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Cite as: [2001] 1 ILRM 519, [2000] IESC 13, [2000] 4 IR 32

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Minister for Agriculture, Food and Forestry v. Alte Leipziger [2000] IESC 13; [2000] 4 IR 32; [2001] 1 ILRM 519 (14th April, 2000)

THE SUPREME COURT

KEANE C.J.

BARRON J.

MURRAY J.

McGUINNESS J.

HARDIMAN J.

67 of 98

BETWEEN:

THE MINISTER FOR AGRICULTURE, FOOD AND FORESTRY

Plaintiff/Respondent

and

ALTE LEIPZIGER VERSICHERUNG AKTIENGESELLESHAFT

t/a ALTE LEIPZIGER

Defendant/Appellant

JUDGMENT delivered on the 14th day of April 2000 by Keane C.J.

These proceedings were instituted by the plaintiff/respondent (hereafter "the Minister") against the defendant/appellant (hereafter "the insurers") claiming inter alia a declaration that he is entitled to an indemnity in respect of the loss of meat carcasses alleged to have been stored in a cold store belonging to United Meat Packers in Ballaghaderreen, Co. Roscommon which was destroyed by fire on the 7th January 1992. The basis of the claimed indemnity is a contract of insurance alleged to have been entered into between the [*2] insurers, acting through their wholly owned French subsidiary, Office de Couscription d'Assurance Transport SA (hereafter "OCAT") and the Minister's insurance broker, DB Agencies SA, Monaco.

On the 8th November, 1994, an appearance headed "Memorandum of Appearance to contest the jurisdiction of the Court" was entered for the insurers, which stated that

"such appearance is limited to an appearance for contesting the jurisdiction of the court to hear and determine the plaintiffs claim, pursuant to the Jurisdiction of Courts and Enforcement of Judgments Acts 1988 to 1993 and without prejudice to such appearance the defendant reserves the right in the alternative to defend these proceedings."

1. The insurers then brought a motion claiming an order pursuant to Order 12, Rule 26 of the Rules of the Superior Courts setting aside the service of the proceedings of the defendant on the ground that the insurance policy (if any) upon which the Minister relied was the subject of a clause conferring sole jurisdiction to hear disputes between the parties upon the Tribunal de Commerce, Paris.

[*3] This application was grounded on affidavits of Andre Louis Simon, who described himself as an expert in French marine and transport insurance practice, and of Camille Hamen, who was the Director General of OCAT until his retirement in 1995.

2. The document alleged by the Minister to constitute the contract of insurance was a cover note dated 28th October 1991. The insurers claimed that such cover as was provided under that document was subject to general conditions contained in three policies known as the "French policies". These included a provision that the insurers could only be sued before the Tribunal of Commerce of the place of underwriting of the policy, i.e. Paris. It was contended on behalf of the insurers that the jurisdiction of the Irish courts to determine any claim brought on foot of the alleged contract of insurance was excluded by this provision.

3. Replying affidavits were filed on behalf of the Minister by Anthony Van Hagen, a French lawyer, and Padraig Smith, an Irish insurance broker. The motion then came on for hearing in the High Court before Laffoy J.

[*4] In the High Court, it was submitted on behalf of the Minister inter alia

that:-

(a) the general conditions contained in the French policies, and in particular the condition giving exclusive jurisdiction to the Tribunal of Commerce at Paris, were not incorporated in the cover note;

(b) alternatively, if the conditions were so incorporated, the clause purporting to give exclusive jurisdiction to the French Tribunal was of no effect, having regard to Article 8 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial matters (hereafter "the Convention") given the force of law in this State under the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988.

4. Article 8 of the Convention provides that

" an insurer domiciled in a contracting State may be sued..."

...(2) In another Contracting State, in the courts for the place where the policy holder is domiciled..."

5. On behalf of the insurers, it was submitted that the general conditions in the French policies were incorporated in the cover note and that Article 8 of the [*5] Convention did not apply to the insurance allegedly affected, having regard to Article 12(5) of the Convention.

6. Article 12 of the Convention, so far as relevant provides that:-

"the provisions of this Section [including Article 8] may be departed from only by an agreement on jurisdiction ...

(5) which relates to a contract of insurance insofar as it covers one or more of the risks set out in Article 12(A)."

7. Article 12(A) sets out the risks referred to in Article 12(5) as follows:-

"(1) Any loss of or damage to:

(b) goods in transit other than passenger's baggage where the

transit consists of or includes carriage by ... ships or

aircraft ...

(4) Any risk or interest connected with any of those referred to in (1) to (3) above."

8. On behalf of the insurers, it was submitted that the French policies were policies of marine insurance within the meaning of Article 12(A)(1)(b) and that, to the extent that the policies extended to the storage of goods, that was a [*6] "risk or interest " connected with "loss of or damage to ... goods in transit", within the meaning of Article 12(A)(1)(b).

9. In reply, it was submitted on behalf of the Minister that the terms of the cover note itself and the surrounding circumstances made it clear that the insurance being effected was in respect of the storage of the goods in the plant at Ballaghaderreen. As already noted, the only affidavits before the High Court dealing with the factual background to the dispute were those to which I have already referred.

10. In a reserved judgment delivered on the 6th March 1998, the learned High Court judge concluded that the general conditions in the French policy were incorporated in the cover note. She also held, however, that neither Article 12(A)(1)(b) nor Article 12(A)(4) were applicable to the insurance effected under the cover note and that, accordingly, the Minister was entitled to sue the insurers under Article 8 of the Convention. From that judgment, the insurers have now appealed to this court.

11. After the service of the notice of appeal, a number of further affidavits were filed on behalf of the insurers and the Minister respectively. Initially, on behalf of the insurers, a further affidavit of Camille Hamen was filed, followed [*7] by an affidavit of Jacques Max Lassez, a French lawyer. In response, affidavits were sworn on behalf of the Minister by David Gresty, the Director of DB Agencies SA, who had taken part in the discussions with Mr. Hamen leading to the issuing of the cover note, Ronan O'Flaherty, an Assistant Principal Officer in the Minister's Department who had responsibility at the relevant time for the purchasing of beef into intervention and Hubert Groutel, a French professor of law. Further affidavits in reply were sworn by Mr. Hamen and Mr. Lassez.

12. It is unnecessary at this stage in the hearing of the appeal to consider in detail the contents of these affidavits. It is sufficient to say that there is a conflict of evidence between Mr. Hamen on the one hand and Mr. Gresty on the other hand as to inter alia the nature of the insurance that was intended to be effected by the cover note. They also disclose a conflict of evidence between Mr. Lassez on the one hand and Professor Groutel on the other hand as to whether, under the relevant provisions of French law, the nature of the insurance intended to be effected under the cover note was one that fell within the provisions of Article 12(A)(1)(b) or Article 12(4).

13. Written submissions had been filed on behalf of the parties in accordance with the directions of this court. In addition, however, immediately before the oral hearing of the appeal, a supplementary written submission on behalf of the [*8] insurers was lodged in which the conflicts of evidence disclosed by the affidavits filed subsequent to the lodging of the notice of appeal were set out in detail and it was submitted that the appropriate course of action for this court to take was to remit the matter to the High Court so that the conflicts of fact could be resolved, either by an oral hearing or by the cross-examination of the deponents upon their affidavits.

14. On behalf of the Minister, Ms. Finlay S.C submitted that, this not being an appeal from an "interlocutory judgment or order" within the meaning of Order 58, Rule 8 of the Rules of the Superior Courts, the evidence contained in the seven affidavits sworn and filed subsequent to the hearing in the High Court could be admitted on special grounds only and then only with the special leave of this Court obtained upon application therefor by a motion on notice setting forth the special grounds. (It should be noted in passing that at a stage when the case was in the list in this court for the purpose of a date being fixed for the hearing, no objection was taken by counsel on behalf of the Minister to the filing of additional affidavits and, indeed, as already noted, replying affidavits were in any event filed on his behalf. However, the court on the hearing of the appeal indicated that, if the Minister now wished to argue that this was not evidence which should be admitted without special leave pursuant to Order 58, Rule 8, the court would not treat the Minister as necessarily bound by any [*9] concession apparently made at a stage when the case was in the list for mention only.)

15. In reply, Mr. Shipsey, S.C. on behalf of the insurers submitted that this was an appeal from an interlocutory judgment or order within the meaning of Order 58, Rule 8 and that, accordingly, he was not obliged to seek the special leave of the court for the admission of the further affidavits sworn by Mr. Hamen and Mr. Lassez.

16. Order 58, Rule 8 of the Rules of the Superior Court provides as follows: -

"The Supreme Court shall have all the powers and duties as to amendment and otherwise of the High Court, together with full discretionary power to receive further evidence on questions of fact, such evidence to be either by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave upon any appeal from an interlocutory judgment or order or in any cases to matters which have occurred after the date of the decision from which the appeal is brought. Upon any appeal from a final judgment or order such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds [*10] only, and not without special leave of the Supreme Court (obtained upon application therefor by motion on notice setting forth such special grounds)... ."

17. It is accepted on behalf of the insurers that the evidence contained in the affidavits filed in the High Court does not relate to matters which occurred after the date of the High Court decision. Accordingly, unless the judgment and/or order of the High Court can be regarded as an interlocutory judgment and/or order as distinct from a final judgment or order, the special leave of the Court will be required for the admission of the affidavits. Before considering the question as to whether the judgment and order of the High Court under appeal in the present case was an interlocutory judgment or order or a final judgment and order, it is relevant to refer to what appears to be the rationale of the relevant provisions of Rule 8.

18. It is clear from the opening words of the Rule that this court has a "full discretionary power" to receive further evidence upon questions of fact. However, save in the case of an interlocutory judgment or order or matters which have occurred after the date of the decision appealed from, the discretion is one which, in its exercise, is subject to certain limitations which have been identified in the relevant authorities.

[*11] In Lynch v. Mackin (1970) IR 180, this court adopted the following passage from the judgment of Denning L.J. in Ladd .v. Marshall (1954) 1 WLR 1489:-

"To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled; first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."

19. It seems reasonable to suppose that the imposition of those limitations upon the admission of new evidence on the hearing of an appeal in this court reflects a principle of public policy that there should be finality in litigation and that a successful litigant is not to be deprived of his judgment because of the existence of evidence which could have been, but was not, led in the High Court.

[*12] Interlocutory orders were treated as being in a different category, since in such cases there is no question of depriving the successful litigant of his judgment. Such judgments or orders, of their nature, whether they take the form of injunctions, orders for discovery or interrogatories or particulars, etc. do not determine finally any of the issues in the particular proceedings. In considering whether the order appealed from in this case was interlocutory in its nature, it is obviously relevant to bear in mind that since, if it is upheld, the action will proceed to a full hearing in the High Court, it cannot be said in any sense to have finally determined the issues in the proceedings. At the same time, it is of such a character that, had the application on behalf of the insurers been successful, it would have been final, since the proceedings would have ended then and there.

20. The only Irish authority on the point to which we were referred was Toal .v. Deignan (No. 2) (1991) ILRM 140. That was a case of alleged medical negligence, in which an appeal was brought by the defendants against a High Court order refusing to dismiss proceedings against the defendants on the grounds that such a length of time had elapsed between the events on which the proceedings were based and the time of the application that it would be unjust for the defendants to be called upon to defend. themselves. In the course of his judgment, Finlay C.J. said: -

[*13] "This court ruled at the commencement of this appeal that the applications were interlocutory in nature and that it was appropriate that in the interests of justice further evidence should be adduced by both sides, both of whom were anxious to have the court consider further affidavits which they sought to file."

21. There does not appear to have been any written judgment giving the reasons for the ruling in question and, accordingly, the passage in the judgment of the learned Chief Justice is of limited assistance in the present case.

22. There are, however, a number of English authorities on the matter. They indicate that, in that jurisdiction, until new rules of court were enacted in recent times, a divergence of view had emerged in the Court of Appeal as to the appropriate criteria for determining whether an order should be treated as interlocutory or final for the purpose of the rules.

23. The sequence of cases begin with Shubrook .v. Tufnell (1882) 9 QBD 621. In that case, an appeal was brought from a judgment of the court below on a Case Stated. In the Court of Appeal, Jessel MR with whom Lindley, L.J. agreed, said that, if the Court of Appeal differed from the court below, final judgment would be entered for the defendant and there would be an end to the [*14] action. He accordingly concluded that it was to be treated as a final order and the appeal placed in the general list rather than set down in the interlocutory list. It is clear from the report that, had the case been decided by the Court of Appeal in favour of the plaintiff, it would have been referred back to the arbitrator who had stated the case. It is, accordingly, important to note that the decision proceeded upon the basis that, in cases where the order appealed from could, depending on the result of the appeal, finally determine the proceedings, even though the order actually made did not, it was not to be regarded as interlocutory in its nature. That approach was described in a more recent decision of White v. Brunton (1984) QB 570 as reflecting the "order approach" to the issue.

In Salaman v. Warner (1891) 1 QB 734, a different view was taken. That was an appeal from a decision of a divisional court that an action should be dismissed because the statement of claim did not disclose any cause of action. Shubrook .v. Tufnell was not cited to the Court and Lord Esher MR proposed a different test which was assented to by the other members of the Court, Fry and Lopes LJJ. He said: -

"The question must depend on what would be the result of the decision of the Divisional Court, assuming it to be given in favour [*15] of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory."

24. This was categorised in White v. Brunton as the "application approach".

In Bozson v. Altrincharn Urban District Council (1903) 1 KB 547, the order appealed from was one dismissing an action for breach of contract because of the determination in favour of the defendants of a preliminary issue as to liability. It was contended on behalf of the defendants, who relied on Salaman v. Warner that this was an interlocutory order and that, accordingly, the appeal was out of time. Lord Alverstone C.J. with whom the Earl of Halsbury L.C. agreed, said: -

"Does the judgment or order, as made , finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a [*16] final order; but if it does not, it is then, in my opinion, an interlocutory order."

25. The Court thus, in effect, disapproved of the "application approach" adopted in Salaman v. Warner.

In In Re Page, Hill .v. Fladgate the order appealed from was an order dismissing an action on the grounds that it was frivolous and vexatious. Again, the issue on the appeal was whether it was out of time because the order appealed from was not an interlocutory order. The Court unanimously concluded that it was not an interlocutory order, but there is no reference in the judgments to the decisions in Salaman v. Warner and Bozson v. Altrincham Urban District Council.

26. The topic was considered again by the English Court of Appeal in Salter Rex & Company .v. Ghosh (1971) 2 QB 597. In that case, the appeal was from an order in the County Court by a judge refusing to order a new trial of proceedings. The issue was as to whether the appeal was out of time, because the order was an interlocutory order. Lord Denning MR, with whom the two other members of the Court agreed, having referred to the conflicting views [*17] expressed in Salaman .v. Warner and Bozson .v. Altrincham Urban District Council said: -

"Lord Alverstone was right in logic but Lord Esher was right in experience. Lord Esher's test has always been applied in practice...

So I would apply Lord Esher's test to an order refusing a new trial. I look to the application for a new trial and not to the order made. If the application for a new trial were granted, it would clearly be interlocutory. So equally, when it is refused, it is interlocutory. It was so held in Anglo-Auto Finance (Commercial) Ltd. . v. Dick (December 4, 1967, CA; Bar Library Transcript No. 320A) and we should follow it today.

This question of final or interlocutory is so uncertain that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point. Most orders have now been the subject of decision. If a new case should arise, we must do the best we can with it. There is no other way."

Finally, in White v. Brunton the Court of Appeal considered the position where a question as to liability was heard as a preliminary issue and [*18] was decided against the plaintiff. If this were to be treated as an interlocutory order, the plaintiff would have required the leave of the court of first instance or the Court of Appeal to appeal. Sir John Donaldson MR concluded that the court was now clearly committed to the application approach as a general rule and that Bozson v. Altrincham Urban District Council could no longer be regarded as an authority for applying the order approach. However, he also held that where, as in that case, there was a "split trial", questions of liability being tried before and separately from issues as to damages, either party should have an unqualified right to appeal at the end of the trial of the first issue, since to hold otherwise would be to place an indirect fetter on the ability of courts to order a split trial: such orders should not deprive the parties of their unfettered right to an appeal which they would enjoy in the case of a unified trial of all the issues.

27. While there has, accordingly, been a divergence of approach in England, it will be seen that, in general, the difference of judicial opinion has been as to whether one looks at the order as made or the nature of the application when one is determining whether it is final or interlocutory in its nature. If the second approach is adopted, then one looks to whether the order, if upheld, will finally dispose of the case, whichever way it goes. If so, it is to be treated as final. If, however, the order, if given one way, will finally dispose of the matter [*19] in dispute, but, if given in the other, will allow the action to go on, then it is regarded as not final, but interlocutory.

28. If that represents the state of the law in England and is the law which should be adopted in this jurisdiction, then it is immaterial whether one adopts the "order" approach or the "application approach" in the present case. The order as made was not final in its nature, since, if it is upheld, the action will proceed to finality: hence, on that view, it is properly regarded as an interlocutory order. If the application approach is adopted, the result is the same, since this was not a case in which the decision, whichever way it was given, would, if upheld, finally dispose of the issues in dispute.

29. I, accordingly, reach the conclusion that, whichever of these divergent approaches is adopted, the result is the same: the order in this case was interlocutory in its nature. I have borne in mind that Shubrook v. Tufnell is an authority which appears as a matter of first impression irreconcilable with either the order as made approach or the application approach, since in that case the order as made was interlocutory in its nature. However, that decision is plainly not a satisfactory authority for the proposition contended for on behalf of the Minister in the present case, since the only issue that arose was whether the case should be put in the interlocutory list or the general list: the court [*20] concluded that it should be placed in the general list, since the order of the Court of Appeal might finally dispose of the case.

30. It is, accordingly, unnecessary in this case to come to any conclusion as to whether "the order" approach or the "application" approach is to be preferred, since, on either view, the order under appeal in this case was interlocutory in nature. As the authorities demonstrate, in the absence of any rule defining in detail what are to be "interlocutory orders", the courts usually find themselves having to decide each case in the context of the particular order under consideration. An order, such as the one in the present case, which does no more than reject a preliminary objection as to jurisdiction, cannot be said to be final in its nature and the policy considerations which have led to the courts to impose specific limitations on the admission of additional evidence in this court are wholly absent.

31. I, accordingly, conclude that the judgment and/or order of the High Court in this case was an interlocutory judgment and/or order and that the additional evidence on affidavit may be admitted without the special leave of the Court.

JUDGMENT delivered on the 14th day of April 2000 by BARRON J.

(Murray and McGuiness JJ. agreeing)

32. The plaintiff in these proceedings claims against the defendants on foot of a contract of insurance said to be evidenced by a cover note dated the 28th October, 1991. The defendant contests the jurisdiction of the courts to hear the matter and submits that by virtue of the cover of a [*2] particular risk by the contract of insurance, if any, the sole jurisdiction to hear the matter is vested in the courts of France.

33. The application to have these proceedings dismissed upon that ground was heard by Laffoy J. on the 6th March, 1998. The sole issue on this appeal is whether or not that order was a final order or an interlocutory order for the purposes of O. 58, r. 8 of the Rules of the Superior Courts, 1986.

0. 58, r. 8 of the Rules of the Superior Courts 1986 provides inter

alia:

"Such further evidence may be given without special leave upon any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon any appeal from a final judgment or order such further evidence (save as to matters subsequent as [*3] aforesaid) shall be admitted on special grounds only, and not without special leave of the Supreme Court (obtained upon application therefor by motion on notice setting forth such special grounds)."

34. Since the order of the High Court the parties in the present proceedings have filed additional affidavits. No leave has been sought for such filing. Accordingly, an application for special leave to file such affidavits should have been brought unless the order appealed from was an

interlocutory order.

35. The tests to determine whether an order is interlocutory or final as applied for the purpose of English Rules of Court dealing with leave to appeal have been referred to as either the "order approach" or "the application approach". In the former, you look to the order made on the application; while in the latter you look to the orders which might have been made on the application. In the former case, if the order disposes of [*4] the proceedings, it is a final order; whereas, in the latter case, if an order might have been made continuing the proceedings, then even though the order disposed of the proceedings, it is an interlocutory order.

36. It is not necessary to refer to all the English cases. They deal with the question whether leave to appeal is needed. In that jurisdiction, it is from an interlocutory order not from a final order. The main authority for the order approach is Bozson v. Altrincham Urban District Council 1903 1 KB 547. That was a case where the trial had been split. The issue as to liability was heard first, the issue as to damages, if it arose, was left over. It was sought to appeal the finding on liability. It was held to be a final order. Lord Alverstone C.J. in agreeing that the order appealed from was a final order said at p. 548:

"It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the [*5] parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion an interlocutory order. "

37. However, the order approach was specifically disapproved by the English Court of Appeal in White v. Brunton 1984 1 Q.B. 570 where Sir John Donaldson said at p. 573:

"The Court is now clearly committed to the application approach as a general rule and Bozson's case... can no longer be regarded as any authority for applying the order approach."

38. Nevertheless, I am not sure that the order of Laffoy J. would be regarded in England as an interlocutory order. Having disapproved the order approach, Sir John Donaldson then considered an order on a split trial and accepted that it was a final order in respect of which no leave to appeal would be required. His reasoning for so indicating is set out in the following passage on p. 573 as follows:

[*6] "That the division may not have run exactly along the line dividing liability from quantum is, I think, immaterial. The decisive feature is that the 'preliminary issue' was not, when analysed, an issue preliminary to a final hearing, but the first part of a final hearing."

39. Taking the words "an issue preliminary to a final hearing" as being of the essence of the test, it follows that the two types of application upon which the application approach is founded in that case fall into this category.

In Salaman v. Warner 1891 1 QB 734, the application was for a new trial. If it was refused, that was an end of the matter. Similarly, with an application in default of defence in both cases, the application depending upon the result was an issue preliminary to a final hearing.

40. Interlocutory orders are dealt with specifically by O. 50 of the 1986 Rules. Prima facie therefore the term interlocutory judgment or order [*7] contained in O. 58 would relate to such orders. Nevertheless the list cannot be exhaustive since there are many orders regarded as interlocutory which are not included in O. 50.

41. There are no reported cases dealing with preliminary issues as to jurisdiction. The only case cited to us from our own jurisdiction was Toal v. Duignan in which it was accepted by the Court that an application to dismiss the proceedings against a number of named defendants was an interlocutory one.

42. In my view, the order in the instant case was in its nature final. It was not a final order because it was not a decision on the merits. But it would never have been said to have been interlocutory in nature. In my view, an interlocutory application is one which is purely procedural in nature and an interlocutory order is an order made on foot of an interlocutory application, whereas a final order would normally dispose of [*8] the action of proceedings. The order in the instant case does not readily fall into either category.

43. It is an order which disposes finally, subject to appeal, of a substantive right collateral to the main issue in the proceedings. On the other hand a final order determines the rights of the parties in relation to the subject matter of the proceedings, while an interlocutory order determines the rights of the parties in the context of the proceedings as a whole. In the case of a motion to dismiss for failure to plead a cause of action or for want of prosecution, no rights are being finally determined. The order either determines that there is nothing to be litigated or that the right to have a matter litigated has been forfeited.

44. In the present instance, the right which has been affected by the order is the right of the defendant to object to the jurisdiction of the Court. It is not an order which deals with the merits of the cause of action, but [*9] neither is it an order made in the context of that cause of action. An interlocutory order is an order made on an application which in effect prepares the way for the final hearing which I believe to be the view of the English Court of Appeal in White v. Brunton . The present order has no such effect. It is much more of the nature of a final order than of an interlocutory one.

45. Ultimately, however the question to be answered seems to me to be, is the order of such a nature that further evidence may be adduced on appeal without leave? An interlocutory application deals with the substance of the proceedings but without deciding it. Equally, it does not infringe the principle that there should be finality in litigation. For this reason there can be no objection on either head to further evidence being given on the hearing of the appeal. It may well be a matter to be dealt with by an order for costs.

[*10] The present application deals with the issue as to whether a particular cause of action is justiciable in this jurisdiction. In my view the determination of such an issue should be final, subject to appeal. To treat it otherwise is in effect to allow the issue to be tried twice. That is quite clear in the instant case. Counsel for the appellant accepts that there would be new issues of fact arising out of the fresh evidence which would have to be determined in the High Court.

46. In all the circumstances of this case I consider that the order appealed from is for the purposes of O. 58, r. 8 a final order. I would disallow the appeal.

JUDGMENT of Hardiman J. delivered the 14th day of April 2000 (Murray and McGuinness JJ. agreeing)

47. The facts of this matter and the history of the proceedings are comprehensively set out in the judgment of the learned Chief Justice and it is unnecessary to repeat them here.

The Issue

48. The issue in this case is whether the Order against which the Defendant has brought its appeal is "an interlocutory judgment or order", or on the other hand is "a final judgment or order" within the meaning of Order 58, Rule 8 of the Rules of the Superior Courts.

49. Upon the determination of this issue depends whether either party is entitled to adduce further evidence by way of affidavit without special leave. Although this Court has not heard any argument beyond what has been directed to the issue identified above, it appears that that issue is a significant one in the circumstances of the case. [*2]

The Pleadings

50. For the purpose of this issue, it is necessary only to refer to certain aspects of the

pleadings.

51. The general Endorsement of Claim of the Plenary Summons issued on the 23rd

52. December 1993 grounds the Courts jurisdiction to hear the case in the following way:

"6. This Honourable Court has power under the jurisdiction of Courts and

Enforcement of Judgments (European Communities) Act 1988 to hear and

determine the within claim pursuant to Article 5(1), Article 8 and Article 9 of

the Brussels Convention on jurisdiction and the enforcement of judgments in

Civil and Commercial Matters.

No proceedings between the parties concerning the same cause of action is

pending between the parties in another contracting State ".

53. This part of the Endorsement of Claim demonstrates that the proceedings are governed by the 1968 Convention and the 1988 Act, as these instruments are defined in Order 11(a) Rule 1 and Rule 8 of the Rules of the Superior Courts. The whole of Rule 11(a) was incorporated into the Rules by virtue of Statutory Instrument 14/1989, shortly after the passage of the 1988 Act. The parts of the Endorsement of Claim quoted above are pleaded so as to comply with Order 11(a) Rule 2, permitting service of proceedings of the jurisdiction without leave of the Court if, but only if, the summons complies with the following conditions:

"(1) The claim made by the summons is one which by virtue of the 1988 Act the Court

has power to hear and determine; and [*3]

(2) No proceedings between the parties concerning the same cause of action is

pending between the parties in another contracting State and

(3) either:

the Defendant is domiciled at any contracting State, or

(b) the proceedings commenced by the originating summons are

proceedings to which the provisions of Article 16 of the 1968

Convention concerning exclusive jurisdiction apply, or

(c) the Defendant is a party to an agreement conferring jurisdiction to

which the provisions of Article 17 of the 1968 Convention concerning

prorogation of jurisdiction apply."

Contesting the Jurisdiction in Order 11A Proceedings

54. The same Statutory Instrument referred to above, S.I 14/1989 inserted a new Rule 2 in Order

12, dealing with "Appearance". Order 12 Rule 2(3) provides:

"An appearance to an originating summons in respect of proceedings issued for service

out of the jurisdiction under Order 11(a) Rule 2 (including an appearance entered

solely to contest jurisdiction by virtue of Article 18 of the 1968 Convention) shall be

entered ...".

and there follows certain time limits.

55. Section 3 of the 1988 Act gives the force of law in the State to certain conventions including

the 1968 Convention as amended. Article 18 of that Convention provides:

"Apart from jurisdiction derived from other provisions of this Convention, a Court of a

contracting State before whom a Defendant enters an appearance shall have [*4] jurisdiction. This rule shall not apply where appearance was entered solely to contest the jurisdiction of where another Court has exclusive jurisdiction by virtue of Article 60."

56. It appears that the insertion of the new Order 12 Rule 2 brought about a considerable change in the scheme of the rules in relation to contests as to jurisdiction. Prior to 1989 the rules appear to have envisaged dealing with such matters by the bringing of a motion under Order 12 Rule 26 either to set aside the service or to discharge an Order authorising service. Rule 26 envisages this motion being brought prior to entering an appearance. The practice, however, was to enter a "conditional

appearance", itself a procedure provided for in the Rules of the Superior Courts of England and

57. Wales, but not in our Rules. This course was followed in Kutchera v Buckingham International

Holdings Limited (1988) IR 61 . This was a case where the Plaintiff had obtained an Order giving him

liberty to serve a summons outside the jurisdiction and the Defendant entered a conditional appearance for the purpose of contesting jurisdiction only. In a note to the head note of the Report, page 63 the following is said:

"While Order 12 appears to require that a Defendant's Notice of Motion must be

served before he has entered an appearance, the practice is for Defendants to enter a

'conditional appearance' prior to the service of the Motion. This conditional

appearance is expressed to be 'without prejudice' and recites that the appearance was

entered 'for the purpose of contesting jurisdiction only'. Conditional appearances are

specifically provided for in the corresponding English rules of the Court but do not

appear in the Rules of the Superior Courts, and their status in this jurisdiction has not

been judicially determined "

[*5] The combined effect of Section 3 of the 1988 Act and the new Order 12 Rule 2 is

expressly to recognise that an appearance may be entered solely to contest the jurisdiction.

58. That is what was done in this case. A "Memorandum of Appearance to context the jurisdiction of the Court" was filed on the 8th November 1994 and its terms are set out in the judgment of the learned Chief Justice. The Plaintiffs Solicitor was notified of it on the same day by being sent a copy. The matter came before the High Court on foot of the Defendant's Notice of Motion of the 20th June 1995 seeking:

"...Pursuant to Order 12 Rule 26, setting aside the service of the proceedings herein on

the Defendant; on the grounds that the insurance policy (if any) upon which the Plaintiff

relies is the subject of a clause conferring sole jurisdiction to hear disputes between the

parties on the Tribunal de Commerce Paris and in the premises the Plaintiff has

contracted to commence any proceedings in that Court and that accordingly this

Honourable Court does not have jurisdiction to hear and determine the Plaintiff's claim

against the Defendant".

59. It was on that issue that the contest in the High Court proceeded and the affidavits filed

were directed solely to it. The Order of the High Court of the 6th March 1998 records that: "the

Court doth refuse the relief sought by the Defendant". [*6]

Interlocutory or Final

60. The foregoing provisions seem to me to distinguish the present appeal from any of the

authorities cited to us. Nonetheless I shall say something about these cases in deference to

the arguments addressed.

61. The question of whether particular Orders are interlocutory or final seems to have troubled the Courts in England and Wales for well over a hundred years. Judicial approaches have diverged to the point of inconsistency. In the 1980s, an effort in England to resolve the matter through Rules of Court which attempted a comprehensive definition was dramatically unsuccessful. I agree with the learned Chief Justice that the only Irish authority which has been cited , Toal v Dignan (No. 2) 1991 ILRM 140 , is of limited assistance only for the reasons which he gives.

62. In my view the English decisions are also of strictly limited assistance in the context of

determining the present case. In part, this is because none of them deal with the problem this case

presents, where a single issue arises for independent determination on foot of a specific statutory

procedure. None of the English cases cited, in my view, are remotely analogous and another United

63. Kingdom authority to which I shall refer is only imperfectly so. Over and above this, the English cases manifest perhaps too great an anxiety to evolve a general rule covering all sorts of dissimilar situations, and are too concerned with the result of taking one view or another in any specific case.

64. These views are strikingly confirmed by the remarkably indecisive judgment of Buckley L.J. in one of the cases cited, Hill v Fladgate (1910) 1 Ch 489 . An order had been made dismissing an

action on the grounds that it was frivolous and vexatious. The issue was whether the appeal was out of

time, as it would be only if the order were an interlocutory [*7] order. Lord Justice Buckley acquiesced in the decision of his two colleagues that the order was interlocutory, but he said:

"I yield my judgment to theirs without saying that I am completely satisfied with the

reasons for the view that this is an interlocutory order".

65. Commenting on the state of the authorities as they then were he said:

"The rules are so expressed and the decisions are so conflicting that I confess I am

unable to arrive at any conclusions satisfactory to my own mind as to whether this is an

interlocutory or a final order. It is plain that many orders which prima facie are final

are not final but are interlocutory for the purposes of appeal [and] there are

many cases in which orders have been held to be interlocutory because something

remains to be done to give effect to them, although in one sense they are final orders.

This, however, is an order in favour of the Defendants and it brings this action

altogether to an end. To my mind it would be reasonable to say that it is a final order.

But I do not think I am entitled to found myself on that, because there have been many

decisions in which orders apparently final have been treated as interlocutory."

66. Lord Justice Buckley ended his judgment with a plea which has not been heeded and an

observation which is still true in many cases:

"But I desire to say that in my opinion it is essential that the proper authority should lay

down plain rules as to what are interlocutory orders, but as matters now stand it is the

fact that it is impossible for the suitor in many cases to know whether an order

is interlocutory or final".

[*8] In his judgment in this case the Chief Justice has thoroughly set out the diverse and sometimes inconsistent English authorities and I agree with him that, generally speaking the difference of judicial approach has been as to whether one looks to the order as made, or to the application for the order, and to ask in either case if the order itself or the application which ever way it is decided, will finally dispose of the case.

67. While it is possible to state the core of the divergence in the English authorities with some clarity it seems to me that both the approaches which they have adopted are open to criticism. This, indeed, was recognised by Denning M.R. in Salter Rex and Company v Gosh (1971) 2 QB 597. Contrasting the "order" approach as propounded by Lord Alverstone in Bozson v Altrincham Urban District Council (1903) 1KB 547 with the "application" approach propounded by Lord Esher in Salaman v Warner (1891) 1 QB 734 where he said:

"Lord Alverstone was right in logic but Lord Esher was right in experience. Lord

Esher's test has always been applied in practice....... so I would apply Lord Esher's test to an order refusing a new trial".

68. In so expressing himself, Lord Denning was invoking the authority of Justice Oliver Wendell Holmes who famously said that the "life of the law is not logic but experience". But Justice Holmes did not, of course, attempt to put the two into complete antithesis as Lord Denning does. In a later passage in the same judgment, which almost echoes Buckley LJ's perplexity, he said:

"This question of final or interlocutory is so uncertain, that the only thing for

practitioners to do is to look up the practice books and see what has been decided on [*9] the point. Most orders have now been the subject of decision. If a new case should arise, we must do the best we can with it. There is no other way".

69. This is not an approach either commendable to logic or suggestive of any consistency of

experience.

70. I think the fundamental flaw in both these approaches lies in the requirement that the order, or

the application (depending on which one approach one takes) must finally dispose of the case as a

whole if it is to be final and not interlocutory. In my view, it is quite sufficient if the order in question

finally disposes of a particular issue between the parties, at least where that issue is discretely raised by some proper procedure.

Another English Authority

71. There is some support for the view just expressed in yet another English authority, though I do not expressly ground my opinion on it. This is Dale v British Coal Corporation (1992) 1 WLR 965 . There, the Plaintiff had been injured in an accident in a coal mine in 1972 but did not issue his proceedings until 1989 . Under a statutory procedure available in England, he sought a declaration that

the limitation period should not apply to his action. The Defendant issued a summons claiming the

setting aside of a Plaintiff's writ on the basis that it was statute barred. A District Registrar directed that these issues be referred to and tried by a High Court Judge. Blofled J. granted the Plaintiff leave to proceed, together with a direction that the limitation period should not apply. The Defendants appealed and a preliminary issue on the hearing of the appeal was as to whether the decision had been an interlocutory one, so that the Defendants ought to have sought leave to appeal, which they had not

done.

[*10] This authority deals (incidentally from our point of view) with the brave attempt made in the former Order 59 Rule 1(a) of the English Rules to define comprehensively a final, as opposed to an interlocutory, order. Unfortunately but understandably this attempt degenerated into circularity and the Court of Appeal found itself confronted with a rule different provisions of which treated Blofeld J's determination in quite inconsistent ways.

72. More relevantly for our purposes, the Court of Appeal eventually treated his

determination as final on the following basis:

"The effect of the determination on limitation by the Judge in the present case is to

determine finally any question of limitation in these proceedings. It would have so

determined any question of limitation, in fact, whichever way the Judge had decided

the issues before him, because if he had held that the Act of 1980 was not to be thus

applied under Section 33, then the claim would inevitably have failed." (emphasis

added)

73. This approach seems to me to be sound, quite independently of the surrounding discussion about the conflicting English rules. The Court held that the mode of determination was irrelevant if in fact the issue was finally determined for the purpose of the hearing in question. Its eventual conclusion was that:

"If the effect is that an issue was finally determined for the purposes of the action, then

its determination would, it would seem, count as a final judgment or order...."

74. It is clear that the procedures invoked in Dale's case have no precise counterpart in this

jurisdiction. Nevertheless the case seems to me to make a more useful analogy to the present facts

than any of the other cases cited. There, as here, the Court had before it only the [*11] discrete issue as to whether the originating document or service thereof should be set aside, or directions given to validate it. This situation is closer to the present circumstances than any of the other authorities cited.

75. It is interesting to note that Dale's case was somewhat critically received because the decision

was felt to involve ignoring one of the two inconsistent English rules. It seems to me that it had to do

this if the matter was to be determined at all. I am happy to endorse the comment made upon it by Dr

76. Adrian Zuckerman in the All England Reports Annual Review for 1993. Having quoted the

contradictory provisions of the English Order 59 he said:

"The Court of Appeal cut through this circularity by holding that an Order determining

an issue as to limitation was a final order since there was a determination of the issue

which was a distinct part of a final judgment or order by virtue of paragraph (4). The

decision does not sit easily beside the wording of the order since it seems to empty

paragraph 6(ff) of almost any meaning. But it does make sense to regard a decision on limitation as final because it is quite independent of the merits of the cause of action in

question and should be got out of the way conclusively and finally as early as possible."

A Jurisdiction Issue

77. It seems to me that a jurisdiction issue, too, is quite independent of the merits of the cause of

action and should be got out of the way conclusively and finally as early as possible. I believe that the

78. Court should focus on whether the jurisdiction issue, and not the general issues in the litigation, have

been finally determined for the purpose of this action by the judgment of Laffoy J. The virtues of this

approach seem to me to apply a fortiori to, and indeed to be specifically mandated by, the procedural

context of this appeal. The issue of jurisdiction arises for immediate determination by virtue of a

special procedure whereby no [*12] other issue is raised. This is the procedure of the limited appearance. The position is thus clearer, the issue more precisely knit, and more expressly isolated from any other issue which might arise, than in any of the authorities to which we have been referred. Those cases feature split trials of liability and of damages, a motion to dismiss an action as vexatious, a motion to dismiss on a point of law, and other special circumstances. None are to my mind at all usefully analogous to that arising here. Article 18 allows for the joining of issue on the limited question of jurisdiction and the order made after this has been done seems to me to be an order which is (subject only to appeal) final on that issue, and that was the only issue before the High Court.

79. I believe that this conclusion is strongly supported by a consideration, by way of example, of

the case already referred to Kutchura v Buckingham International Holdings Limited (1988) IR 61 . In that case, the issue of jurisdiction was raised by the somewhat informal procedure described earlier in this judgment. The High Court discharged the order authorising service out of the jurisdiction but was reversed after elaborate argument in this Court. If the order of Laffoy J. in this case is to be regarded as interlocutory then so too must the orders of the High Court and this Court on appeal in

Kutchura. But so to regard those orders would empty the term "interlocutory" of any meaning because those decisions concluded the question of jurisdiction in that case as finally as it could be concluded.

80. I believe that the approach I have proposed arises naturally from the Article 18 procedure and the amended rules which followed from it, and from the underlying logic of separating the fundamental question of jurisdiction from many other matters which will arise only if jurisdiction is accepted. I am of the view that it is unnecessary to apply either of the tests emerging from the English authorities because the procedure involving the invocation of Article 18 and the service of a motion under Article 12 Rule 26 is sui generis. [*13]

Conclusion

81. I believe that the order of Laffoy J. is a final order on the question of jurisdiction, subject only to appeal. The consequence of this is that further affidavits can be admitted only on special grounds with special leave of this Court to be obtained after an application of the kind envisaged by Order 58 Rule 8.