The Irish High Court has confirmed that parties seeking to raise jurisdictional points under the Brussels Regulation must do so clearly and at the earliest available opportunity or risk losing their entitlement to argue the points.
In Transportstyrelsen v Ryanair,1 the Swedish Transport Agency sought to recover from Ryanair certain security charges introduced in compliance with an EC Regulation. Proceedings were issued in 2009. Ryanair entered an appearance, filed affidavit evidence, consented to the matter being sent to plenary hearing, sought and obtained an order for further and better particulars and filed a counterclaim. It did all of this without challenging the jurisdiction of the Irish court. However, in September 2011, before the matter came for trial, Ryanair applied to have the case dismissed on grounds either (i) that the Transport Agency was seeking to recover a foreign revenue or public law debt or (ii) that the proceedings should be stayed on the basis of forum non conveniens.
The application failed. The Court held that the charges were not taxes or public law debts, because the funds raised were to be disbursed to Swedish airports to cover costs of security controls. Accordingly the rule that courts have no jurisdiction to enforce the penal, revenue or other public laws of a foreign state was not engaged.2
So far, so unremarkable. The real interest in the case lies in what the judge had to say in relation to the timing of jurisdiction arguments:
- First, the plaintiff sought to rely on the Brussels Regulation.3 The judge relied on authority that the plaintiff could only do so if it had relied on the Regulation at the outset of the matter in its initial pleadings4. For that reason, he decided the case not on the basis of the Regulation but on Irish conflicts of law principles.
- Secondly, Ryanair sought to argue that the steps it took in the proceedings (including the entry of an unconditional appearance) could not confer jurisdiction on the Irish court if it did not, as a matter of law, have such jurisdiction in the first place. That argument failed: Ryanair’s procedural conduct was consistent with a waiver of objection to jurisdiction; it had “engaged with and accepted the jurisdiction”; and was thereby precluded from objecting to jurisdiction.
- Thirdly, in rejecting Ryanair’s forum non conveniens argument, the judge was plainly swayed by the fact that the proceedings were at an advanced stage and the case was ready for trial.
These three points point to a single conclusion. Any party, whether plaintiff or defendant, should raise a jurisdiction argument at the earliest available opportunity. Failure to do so may close off potential avenues of argument, no matter what the merits or the formal position under the Regulation or the common law.
There remains a procedural difficulty for defendants. As Ryanair pointed out, the Irish court rules make no mention of entering an appearance solely to contest jurisdiction, and the relevant High Court form provides no opportunity for a defendant to challenge jurisdiction. Until these shortcomings are addressed in revised rules, defendants should rely on the guidance of the Irish Supreme Court in Campbell5 and make clear their objection to jurisdiction by a letter or a notice of motion accompanying the appearance.