdiction in matters relating to a consumer contract.  These gateways are based on the principle that the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules ("protective jurisdiction").  These two gateways are addressed, in turn, below.

 

Liability insurance

12.         Article 13(1) provides that in respect of liability insurance, the insurer may, if the law of the court permits it, be joined in proceedings which the injured party has brought against the insured.  Article 11 is stated to apply to actions brought by an injured party directly against the insurer.  Article 11(1)(b) provides, in relevant part, that an insurer domiciled in a Member State may be sued in another Member State in the case of actions brought by the policyholder, the insured or a beneficiary.  In such a case, the courts for the place where the claimant is domiciled have jurisdiction.

13.         The Court of Justice interpreted the equivalent provisions of the precursor of the Brussels I Regulation (recast), i.e. Regulation (EC) No 44/2001, as meaning that the injured party may bring an action directly against the insurer before the courts for the place in a Member State where that injured party is domiciled, provided that a direct action is permitted and the insurer is domiciled in a Member State: FBTO Schadeverzekeringen NV v. Odenbreit, Case C-463/06, EU:C:2007:792. 

14.         The parties are in broad agreement on the legal principles governing the determination of jurisdiction in matters relating to liability insurance.  In particular, it appears to be accepted that the question of whether a direct action is permitted against an insurer is to be assessed by reference to Spanish law as the applicable law (rather than by reference to Irish law).  It is also accepted that Spanish law does allow for a direct action: Article 76 of Law 50/1980 of the Spanish Insurance Contracts Act.  The dispute between the parties in the present proceedings consists, largely, of a factual disagreement as to whether the first named defendant, Mapfre Asistencia, is the insurer, or whether, alternatively, the actual insurer is a different company within the larger group of Mapfre companies. 

15.         For completeness, it is necessary to address a separate argument advanced on behalf of the injured party/plaintiff in respect of the determination of jurisdiction in matters relating to liability insurance.  This argument is predicated on Article 13(3) of the Brussels I Regulation (recast) which states that if the law governing such direct actions provides that the policyholder or the insured may be joined as a party to the action, the same court shall have jurisdiction over them.  Counsel submitted, by reference to the judgment in Odenbreit (cited above), that an injured party would be entitled to sue an insured tortfeasor in the injured party's home court in circumstances where proceedings were properly taken against the insurer in the same court.  Put otherwise, it was said that where jurisdiction is founded against an insurer, pursuant to Article 13(1), this acts as an anchor for a claim against the insured in the same court.  It was further submitted that the Irish Courts have jurisdiction against the apartment owner qua the insured, and that it was not necessary, strictly speaking, to rely additionally upon Article 18 which determines jurisdiction in matters relating to a consumer contract.

16.         The parties were invited by this court, at the conclusion of the hearing, to consider the more recent judgment of the Court of Justice in BT v. Seguros Catalana Occidente B, Case C-708/20, EU:C:2021:986.  The proceedings were relisted on 7 May 2025 to hear further from the parties.  On that date, counsel for the injured party/plaintiff conceded, very fairly, that this judgment is a complete answer to the above argument. 

17.         The facts of BT v. Seguros Catalana Occidente B were broadly similar to those of the present case.  The injured party, BT, pursued a claim for personal injuries in the Member State of her domicile in relation to an accident which had occurred at a rental property while she was on holiday in Spain.  The property owner was domiciled in another Member State.  The injured party joined both the insurer of the property and the owner as defendants.  The injured party asserted that her home courts had international jurisdiction over the insurer by virtue of Article 11(1)(b) and Article 13(2), and over the property owner by virtue of Article 13(3).

18.         The Court of Justice held that Article 13(3) determines jurisdiction "in matters relating to insurance" alone.  This excluded claims other than those arising out of an insurance relationship between the parties.  The position is stated as follows at paragraphs 30 and 31 of the judgment:

"It must therefore be considered that, in order to justify the application of the special rules of jurisdiction laid down in Section 3 of that regulation, the action before the court must necessarily raise a question relating to rights and obligations arising out of an insurance relationship between the parties to that action.

 

That interpretation of the concept of 'matters relating to insurance' implies that a claim brought by the injured person against the policyholder or the insured cannot be considered to be an insurance claim merely because that claim and the claim made directly against the insurer have their origin in the same facts or there is a dispute between the insurer and the injured person relating to the validity or effect of the insurance policy."

 

19.         It was further held that in circumstances where an action for damages has been brought by the injured person directly against an insurer and the latter has not brought such an action against the insured, the court seised cannot rely on Article 13(3) to take jurisdiction over the insured.

20.         The practical effect of the judgment in BT v. Seguros Catalana Occidente B is that Article 13(3) must be understood as only permitting the joinder of the insured as a third party to the proceedings at the instance of the insurer, i.e. as a weapon against fraud and to prevent different courts from handing down irreconcilable judgments.  Article 13(3) does not permit an injured party to join the insured as an additional defendant.

 

 

Consumer contracts

21.         Section 4 of the Brussels I Regulation (recast) provides that a consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled, or, regardless of the domicile of the other party, in the courts for the place where the consumer is domiciled.  This represents a derogation from the general rule that persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State (Article 4).  It also represents a derogation from the special rules governing jurisdiction in contractual disputes simpliciter, i.e. that in matters relating to a contract, proceedings should be pursued before the courts for the place of performance of the contractual obligation (Article 7).

22.         Insofar as relevant to the present proceedings, a consumer contract includes a contract which has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.

23.         The leading judgment on what is meant by the phrase "directs such activities to" the Member State of the consumer's domicile is that of the Court of Justice in Pammer, Joined Cases C-585/08 and C-144/09, EU:C:2010:740.  The principles enunciated in that judgment have recently been applied by this court in Casey v. Redspokes Ltd [2023] IEHC 297. 

24.         It is not necessary, for the purpose of the resolution of the present proceedings, to consider this case law in any detail.  This is because the apartment owner is prepared to accept—at least for the purpose of his set aside motion—that an entity who avails of an international platform such as booking.com to advertise an apartment for rent as holiday accommodation can be said to be "directing" commercial activities to the Irish State.  The apartment owner accepts, in principle, that the rental agreement in respect of the apartment comprises a "consumer contract" for the purpose of the Brussels I Regulation (recast).  As discussed at paragraphs 66 to 76 below, the apartment owner advances his set aside motion on a much narrower basis, namely that the rental agreement for the apartment was entered into between the injured party/plaintiff and a lease management company. 

25.         For the avoidance of any doubt, the within judgment should not be understood as entailing any finding to the effect that the use of an international platform, such as booking.com, to advertise a holiday apartment for rent necessarily satisfies the criteria identified in Pammer.  This issue has not been fully argued in this case, and, accordingly, no finding has been made in this regard.

26.         The Court of Justice has confirmed, in Club La Costa, Case C-821/21, EU:C:2023:672, that the expression "other party to a contract" in Article 18(1) must be understood as referring only to the natural or legal person who is a party to the contract in question and not to other persons, not parties to that contract, even if they are connected with that person.  The fact that a consumer's contracting partner belongs to a group of companies does not allow that consumer to bring an action before the courts of the Member State in which each company belonging to that group is domiciled.

 

 

Legal threshold governing set aside application

27.         The Rules of the Superior Courts provide a procedure whereby a determination on whether the Irish Courts have jurisdiction to entertain proceedings against a foreign defendant can be obtained in advance of a full trial.  A foreign defendant, who wishes to contest jurisdiction, may apply pursuant to Order 12, rule 26 for an order to set aside service upon him of the summons or of notice of the summons.  The defendants have each filed a notice of motion in this regard.

28.         (The notices of motion were filed prior to the amendment of Order 12, rule 26 by the Rules of the Superior Courts (Order 11) 2024.  The amendment allows for the filing of an appearance contesting jurisdiction or a notice contesting the service of the summons or originating document or notice thereof).

29.         The purpose of providing for a set aside application is to allow for any contest on jurisdiction to be determined expeditiously as a preliminary issue.  In the absence of such a procedure, a foreign defendant, who has been improperly joined to proceedings, would have to incur the trouble and expense of having to participate in the trial of an action. 

30.         There has been much discussion in the case law as to the legal threshold which should govern a set aside application.  The term "legal threshold" is used here to refer to the threshold which a plaintiff must meet to establish jurisdiction.  If the threshold is fixed too high, then there is a risk that a set aside application will become a mini trial, with all the attendant costs and delay.  This would defeat the objective of expedition which the making of provision for a set aside application is intended to achieve.  There is also the risk that the determination of the set aside application will trespass on the substantive merits of the proceedings.  If, conversely, the threshold is fixed too low, then this may, in some instances, result in a foreign defendant being brought to this jurisdiction to answer a claim which has no reasonable prospect of being proven.  Again, this tends to undermine the purpose of allowing for a set aside application.

31.         Before turning to consider the domestic case law, it is instructive to consider the judgment of the Court of Justice in Kolassa v. Barclays Bank, Case C-375/13, EU:C:2015:37.  This judgment was delivered in response to a request for a preliminary ruling.  Relevantly, one of the questions referred related to the "verification obligations" to which national courts are subject in the course of determining their international jurisdiction.  In brief, the referring court had asked whether it is necessary to conduct a comprehensive taking of evidence in relation to disputed facts, or whether, alternatively, it should be assumed that the facts asserted by a claimant alone are correct for the purposes of the decision on jurisdiction.

32.         The Court of Justice commenced its answer by reiterating that the extent of the verification obligations to which national courts are subject is an aspect of national procedural law that the precursor to the Brussels I Regulation (recast) was not intended to unify.  This is subject to the proviso that the application of the relevant national laws must not impair the effectiveness of the Regulation.

33.         The Court of Justice reiterated that the aim of legal certainty requires the national court seised to be able readily to decide whether it has jurisdiction, without having to consider the substance of the case.

34.         The Court of Justice answered the question referred as follows (at paragraphs 63 to 65):

"It must be observed that an obligation to conduct, at that early stage, a comprehensive taking of evidence as regards the facts relevant both to jurisdiction and substance risks prejudicing the assessment of the substance.

 

Although the national court seised is not, therefore, obliged, if the defendant contests the applicant's allegations, to conduct a comprehensive taking of evidence at the stage of determining jurisdiction, it must be pointed out that both the objective of the sound administration of justice, which underlies Regulation No 44/2001, and respect for the independence of the national court in the exercise of its functions require the national court seised to be able to examine its international jurisdiction in the light of all the information available to it, including, where appropriate, the defendant's allegations.

 

Having regard to the foregoing, the answer to Question 4 is that, in the context of the determination of international jurisdiction under Regulation No 44/2001, it is not necessary to conduct a comprehensive taking of evidence in relation to disputed facts that are relevant both to the question of jurisdiction and to the existence of the claim.  It is, however, permissible for the court seised to examine its international jurisdiction in the light of all the information available to it, including, where appropriate, the allegations made by the defendant."

 

35.         The judgment of the Court of Justice indicates that a national court enjoys a margin of discretion as to the extent, if any, to which it engages with disputed facts in the context of an application to determine whether it has international jurisdiction over a claim.  The national court is not obliged simply to assume that the facts asserted by a claimant alone are correct.

36.         Turning now to the domestic case law, the leading judgment is that in Irish Bank Resolution Corporation Ltd v. Quinn [2016] IESC 50, [2016] 3 IR 197 ("IBRC v. Quinn").  There, the Supreme Court rejected an argument that, in determining international jurisdiction, a court should confine itself to a consideration of the statement of claim and assume the pleaded claim to be capable of proof.  See paragraphs 53 and 54 of the reported judgment:

"[...] In my view the trial judge was completely correct to suggest that it would, at least in many cases, be inadvisable simply to take the statement of claim as being necessarily capable of proof.  Rather, as the trial judge suggested, the court should come to a view as to whether it has been established that whatever is alleged may be reasonably capable of being proven in evidence to an extent that a judge might reasonably hold in favour of the plaintiff.  It is not necessary for a plaintiff to establish, on affidavit evidence, a prima facie case.  Rather the plaintiff is required to put forward sufficient evidence on affidavit to meet the test identified by the trial judge which is that its case is, both on the law and the facts, reasonably capable of being proven.

 

The issue, at the stage of an application for leave to serve outside the jurisdiction or to set aside such leave, is simply whether it is appropriate to bring the defendant to this jurisdiction to answer the claim.  The low barrier is designed to exclude imposing on defendants the obligation to come to Ireland to defend cases which have no prospect of being capable of being proven.  The bar needs to be seen in the light of that underlying requirement.  [...]."

 

37.         The Supreme Court had earlier rejected (at paragraph 43) a suggestion that the court is engaged in some sort of assessment of the relative strengths of the respective parties' cases:

"[...] The suggestion that there was something wrong with reliance on evidence which was not subject to being tested is, in the context of the precise issue with which the court was concerned, misplaced.  The court was concerned with whether there was a claim sufficient to warrant proceedings being brought.  The time to test whether that claim can actually be made out is at the trial when there will be every opportunity to test the credibility of any evidence proffered. Except in quite extraordinary circumstances it is difficult to envisage on what basis it could be contended that there should be a testing of evidence purely designed to meet a very low threshold of demonstrating that the plaintiff has a claim which is reasonably capable of proof."

 

38.         The judgment in IBRC v. Quinn was delivered in the context of proceedings where leave to issue outside the jurisdiction had been granted under Order 11 of the Rules of the Superior Courts.  Put otherwise, the proceedings in Quinn were not subject to the Brussels I Regulation.

39.         There was some discussion between this court and counsel, at the hearing, as to whether a modified threshold might pertain in a Brussels I Regulation (recast) case as compared to an Order 11 case.  In particular, there was discussion as to the implications of the judgment in Ryanair Ltd v. Unister GmbH [2013] IESC 14, [2013] 1 IR 177.  There, the Supreme Court observed, obiter dicta, that a court which is called on to consider whether it has jurisdiction under the Brussels Regulation will be required, at least in some cases, to determine questions of fact which may be material to the very question of jurisdiction even though some of the same questions of fact may also be material to the substantive issues which arise in the proceedings generally (ibid, paragraph 51).  This judgment was cited with approval by the Supreme Court in Ryanair Ltd v. Billigfluege.de GmbH [2015] IESC 11 (at paragraphs 29 and 30).  The latter judgment appears to suggest that if and insofar as it is necessary to determine questions of fact, for the purpose of determining whether the court has jurisdiction over the claim, the operative standard of proof is the balance of probabilities. 

40.         It appears, therefore, that there are, potentially at least, two approaches to the determination of jurisdiction as a preliminary issue in advance of the trial of the action.  The first involves a limited assessment, usually on incomplete evidence, of whether the claim meets the threshold of being reasonably capable of being proven.  The second involves the determination of jurisdictional facts on the balance of probabilities. 

41.         The consensus between the parties is that the threshold identified in IBRC v. Quinn pertains to the present proceedings, notwithstanding that jurisdiction here is asserted under the Brussels I Regulation (recast) rather than under Order 11.  The threshold is that the plaintiff has a claim which is "reasonably capable of proof".  The parties cited the judgment of Barniville J. (as he then was) in Trafalgar Developments Ltd v. Mazepin [2022] IEHC 167 as an example of a case where this threshold was applied in respect of a claim under the Brussels I Regulation (recast).

42.         Having regard to this consensus between the parties, and to the decision of the Court of Justice in Kolassa v. Barclays Bank, this judgment has been prepared on the working assumption that—at least in cases where international jurisdiction is asserted by reference to the protective jurisdiction under the Brussels I Regulation (recast) in matters relating to liability insurance and consumer contracts—the threshold to be surmounted is that the plaintiff has a claim under the relevant gateway which is "reasonably capable of proof".  This is subject to the caveat that a different threshold may pertain in cases where jurisdiction is asserted by reference to a choice of jurisdiction agreement under Article 25 (Ryanair Ltd v. Billigfluege.de GmbH [2015] IESC 11 (at paragraph 47)).

43.         For completeness, it should be recorded that even if a set aside application is governed by the higher threshold of "balance of probabilities", this would not have affected the outcome in the present proceedings.  This is because there is very little factual dispute between the parties: the real disagreement is in relation to the inferences to be drawn from the documentary evidence. 

44.         The insurance company's set aside motion would have succeeded by reference to either standard.  As elaborated upon below, there is no evidence before the court which indicates that Mapfre Asistencia was the insurer of the apartment.  Rather, the documentary evidence all points in the other direction.  The plaintiff's claim fails to meet even the lower threshold of "reasonably capable of proof", still less the higher threshold. 

45.         The apartment owner's set aside motion would not have succeeded by reference to either standard.  As elaborated upon below, the documentary evidence indicates that it is more likely than not that the lease management company was acting as agent of the apartment owner when entering into the rental agreement for the apartment.  If and insofar as it had been necessary to do so, this court would have made a finding that, on the balance of probabilities, the apartment owner is "the other party" to a consumer contract for the purpose of Article 18 of the Brussels I Regulation (recast).

 

 

Discussion and Decision

 

(1).    Motion to join defendant (Mapfre España)

46.         The first motion to be dealt with is the motion on behalf of the injured party/plaintiff to join a different insurance company as a defendant to the proceedings.  For ease of exposition, the current defendant will be referred to as "the impleaded insurer-defendant", and the proposed new defendant as "the intended insurer-defendant".  The plaintiff's motion is in response to the motion brought by the impleaded insurer-defendant to be released from the proceedings.  However, it is convenient to address the plaintiff's motion first, notwithstanding that it had been filed second in time.  This is because, as explained presently, the outcome of the plaintiff's motion renders the other motion moot.

47.         The plaintiff's motion is brought pursuant to Order 15, rule 13 of the Rules of the Superior Courts.  This rule provides, in relevant part, that a defendant may be added to proceedings in circumstances where the intended defendant's presence may be necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter.  The intended defendant is not put on notice of the joinder application but will have a right to apply to set aside the joinder thereafter.  The threshold for a joinder application is generally a low one.

48.         Matters are complicated in the present case by the fact that the party to be joined is domiciled outside the Irish State, and jurisdiction is being asserted under the Brussels I Regulation (recast).  Useful guidance on the approach to be taken in such circumstances is provided in Ryanair Ltd v. Unister GmbH [2013] IESC 14, [2013] 1 IR 177 (at paragraphs 66 to 78).  The Supreme Court rejected an argument that it would be inappropriate, while a jurisdictional challenge is pending, to make an order joining a co-defendant.  The Supreme Court held that such an order has no effect on the jurisdictional challenge.

49.         There is no requirement under the Brussels I Regulation (recast) to apply for the leave of the court prior to the service of proceedings on a foreign defendant.  Accordingly, had the intended insurer-defendant been joined to the proceedings from the outset, it would not have been necessary for the injured party/plaintiff to have sought leave.  Rather, any objection to jurisdiction would be addressed in the context of a subsequent set aside application.  A question arises, therefore, as to whether a court hearing a joinder application against a foreign defendant should consider its international jurisdiction, or whether, alternatively, any such consideration might be postponed unless and until a set aside application is brought.  The answer to this question is that the criteria under Order 15, rule 13 are sufficiently broad as to embrace a requirement to consider international jurisdiction to some extent.  It cannot sensibly be said that a party may be necessary to the effectual and complete adjudication upon a cause or matter unless the plaintiff has a claim which is "reasonably capable of proof" against the intended foreign defendant. 

50.         For the reasons which follow, this court is satisfied that this threshold is met in respect of the intended insurer-defendant.  The plaintiff asserts that the Irish Courts have jurisdiction to entertain a direct action against the intended insurer-defendant.  The expert evidence in respect of Spanish law indicates that it is open, in principle, to an injured party to pursue a claim for damages against the insurance company which indemnified the premises at which an accident occurred.  There is a corresponding obligation under Spanish law to provide an injured party with the details of the relevant insurer. 

51.         The documentary evidence relied upon in support of the claim that the intended insurer-defendant had written a policy of insurance in respect of the apartment consists of the following.  The first document is what appears to be a policy of insurance issued by a company described as Mapfre Familiar.  This company has since changed its name to Mapfre España.  The apartment is identified as the insured property.  The policy is stated to be effective for a twelve month period expiring on 4 November 2016.  The policy refers to the "Insurance Term" as "Annual, renewable" and there is also reference to a direct debit mandate which authorises the debiting of all sums originating as a result of the policy for an indefinite period of time.  The second document consists of a receipt for a payment of a premium in the sum of €215.99 made by Michal Jan Kulka on 2 November 2016.  The receipt is stated to be valid from 04-11-2016 to 04-11-2017. 

52.         The state of the evidence indicates prima facie that the intended insurer-defendant had written a policy of insurance in respect of the apartment and that the policy had been renewed for a further twelve month period commencing on 4 November 2016.  This policy seems to have been effective as of the date of the accident in July 2017.  On the assumption that Spanish law is the applicable law, it would appear that the plaintiff has a claim, by way of direct action, against the intended insurer-defendant which is "reasonably capable of proof".  It would seem to follow that there are grounds for joining the insurer to the proceedings.  It is not necessary, for the purpose of the joinder application, for this court to reach any conclusions on the issues raised in respect of the extent of the insurance policy, i.e. whether it extends to the use of the apartment for the purpose of holiday accommodation and whether it extends to claims brought outside the territory of Spain.  These are matters which the newly joined defendant may agitate, if it so wishes, in a set aside application.  It is sufficient for the purpose of the joinder application to note, by reference to the judgment of the High Court of England and Wales in Hutchinson v. Mapfre Espana [2020] EWHC 178 (QB), that the proviso under Article 76 of Law 50/1980 of the Spanish Insurance Contracts Act, which states that the direct action is immune from any exceptions that the insurer may have against the insured, may preclude the exemption clauses being relied upon against the plaintiff/injured party.

53.         It has been submitted on behalf of the impleaded insurer-defendant that it would be futile to join the intended insurer-defendant in circumstances where it is alleged that any claim against it would be manifestly statute barred. 

54.         The Supreme Court, in O'Connell v. Building and Allied Trade Unions [2012] IESC 36, [2012] 2 IR 371 (at paragraph 55), held that on the hearing of a procedural motion seeking to join a defendant, a court of first instance should not generally enter into an inquiry as to whether a claim may or may not be statute barred.  In general, on such an application, the only question which a court will ask itself is whether, on the facts before it, the claim against the intended defendant is clearly or manifestly statute barred.

55.         Had the present proceedings been governed by Irish law, there would appear to be strong grounds for saying that any personal injuries claim as against the intended insurer-defendant would be statute barred under the Statute of Limitations (Amendment) Act 1991.  This is because Order 15, rule 13 of the Rules of the Superior Courts provides that where a party has been added as a defendant, the proceeding as against such party shall be deemed to have begun only on the making of the order adding such party.  The domestic law limitation period would appear to have long since expired prior to the deemed date.

56.         It is submitted on behalf of the plaintiff, however, that the limitation periods relevant to a direct action against an insurance company are governed by Spanish law.  There is much force in this submission.  The right of an injured party to take a direct action against an insurance company is a right which arises under Spanish law: there is no equivalent right under Irish law.  It would seem to follow that the "applicable law" is Spanish law and that the limitation periods are those prescribed under Spanish law.  Neither side has adduced expert evidence in relation to the question of whether the calculation of the limitation periods under Spanish law is affected by the late joinder of an insurer-defendant in the case of an alleged mistake as to the identity of the proper insurance company.  In the absence of such evidence, it cannot be said, at this stage of the proceedings, that the claim against the intended insurer-defendant is "clearly" or "manifestly" statute barred.

57.         Counsel on behalf of the plaintiff confirmed that were an order to be made joining the intended-insured defendant, his side would have no objection to the impleaded insurer-defendant being released from the proceedings.  Put shortly, if a joinder order is to be made, then the plaintiff has no objection to a direct substitution of the intended insurer-defendant (Mapfre España) in lieu of the impleaded insurer-defendant (Mapfre Asistencia).  In circumstances where this court is satisfied that the threshold for joining the intended insurer-defendant has been met, and having regard to the plaintiff's indicated consent, a substitution order is appropriate.

58.         It should be reiterated, however, that it is open to Mapfre España to apply to set aside the order joining it to the proceedings and to contest jurisdiction.  In the event that such an application is made, it is not confined to arguments similar to those advanced by Mapfre Asistencia.

 

 

(2).    Motion to set aside service (Mapfre Asistencia)

59.         For the reasons explained under the previous heading, the outcome of the plaintiff's motion is that Mapfre Asistencia is to be released from the proceedings and Mapfre España joined as a defendant in lieu thereof.  In consequence of this outcome, it is not, strictly speaking, necessary to rule upon Mapfre Asistencia's motion to set aside service against it ("set aside motion").  For completeness, and lest the matter go further on appeal, it is proposed to address the set aside motion briefly.

60.         Had it been necessary to do so, this court would have resolved the set aside motion in favour of the impleaded insurer-defendant.  The threshold to be met by the plaintiff is to demonstrate that her claim is "reasonably capable of proof".  The plaintiff fails to meet this low bar.  There is no evidence before the court which indicates that Mapfre Asistencia was the insurer of the apartment.  Rather, as discussed under the previous heading, the documentary evidence all points to Mapfre España as being the insurer.  Indeed, the plaintiff's own expert on Spanish law has stated that "without any doubt" Mapfre España was the insurance company.

61.         The only factor pointing in the other direction is the plea, in the formal defence of the apartment owner, admitting that Mapfre Asistencia is the insurance company.  It is difficult to understand how this plea came to be made, and even more difficult to understand why an application to amend the plea has not yet been pursued, in circumstances where the apartment owner now appears to accept that the plea is in error.  Counsel indicated that it is intended to apply to amend.  At all events, as appears from the case law discussed earlier (at paragraphs 31 to 42), the court is not confined, on a jurisdictional application, to considering the formal pleadings but is also entitled, to a limited extent, to engage with the evidence before the court.  The fact that an opposing party has made a plea in a particular direction cannot outweigh the documentary evidence which all points in the other direction.

62.         As explained by the Supreme Court in IBRC v. Quinn (at paragraph 41), a jurisdictional objection may succeed where the court is satisfied, to the requisite standard, that the defendant is not a party to the contract said to found jurisdiction:

"There may, however, be some cases where an argument or evidence or materials are put forward by the relevant defendant which would, unless countered or explained, provide a knockout blow to the case.  For example the defendant might draw attention to (or give evidence in respect of) a contract on which the claim was founded and point out that the defendant was not a party to the contract but that, rather, a different but similarly named person or entity was a party to the contract.  If correct, such an assertion would, in an appropriate case, clearly mean that there would be no claim against the named defendant capable of being proven and the order granting leave would have to be set aside.  However, the plaintiff might be able to point to some reason or further evidence which might explain how the named defendant was arguably said to be liable under the relevant contract notwithstanding the points relied on. Doubtless other examples could be given."

 

63.         As appears, even allowing for the modest threshold to be met by a plaintiff on a set aside application, a defendant will succeed in delivering a "knockout blow" if a plaintiff cannot counter or explain evidence that indicates that the party to the contract, which is relied upon to found jurisdiction, was not the defendant but a different, similarly named entity.  The evidence indicates that this is precisely what has occurred in the present case.

64.         Finally, there was some suggestion that the insurance companies may have contributed to confusion on the part of the plaintiff and her advisers as to which company to join to the proceedings.  With respect, this suggestion is untenable.  It is apparent from her own affidavit evidence and exhibits (in particular, at LF7 and LF20) that the plaintiff had been provided, within days of the accident, with the number of the insurance policy and with a receipt which identified the insurance company as Mapfre España and gave its address.  Whereas the typeface may have been small, it is legible; and, crucially, no other individual company within the Mapfre Group is identified. 

65.         For reasons which pass understanding, the proceedings were ultimately issued against a life assurance company within the Mapfre Group.  The life assurance company, Mapfre Asistencia, brought to the solicitor's attention that it was the wrong defendant shortly after the proceedings had been served. 

 

 

(3).    Motion to set aside service (apartment owner)

66.         The apartment owner accepts, in principle, that the rental agreement in respect of the apartment comprises a "consumer contract" for the purpose of the Brussels I Regulation (recast).  The apartment owner advances his set aside application on a much narrower basis, namely that the rental agreement for the apartment was entered into between the injured party/plaintiff and a lease management company (ENA Financial SL).  The apartment owner argues that, at all material times, the lease management company was acting as an independent contractor (rather than as his agent).  On this argument, the apartment owner had no contractual relationship with the injured party/plaintiff.

67.         At this stage of the proceedings, there is only limited evidence before the court as to the nature and extent of the rental agreement entered into in relation to the apartment.  The terms and conditions from booking.com have been exhibited.  These appear to indicate that the consumer will have entered into two contractual arrangements: first, a contract with booking.com, and, secondly, a contract with the property owner (referred to as "trip provider").  It is said that booking.com act solely as an intermediary between the consumer and the trip provider, transmitting the details to the relevant trip provider and sending the consumer a confirmation email for and on behalf of the trip provider. 

68.         Clause 6 of the agreement provides as follows:

"By making a Trip Reservation with a Trip Provider, you accept and agree to the relevant cancellation and no-show policy of that Trip Provider, and to any additional (delivery) terms and conditions of the Trip Provider that may apply to your Trip (including the fine print of the Trip Provider made available on our Platform and the relevant house rules of the Trip Provider), including for services rendered and/or products offered by the Trip Provider.  The relevant (delivery/purchase/use/carrier) terms and conditions of a Trip Provider can be obtained with the relevant Trip Provider.  The general cancellation and no-show policy of each Trip Provider is made available on our Platform on the Trip Provider information pages, during the reservation procedure and in the confirmation email or ticket (if applicable) [...]"

 

69.         The injured party/plaintiff has exhibited an email dated 22 June 2017.  This requests the making of a payment transfer of €161 (said to represent 20% of the amount for renting the apartment).  The bank details provided are those of Ena Financial SL.

70.         Separately, the apartment owner has exhibited the agreement between him and the lease management company.  A certified translation has also been exhibited.  The agreement is entitled "Lease Management Commission" and is dated 27 February 2017.  The apartment is identified by its address.  The contracting party, Ena Financial SL, is described as a "lease management company".  It is recited that the apartment owner has an interest in commissioning the "brokerage and proper management" of the property.  The agreement is stated to be of indefinite duration, subject to the right of either party to terminate unilaterally by giving one month's written notice. 

71.         The rental costs are set out, with various permutations including the standard rate for a one-week letting with various discounts thereafter on longer rentals.  The agreement envisages that the rental payment will be made directly to the lease management company and that it will then remit the balance to the apartment owner having deducted 15% of the total rent agreed in the lease contract.  There is also an annual fee of €300 (plus 7 per cent tax). 

72.         The apartment owner undertakes that the apartment shall at all times meet the safety standards, sanitary and hygienic conditions for the letting thereof.  The apartment owner is also responsible for complying with tax liabilities resulting from the rental agreement and is to file appropriate returns within the time-limits provided by law.

73.         The apartment owner has not adduced any expert evidence in relation to the applicable law of the lease management agreement. 

74.         The gravamen of the apartment owner's case is that the lease management company is an independent contractor and not acting as his agent.  On this analysis, it is said that there is no privity of contract between the apartment owner and the injured party/plaintiff.  It is further said that it follows that the apartment owner is not "the other party" to a consumer contract for the purpose of Article 18 of the Brussels I Regulation (recast).

75.         This court is satisfied, for the reasons which follow, that the plaintiff has met the modest threshold of demonstrating that she has a claim against the apartment owner in relation to a consumer contract which is "reasonably capable of proof".  There are a number of aspects of the lease management agreement which indicate that it is likely to be characterised as an agency agreement.  If so, then this would have the legal consequence that any rental agreement in relation to the apartment would be a contract as between the particular holidaymaker and the apartment owner as principal.  First, the lease management company does not appear to have any proprietary interest in the apartment.  It has not, for example, taken a lease of the apartment in its own name for the purpose of entering into short-term lettings with holidaymakers.  In the absence of any proprietary interest, it is difficult to understand how the lease management company would have standing to enter into a rental agreement independently of the apartment owner.  It seems more likely than not that each short-term letting is as between the apartment owner (as principal) and the particular holidaymaker.  Second, the apartment owner is to be responsible for the tax liability arising from the renting out of the apartment.  Again, this suggests that the proprietary interest remains with the apartment owner.  Third, all the financial risk and benefit lies with the apartment owner.  The lease management company charges a fixed rate commission on each individual short-term letting.  The lease management company has no autonomy to set the rental prices: rather, same have been fixed by the agreement.

76.         Accordingly, the apartment owner is "the other party" to a consumer contract for the purpose of Article 18 of the Brussels I Regulation (recast).

 

 

Conclusion and proposed form of order

77.         This judgment has been prepared on the working assumption that—at least in cases where international jurisdiction is asserted by reference to the protective jurisdiction under the Brussels I Regulation (recast) in matters relating to liability insurance and consumer contracts—the threshold to be surmounted is that the plaintiff has a claim under the relevant gateway which is "reasonably capable of proof".  (Paragraphs 27 to 45).

78.         The first motion which has been decided is the plaintiff's motion to join Mapfre España as defendant.  This court is satisfied that the joinder of Mapfre España is necessary in order to enable the court of trial effectually and completely to adjudicate upon and settle all the questions involved in the personal injuries action.  In circumstances where the plaintiff has no objection to the direct substitution of Mapfre España in lieu of Mapfre Asistencia, a substitution order is appropriate.  It is open to Mapfre España to apply to set aside the order joining it to the proceedings and to contest jurisdiction.  It will be necessary for the plaintiff to apply to amend the personal injuries summons to address the joinder of Mapfre España.  (Paragraphs 46 to 58). 

79.         The outcome of the plaintiff's motion to join Mapfre España has rendered moot the motion brought by Mapfre Asistencia to set aside the service of the proceedings.  Had it been necessary to do so, however, this court would have resolved the set aside application in favour of Mapfre Asistencia.  There is no evidence before the court which indicates that Mapfre Asistencia was the insurer of the apartment.  (Paragraphs 59 to 65).

80.         The motion brought by the apartment owner to set aside the service of the proceedings upon him has been refused.  The terms of the lease management agreement are such that it is more likely than not that the rental agreement in relation to the apartment comprises a contract as between the plaintiff and the apartment owner as principal.  On this analysis, the apartment owner is "the other party" to a consumer contract for the purpose of Article 18 of the Brussels I Regulation (recast).  (Paragraphs 66 to 76).

81.         The plaintiff cannot rely on the joinder of either insurance company as an anchor to join the apartment owner qua insured as an additional defendant under Article 13(3) of the Brussels I Regulation (recast).  (Paragraphs 15 to 20).

82.         As to legal costs, the position appears to be as follows.  Mapfre Asistencia has been successful in its bid to be released from the proceedings, whereas the apartment owner has been unsuccessful in his parallel bid.  This court's provisional view is that (i) Mapfre Asistencia is entitled to recover the costs, both of its motion and the proceedings to date, as against the plaintiff; and (ii) the plaintiff is entitled to recover the costs of the parallel motion as against the apartment owner.  It is proposed that there be no costs order in relation to the motion to join Mapfre España to the proceedings. 

83.         The proceedings will be listed on 19 June 2025 at 10.30 am to hear submissions on costs and on the final form of the order.

 

 

 

Appearances

Paul McGarry SC and Karen Nolan for the plaintiff instructed by Moloney & Company Solicitors

Eugene Hill (with Maura McNally SC) for the first defendant instructed by Brady Kilroy Solicitors

Abdulla Morgan Kamber for the second defendant instructed by Rostra Solicitors

 

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