111 / 482
GAZETTE
MARCH 1989
Contracting States, both of whom
prima facie
have jurisdiction under
the Convention, the court in which
the proceedings were first instituted
is competent and the other court
must decline jurisdiction (Article
21).
AMENDMENTS TO THE
RULES OF THE SUPERIOR
COURTS
The Rules of the Superior Courts
have been amended to provide the
procedures required for the imple-
mentation of the 1988 Act. The
new rules are entitled "Rules of the
Superior Courts (no. 1) 1989" (S.I.
No. 14 of 1989) and they came into
operation on the 1st day of
February, 1989. They may be
purchased from the Government
Publications Sale Office, together
with a Guide to the changes made
as a result of the 1988 Act pre-
pared by Mr. Gerard Hogan B.L. and
Mr. James O'Reilly B.L. for the
assistance of the legal profession.
Procedural Changes Relating
to Jurisdiction
A summons initiating proceedings
coming within the scope of the
Convention may be issued and
served out of the jurisdiction
without an order of the Court. In
order to provide for the issue of
such a summons a new rule 1A has
been inserted after Order 4, Rule 1.
It provides that:-
"Where an endorsement of claim
on an originating summons con-
cerns a claim which by virtue of the
1988 Act, the Court has power to
hear and determine, the following
provisions shall apply:-
1) The originating summons shall
be endorsed before it is issued with
a statement that the Court has
power under the 1988 Act to hear
and determine the claim, and shall
specify the particular provision or
provisions of the 1968 Convention
under which the Court shall
assume jurisdiction, and
2) The originating summons shall
be indorsed before its issue with a
statement that no proceedings
between the parties concerning the
same cause of action is pending
between the parties in another
Contracting State."
In practice it may be necessary
to allow solicitors to qualify the
endorsement required by Rule
1A(2) above. In civil law juris-
dictions proceedings are only
"issued" when they are served.
This is in contrast to common law
jurisdictions where proceedings
may be issued first and then served
on the defendant up to one year
later. A defendant in a common law
jurisdiction such as Ireland or
England usually first becomes
aware of proceedings against him
when the summons is served on
him. Accordingly, a party who
intends to institute proceedings in
the Irish High Court against an
English defendant, may himself
already be a defendant in pro-
ceedings concerning the same
issue and between the same
parties which have been instituted
in the English Courts by the issue
of a writ, but of which he is not
aware as the writ has not yet been
served.
A new Rule 3A has been inserted
after Order 19, Rule 3 which
requires that the same endorse-
ment shall be put on the Statement
of Claim in such cases.
Order 11A has been created to
make provision for service out of
the jurisdiction without an order of
the Court of sumonses in pro-
ceedings in which the claim comes
within the scope of the Convention.
Order 11 now only covers cases
which do not come within the
scope of the Convention. A Court
order is still required for liberty to
serve a summons or notice thereof
out of the jurisdiction on a
defendant who is domiciled in a
non-contracting State or if the
claim belongs to a class which
does not come within the scope of
Convention e.g. bankruptcy or
arbitration matters. A minor
amendment has been made to
Order 11, Rule 1 by the insertion
immediately before the words:-
"Service out of the jurisdiction of
an originating summons" of the
following:- "Provided that an
originating summons is not a
summons to which Order 11A
applies".
Order 11A, Rule 2 allows service
of an originating summons or
notice of an originating summons
out of the jurisdiction without the
leave of the Court if it complies
with the conditions set out therein.
These are:-
"(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
(2) No proceedings between the
parties concerning the same
cause of action is pending
between the parties in another
Contracting State and
(3) Either
(a) the defendant is domiciled in
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 con-
cerning prorogation of jurisdiction
apply."
There is no change in the
common law rule whereby notice
of the summons rather than the
summons itself is served in cases
where the defendant is not a citizen
of Ireland. Order 11A, Rule 6
provides:- "Where the defendant is
not, or is not known or believed to
be a citizen of Ireland, notice of the
summons, and not the summons
itself, shall be served upon him."
Order 12, Rule 2 has been
deleted and a new Rule 2 substi-
tuted to make special provision
regarding the entry of an appear-
ance to an orginating summons in
proceedings served out of the
jurisdiction under Order 11A, Rule
2. These provisions also apply to an
appearance entered solely to
contest jurisdiction. A distinction is
made between a sumons which is
to be served in the European
territory of another Contracting
State and a summons which is to
be served in a non-European
territory of a Contracting State.
Where an originating summons is
served in the European territory of
another Contracting State the
defendant has five weeks from the
date of service of the summons
within which to enter an
appearance. A defendant who is
served in any non-European
territory of a Contracting State
must enter an appearance within
six weeks of the date of service of
the summons on him.
Procedure for Enforcement
Section 5 of the 1988 Act
provides:- "An application under
Article 31 for the recognition or
enforcement in the State of a
judgment shall be made to the
97