Expanding Protective Jurisdiction under Brussels I Recast: Liability Insurance and Consumer Contract Gateways Established in Farley v Mapfre

Introduction

Farley v Mapfre Asistencia & Ors. ([2025] IEHC 304) is a High Court of Ireland decision delivered by Mr. Justice Garrett Simons on 30 May 2025. The dispute arose after Ms Lauraine Farley, an Irish domiciled tourist, slipped and fell in a rented holiday apartment in Tenerife, allegedly due to a leaking air-conditioning unit. Rather than suing in Spain, she instituted personal injury proceedings in the Irish courts against (i) the insurer of the apartment and (ii) the apartment owner. Both defendants are foreign-domiciled. They challenged Irish jurisdiction under the Brussels I Regulation (recast) (“Brussels I”), and the plaintiff sought to join a different insurer.

The key issues were:

Whether Irish courts may exercise protective jurisdiction under Articles 13 (liability insurance) and 18 (consumer contract) of Brussels I to hear the claim;
The identity of the correct insurer under Spanish law and the limits of a direct action;
Whether the apartment owner was “the other party” to a consumer contract concluded via booking.com;
The procedural thresholds for joinder and for setting aside service of foreign-domiciled defendants.

Summary of the Judgment

The Court held that:

A joinder order should substitute Mapfre España (the correct insurer under Spanish law) for Mapfre Asistencia, as the plaintiff’s direct-action claim against the insurer was “reasonably capable of proof.”
Mapfre Asistencia’s set-aside application was moot following substitution; had the court ruled on it, it would have dismissed it, since there was no evidence Mapfre Asistencia was the insurer.
The apartment owner’s set-aside application failed. On the evidence, it was more likely than not that he was the principal in a consumer contract arranged through a lease-management company, making him “the other party” under Article 18.
Article 13(3) cannot be used by an injured party to anchor jurisdiction over the insured—only the insurer may join the insured in matters “relating to insurance.”
The threshold for both joinder and for opposing set-aside under Brussels I protective gateways is that the plaintiff’s claim is “reasonably capable of proof” on the evidence available, subject to the higher “balance of probabilities” standard only where necessary to resolve jurisdictional facts.

Analysis

Precedents Cited

FBTO Schadeverzekeringen NV v. Odenbreit (Case C-463/06): Held that an injured third party may sue directly in his domicile state against an insurer domiciled in another Member State, if domestic law permits.
BT v. Seguros Catalana Occidente B (C-708/20): Clarified Article 13(3) – joinder of the insured is confined to insurer-initiated injunctive actions and does not permit a plaintiff to add the insured.
Pammer (C-585/08 & C-144/09): Defined “directs activities to” for consumer contracts under Article 18.
Club La Costa (C-821/21): Confirmed “other party” under Article 18 refers only to the contractual counterparty, not affiliates or group companies.
Kolassa v. Barclays Bank (C-375/13): Held that national courts are not obliged to undertake comprehensive evidential hearings on jurisdiction but may consider both parties’ allegations.
Irish Bank Resolution Corporation Ltd v. Quinn ([2016] IESC 50): Established the “reasonably capable of being proven” threshold for jurisdictional challenges under domestic rules—applied by analogy under Brussels I protective provisions.
Ryanair v. Unister ([2013] IESC 14) and Ryanair v. Billigfluege.de ([2015] IESC 11): Observed that, where necessary, jurisdictional facts may be decided on the balance of probabilities.

Legal Reasoning

1. Protective Jurisdiction under Article 13 (Liability Insurance)
The court confirmed that Article 13(1) (insurer may be joined if direct action is authorised) and Article 11(1)(b) (courts of the injured party’s domicile have jurisdiction) apply. Spanish law (Insurance Contracts Act, Art 76) permits direct actions. The key factual dispute was which Mapfre entity underwrote the policy. Documentary evidence (insurance policy, premium receipt) pointed to Mapfre España, not the impleaded insurer. Article 13(3) cannot be used by a plaintiff to add the insured; it only allows the insurer to bring in the insured to prevent irreconcilable judgments. BT v. Catalana Occidente B resolved the plaintiff’s contrary argument.

2. Protective Jurisdiction under Article 18 (Consumer Contracts)
A consumer may sue in her domicile against the other party to a qualifying consumer contract. The apartment owner conceded a booking.com listing may direct activities to Ireland but contended that the booking was made with a separate lease management company. On the evidence, it was more likely than not that each booking was effected by the owner via his agent (the lease manager), making the principal—in this case the apartment owner—the contractual counterparty. Thus Article 18 applied.

3. Procedural Thresholds for Joinder and Set-Aside
The court adopted the “reasonably capable of proof” threshold from IBRC v. Quinn for testing jurisdictional challenges under Brussels I protective gateways. National courts have discretion to examine evidence without a full trial (Kolassa). Where necessary, disputed jurisdictional facts may be resolved on the balance of probabilities (Ryanair).

Impact

Farley clarifies and extends several important points in cross-border jurisdiction:

It confirms that the lower “reasonably capable of proof” threshold applies to protective jurisdiction challenges under Brussels I recast, avoiding mini-trials on preliminary objections.
It limits Article 13(3) to insurer-initiated joinder of insureds, preventing injured parties from circumventing general jurisdiction rules.
It reinforces that consumer protection under Article 18 requires a genuine contract with the principal and cannot be extended to affiliated intermediaries.
It demonstrates the courts’ willingness to examine foreign-law issues (e.g., Spanish insurance law, limitation periods) at a preliminary stage to ensure effective adjudication.
It facilitates efficient case management by allowing substitution of the correct insurer and prompt resolution of jurisdictional disputes.

These clarifications will guide future personal injury and consumer contract litigations involving cross-border elements, ensuring both consumer protection and legal certainty.

Complex Concepts Simplified

Brussels I Regulation (recast): EU rules governing which Member State courts can hear civil and commercial disputes and how judgments are recognized and enforced across borders.
Protective Jurisdiction: Special rules under Brussels I that give weaker parties (injured third parties, consumers) broader venue options than general jurisdiction rules.
Direct Action: A statutory right enabling an injured person to sue the insurer of a tortfeasor directly, without first obtaining judgment against the tortfeasor.
Article 13 vs. Article 18 Gateways: Article 13 applies to liability-insurance disputes; Article 18 applies to consumer contracts. Each provides venue in the domicile of the injured party or consumer.
“Reasonably Capable of Proof” Threshold: A low preliminary evidential standard requiring only that the claim could be proven, not that it is probable—it prevents unmeritorious jurisdictional challenges becoming mini-trials.
Applicable Law (Rome I & II): EU regulations determining whether contract claims (Rome I) or non-contractual tort claims (Rome II) are governed by Irish or foreign substantive law.
Set-Aside Application: A procedure under Irish rules (Order 12, r. 26) and Brussels I to challenge service on a foreign-domiciled defendant on jurisdiction grounds before a full trial.

Conclusion

Farley v Mapfre crystallizes key aspects of protective jurisdiction in cross-border tort and consumer contract claims under Brussels I recast. It confirms that:

The “reasonably capable of proof” test governs preliminary jurisdictional challenges under Articles 13 and 18;
Article 13(3) cannot be used by injured parties to join insured tortfeasors;
Consumer-contract jurisdiction requires a direct contractual link between consumer and principal, despite intermediaries;
Courts may examine jurisdictional facts and foreign-law issues at a preliminary stage, balancing expedition and substantive accuracy.

These principles will shape future litigation strategy for plaintiffs and defendants alike, giving clarity on venue and early-stage case management in EU cross-border disputes.