The Gazette 1987

GAZETTE APRIL 1987 Service out of the Jurisdiction and Choice of Law in Tort Cases

regard, it was observed in Grehan's case: "This arises in situations in which the defendant is not pre- sent within the jurisdiction but in which the case is so closely con- nected with Ireland or with Irish law that there is a justification for it being tried within this juris- diction. 0 . 1 1 enumerates the circumstances in which jurisdic- tion may be assumed. This form of procedure was first provided for in the Common Law Pro- cedure Act 1852 and the cases in which it could be exercised were specified in the Rules of Court. This was a modification of the common law position whereby courts exercised juris- diction only where the defen- dant was served w i th the process within the jurisdiction or submitted to the jurisdiction." 6 A number of general points emerge from the Irish cases. First, it is clear that the matter is one en- tirely at the discretion of the of the format proposed for the actual training programme a "triple decker sandwich programme" which en- visages the students spending three periods at the garda college interspersed wi th t wo lengthy periods of on the job training during a t wo year course, it is that it may be too complex. The Committee's proposals to fit the t wo periods of on the job training into the five layer programme have been care- fully worked out but it must be said that the logistics of operating such a sophisticated sandwich course may prove extremely difficult in p r ac t i ce. There are a l ways arguments about whether sand- wich courses should end with on the job training or with a return to the classroom. Without wishing to detract from the ideas put forward by the Committee it may prove necessary in practice to restrict the sandwich to a four layer course. •

T h i s a r t i c le w i l l f i r st c on s i d er t h e p r i nc i p l es u p on w h i c h t h e H i g h Co u r t w i l l g r a n t l e a ve t o s e r ve o u t s i de t h e j u r i s d i c t i on in t o rt cases under Or der 1 1 , r .1 (f) of t he Ru l es of t he Supe r i or Co u r t s 1 9 8 6 . T h e c u r r e nt l egal pos i t i on as r ega r ds Or der 1 1 , r. 1 (f) is c o n s i d e r ed in t h e u n a n i mo us j u d g m e n t of t he S u p r e me Co u r t g i v en by Wa l s h J . in Grehan -v- Medical In- corporated and Valley Pines Associates . 1 Second, it will be necessary to consider the position regarding choice of l aw in tort. The choice of l aw process may be explained as follows: once a court assumes jurisdiction in the case of a tort wh i ch was com- mitted in a foreign country or a tort wh i ch was commi t t ed wi t h in the jurisdiction but wh i ch contained some foreign element, it may before considering the rights and liabilities of the parties in the case, first go through a selection process known as "choice of l aw" in order to determine by what l aw those rights and liabilities are to be determined. Finally, the case for reform of the choice of l aw rules will be considered and options for statutory reform will be suggested.

of the Central Office. 3 No sum- mons for service out of the jurisdic- tion, or of which notice 4 is given out of the jurisdiction, may be issued without the leave of the Court. 6 Service out of the jurisdic- tion of an originating summons or notice of an originating summons may be allowed by the Court in the cases specified in Order 11. In this V I EWPO I NT (from p.107) the beat" training period com- mences, should lead to the prac- tical experience aspects of the training programme being taken more seriously than they have been in the past. Even these recommendations however are unlikely to bear full fruit until there is seen to be a change in the attitude of the senior officers of the force (and of the Department of Justice) to the whole question of garda training. The narrow approach of the past has not been successful and it is clear that much of any success there has been in the training pro- gramme has been due to the dedication of those officers who have been entrusted with the supervision of the programme coupled with what must have been a generally high quality of recruits to the force. If there is a criticism to be made

A l t hough the private inter- national law of tort has not heretofore featured much in the Irish courts, its importance will, it is submitted, increase for a number of reasons. First, it appears follow- ing Grehan's case that a court must consider the choice of law im- plications when deciding whether to permit service out of the jurisdic- tion. Second, when the jurisdic- tional provisions of the EEC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 2 , which are quite liberal in regard to matters relating to tort, come into force in the State, it is also possible that cases involving Irish choice of law rules will come before the Irish courts more often than they have in the past. Third, in view of the in creased mobility of persons and products, it is also more likely that our courts will be asked to hear ac- tions based on foreign torts. Order 11 - service out of the jurisdiction As soon as an originating summons is prepared and its indorsement duly drafted, it must be issued out by Gabriel J . McGa nn, B . A . (Mod ), LL .M. (Yale), Barrister-at-Law

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