The Gazette 1995

GAZETTE

EDIWH

ARCH1995

European Union and

Lugano Conventions on

Jurisdiction and the

Enforcement of Judgments

By Peter Byrne; Publisher:

Baikonur, 1994, 600pp. £74.

When I have lectured on the

Jurisdiction and Enforcement of

Judgments Conventions, I have often

commenced the lecture by pointing out

what a difficult area of law this is. Not

so much arising from the Irish

legislation and cases but because of

the difficulty that a lawyer trained in

the common law system has in

understanding and appreciating the

continental law approach to issues. I

now regret this admonition and

wonder if it is this sort of approach by

our profession that has led Mr. Byrne

in his covering letter to the Editorial

Board of this Gazette to make the

comment that "It is probably fair to

say that barristers are more

understanding of this kind of material

which is very technical and at time

esoteric". It is true that the

introduction of the Jurisdiction of

Courts and Enforcement of Judgments

(European Communities) Act 1988

was one of the few occasions that

prompted the Law Library to provide

lectures for their members. That being

said, if Mr. Byrne's perception of the

technical abilities of the respective

wings of the profession is correct, this

is something that must and should not

be allowed to continue.

I would hazard a guess that 85/95% of

business clients trade outside this

country whether by way of imports or

exports. No-one doubts that this trend

has been developing and will continue

to develop. Solicitors who have to date

avoided this topic cannot continue to

do so. The fact of the matter is that

those articles of the Convention that

have exercised Irish judicial thought

are relatively few and indeed are

reasonably straightforward. Certainly

if one has to deal with an international

aspect to a claim it is much simpler to

do so under the Conventions than

under the more nebulous and complex

area of general private international

law. While not perhaps forging new

frontiers, the Irish decisions are

models of straightforward common

law speak and have tended to

transpose the more obtuse European

Court of Justice decisions in to

amenable language.

For those practitioners who are

familiar with the Convention, there is

no doubt but that this book by Peter

Byrne will be a useful addition to their

library. For those who have not it is an

essential purchase. Mr. Byrne's earlier

text published in 1990 and entitled

"The EC Convention on Jurisdiction

and the Enforcement of Judgments"

has been superseded by the

implementation into Irish law of the

Rome Contracts Convention, the

Lugano Judgments Convention, the

ratification of The Hague Service

Conventions and, since publication of

this text, the ratification of the

Supplemental Rome Maintenance

Judgments Convention by the

Maintenance Act 1994.

The layout of the book is more

complex than usual and the reader

would be advised to read the special

section which deals with definitions

and the layout of the text. The index of

cases at the beginning is, for example,

laid out under four categories:-

- Preliminary Rulings

- English Decisions on the Convention

- Irish Decisions on the Convention

- Other Decisions

While it is interesting to see the

development of Irish jurisprudence it

is not quite clear what the purpose of

separating the indices in this way

is, or the criteria for the "Other

Decisions". To an extent I would

counsel against this approach (which

continues in the body of the text)

insofar as it is unreal to suggest that

the Irish, or indeed the English cases,,

can be addressed without close

reference to the important decisions

of the European Court. This is in

essence the reservation I have about

the manner in which the English and

Irish decisions relating to the

Convention are separately dealt with at

Appendix N in the book which merit

but cursory references in the

substantive chapters.

It is also unfortunate that nowhere

in the book, either in the indices or in

the detailed analysis of the English

and Irish cases at the end, is there a

precise reference to where in the

particular chapter the reference

to the Irish/English case is to be found.

For example, at page 441 the reader is

given a note of an interesting case of

Gascoine

-v-

Pyrah and Cronau

and is then referred to one of the

most important decisions of the Court

Kalfelis -v- Schroder

which is

simply described as being set out in

chapter 5. On turning to chapter 5 the

reader is then sent to continue her

search in chapter 6. That being said,

there is no question but that the

gathering together of the Irish and

English decisions in one text,

where they are given 116 pages, is

extremely valuable.

This book was published some time in

the Autumn 1994 and is right up to

date in relation to virtually all

judgments up to about July 1994.

Readers will note the interesting

developments in the case of

Shevill -v-

Press Alliance

[1992] 1 All ER 409

reported in Mr. Byrne's book at page

434. This case dealt with a libel

action taken in England against

France Soir which had a daily

circulation in France of 200,000 copies

but in the UK of only 230. The

Defendant publisher challenged the

English Court's jurisdiction. The

Court made a reference for a

preliminary ruling to the ECJ.

Since publication of this book the

Advocate General's Opinion was

delivered on the 14 July 1994

and he proposed that the Court

should rule as follows "In the

case of defamation by a newspaper

article circulated in more than one

Contracting State, Article 5(3)

must be interpreted as meaning that

the Plaintiff may sue either in the

Courts of the place of publication,

which have jurisdiction to award a

compensation for the whole of the

damage arising from the unlawful

act, or in the Courts of the places

where the newspaper is distributed,

which have jurisdiction solely in

respect of the damagearising,

according to the law applicable to

the tort or delict within their judicial

district".