The Gazette 1987

GAZETTE

APRIL 1987

Court.

Thus, it has been remark-

ed in 1 896 in

McCrea -v- Knight:

" . . . even where service out of

the jurisdiction may be allowed

it is not necessarily to be allow-

ed and it ought not to be allow-

ed unless there is some ground

of 'comparative convenience' to

guide the discretion of the Court

to the conclusion that a foreign

defendant ought not to be

brought to Ireland to stand his

trial. I cannot limit the meaning

of 'convenience'. It means

fitness, propriety and suitable-

ness —each and all three in the

most general sense."

Second, the High Court, when

making an order giving leave for

service out of the jurisdiction,

should, as a matter of propriety if

not necessity, specifically mention

in the order the particular class of

action within which the Court

decides the intended action to

fall.

Third, the list of cases

specified in Order 11 is exhaustive.

Service out of the jurisdiction can

only be permitted under the

authority either of a statute or of

a rule of court having the force of

a statute and those rules are to be

found only in Order 11.

Order 11, r.1 provides that:

"(s)ervice out of the jurisdiction

of an originating summons or

notice of an originating sum-

mons may be allowed by the

Court whenever . . . (f) the ac-

tion is founded on a tort com-

mitted within the jurisdiction."

In addition, it is possible to bring an

action founded on a tort under cer-

tain other rules of Order 11. Ser-

vice out of the jurisdiction may, for

example, be allowed under r.1 (g)

if the summons includes a

bona

fide

claim for an injunction as to

anything to be done within the

jurisdiction,

or for the prevention

or removal of any nuisance within

the jurisdiction. Under r. 1 (h) leave

may be allowed to serve any

person out of the jurisdiction who

is a necessary or proper party

to an action properly brought

against some other person duly

served within the jurisdiction.

This rule may also permit service

out of the jurisdiction in a tort

action.

Order 11, r.1 (f) refers to an

action "founded on a tort commit-

ted within the jurisdiction". This

requires the court to search for

the place where the tort was com-

mitted, the

"locus delicti".

No dif-

ficulty arises in the case of a tort

which is committed within the

jurisdiction or where all the events

including the actual bringing of the

action occur within the State.

Determining the

locus delicti

can be

problematical when the defen-

dant's act takes place in one coun-

try and the resulting harm is

inflicted on the plaintiff in another

country. It is a particular problem

of the tort of negligence in which

the negligent conduct and the

consequent injuries may occur in

different jurisdictions.

This problem arose in

Grehan's

case. The plaintiff, who was an

Irish resident, underwent heart sur-

gery in a Dublin hospital in June

1978. During the course of this

surgery a heart valve was im-

planted in the plaintiff which, he

claimed, was defective and as a

result of which, he alleged, he was

re-admitted to hospital with cardiac

failure. He instituted proceedings

for negligence against the first

named defendant, a Minnesota-

based corporation, who, while

denying negligence and putting the

plaintiff on proof of all the matters

averred in his statement of claim,

pleaded that the heart valve in

question had been manufactured

by the second named defendant.

The plaintiff was then given liber-

ty to join the second named defen-

dant, Valley Pines Associates, as a

defendant in the action. The

second named defendant moved to

have the order joining it set aside.

In support of this application it was

argued that it could not be sued in

the Irish courts. For the plaintiff it

was argued that while the second

named defendant did manufacture

the article in the United States it did

so knowing that it would be distri-

buted on a world-wide basis and

that the distribution of the article

in this country was done through

the medium of the first named

defendant. In the High Court Lynch

J. refused the application on the

ground that in order to do justice in

the action it should be tried as one

action. The second named defen-

dant appealed to the Supreme

Court. The appeal turned upon the

question of whether or not this was

a proper case in which the High

Court ought to have exercised its

discretion to order service of notice

of the proceedings outside the

jurisdiction on the second named

defendant and to join it as a defen-

dant in the action. It was admitted

that at least a component part of

the valve was manufactured by the

second named defendant and was

one of a number of such com-

ponents sold and delivered by the

second named defendant to the

first named defendant in the United

States. It was on this basis that the

Supreme Court dealt with the

second named defendant's appeal.

The outcome of the appeal

depended on whether the action

against the second named defen-

dant was "founded on a tort com-

mitted within the jurisdiction".

Before

Grehan's

case, any one of

a number of tests might have been

applied.

Tests for establishing t he

locus

delicti

in 0 . 11 cases

The problem has been considered

in all other major common law

jurisdictions. Prior to

Grehan's

case, there does not appear to

have been any reported decision of

an Irish court dealing with the

construction of 0 . 11, r.1 (f),

although the problem had been

considered in other contexts.

Five tests were examined by Walsh

J.:

(i)

the "place of acting" test:

the

locus delicti

is the place

where the wrongful act was

committed;

(ii) the "substance of the cause

of action" test: the proper

test to apply is when the tort

is complete to look back over

the series of events constitut-

ing it and to ask where does

the substance of the cause of

action arise;

(iii) the "last event" or "place of

harm" test: the

locus delicti

is in the jurisdiction in which

the last event occurred in the

train of events making up the

tort;

(iv) the restrictive test: this ap-

proach requires that all the

elements of the tort must

have been committed within

the jurisdiction;

(v) the elective test: this ap-

proach permits the plaintiff

to choose between the place

of the event giving rise to

the damage complained of or

the place where the damage

occurred.

110