The Gazette 1987

APRIL 1987

GAZETTE

O. 11, r.1 (f) — a new approach None of these five tests was adopted by Walsh J. He said: " . . . if it appears that any significant element in the com- mission of the tort occurs within this jurisdiction then the plaintiff will have at least fulfilled the threshold requirements set out in 0 . 11, r. 1 (f). But that is not sufficient to raise a presumption or an inference that the court should exercise discretion in favour of making an order for service out of the jurisdiction. Any approach which insists on any one constituent element of the commission of the tort oc- curring within the jurisdiction can only give rise to difficulties. (In) (a)ny case before the court which clearly calls for the hear- ing of the proceedings in Ireland and for the application of Irish law to the case an order for ser- vice outside the jurisdiction should not be denied merely because of the fact that some significant element or elements in its commission occurred outside the jurisdiction. For " I t is clear that the issue (whether or not a tort is committed within the jurisdiction within the meaning of 0. 11, r. 1 (f)) is not merely a mechan- ical one because that would inevitably lead to arbitrary results. The Court must have regard to the implications for the plaintiff or the defendant if the trial is to take place within the State. The task of the Court is to interpret and to apply the rule in a way designed to ensure that justice and practical com- mon sense prevail. The Court therefore should interpret the rule in the light of a broad policy and in the light of its choice of law implications. If more than one possible interpretation of the rule is available the one which serves to encourage the operation of sensible choice of law rules should be followed rather than one which would W e know your time is valuable and that's why we designed ExecTalk. We know it's the best thing to happen in dictation for 70 years. We know you will too. Dictaphone Company Ltd. 9 Marlboro Street, Cork and 86-88 Lower Leeson Street Dublin. Tel: (0001) 789144 4W Dictaphone A Pitney Bowes Company Business I S 1917 1987 example, in many cases it would be quite inappropriate that the invocation either of " t he place of injury" or " t he last event rule" should deny to a plaintiff the right of service out of the jurisdiction. It seems to me suf- ficient if any significant element has occurred within the juris- diction. To require that the ele- ment should be the most significant one could render a plaintiff's task more uncertain and the outcome more ar- bitrary." 16 In Walsh J.'s view there were elements which occurred in Ireland which were sufficiently significant to warrant the order made by the High Court; these elements were, (i) the fitting of the allegedly defective appliance, and (ii) the injury. It is not clear what the position would have been had only one of these elements occurred in Ireland. For example, the appliance might have been fitted in some third country or the intended plaintiff might have suffered cardiac failure whilst holidaying in some third country. Some assistance with this problem is to be found in an earlier passage of the judg- ment:

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