Negative Declarations, Non‑Party Costs and the Narrow Scope of Article 22(5) Lugano Convention – Commentary on Vigeland v Zurich Insurance plc [2025] IESC 46

Negative Declarations, Non‑Party Costs and the Narrow Scope of Article 22(5) Lugano Convention – Commentary on Vigeland v Zurich Insurance plc [2025] IESC 46

1. Introduction

The Supreme Court of Ireland’s judgment in Vigeland v Zurich Insurance plc [2025] IESC 46 addresses a comparatively unexplored corner of the Lugano/Brussels regime: the meaning of “proceedings concerned with the enforcement of judgments” in Article 22(5) of the Lugano Convention 2007.

At the heart of the appeal lies a jurisdictional conflict between Norway and Ireland over who should decide whether an individual (Mr Arne Vigeland) can be made personally liable, in tort, for the costs of failed Norwegian proceedings brought by an Irish company he controlled. The question is whether:

  • Norway enjoys exclusive jurisdiction under Article 22(5) of the Lugano Convention (as the state whose courts rendered the costs order and where enforcement would occur); or
  • Ireland has jurisdiction under the general domicile rule in Article 2(1), because Zurich – the insurer subrogated to the Norwegian costs order – is domiciled in Ireland.

The Supreme Court (Hogan J, with O’Donnell C.J., Woulfe, Murray and Collins JJ. concurring) does not finally resolve the issue. Instead, it:

  • sets out a strongly reasoned, provisional view that Article 22(5) is of narrow scope and confined to the actual execution of judgments (involving “force, constraint or distraint”);
  • indicates that proceedings like those against Mr Vigeland – a tort claim for non‑party costs, mirrored by a negative declaration action – are not “proceedings concerned with enforcement” within Article 22(5); and
  • refers the question to the Court of Justice of the European Union (CJEU) for an authoritative ruling under Article 267 TFEU and Protocol 2 to the Lugano Convention.

Even pending the CJEU’s answer, the judgment is important. It crystallises a narrow reading of Article 22(5), clarifies the relationship between non‑party costs, tort claims, and enforcement proceedings, and affirms the compatibility of “negative declaration” actions with the Lugano/Brussels system, following Folien Fischer.

2. Factual and Procedural Background

2.1 The corporate structure and the failed investment

The facts concern a chain of companies and an unsuccessful investment:

  • SJ Investments Ltd. – a Belize‑registered company. It made unsuccessful investments in RenoNorden ASA, a Norwegian company.
  • Before suing, SJ Investments assigned its claim to its Irish subsidiary, SJI Equities Ltd., an Irish company.
  • Mr Arne Vigeland:
    • was one of two directors of SJ Investments;
    • at one stage owned 40% of its shares (the remainder held by a Belizean foundation in which he held most roles);
    • was the sole director of SJI Equities until January 2023.

SJI Equities sued RenoNorden and former directors in Norway (“the RenoNorden proceedings”) to recover the investment losses. That action failed and, on 9 December 2022, the Borgarting Court of Appeal in Norway ordered SJI Equities to pay approximately NOK 11.35 million (c. €1 million) in costs to the former directors.

SJI Equities was effectively a litigation shell: it had no capital and no bank account, and its litigation costs were funded by SJ Investments. The costs order remains unpaid. Mr Vigeland unsuccessfully attempted to place SJI Equities into voluntary liquidation in Ireland and resigned as its director in January 2023, leaving it with no directors.

2.2 Zurich’s role and the Norwegian proceedings against Vigeland

The former directors of RenoNorden were insured by the Norwegian branch of Zurich Insurance PLC, an Irish‑registered insurer. Under the insurance policy:

  • Zurich paid the directors’ legal costs; and
  • Zurich was subrogated to their rights under the costs order.

Concluding that SJI Equities was judgment‑proof, Zurich initiated proceedings in Norway against Mr Vigeland (“the Zurich proceedings”) to render him personally liable for the costs. Under Norwegian law, this was styled as a tort claim under the Norwegian Disputes Act, targeting the “real decision‑maker” behind a company who has managed litigation in a way that unfairly exposes the other side to unrecoverable costs. In Irish procedural terms, it is functionally akin to a non‑party costs order.

To secure its claim, Zurich obtained:

  • an ex parte protective order on 1 February 2023 from the Norwegian District Court freezing certain assets of Mr Vigeland;
  • that order was confirmed after an inter partes hearing and on appeal by the Borgarting Court of Appeal.

Both Norwegian courts held that Zurich’s underlying tort claim was sufficiently probable to justify the protective order and characterised Mr Vigeland as the “real decision‑maker” in relation to the RenoNorden litigation and the corporate arrangements.

On 24 March 2023 Zurich issued substantive proceedings in the Norwegian District Court seeking damages (NOK 12,044,522.30 plus interest and costs) from Mr Vigeland.

2.3 The Irish proceedings and the negative declaration

Before the Norwegian Court of Appeal’s final decision on the protective order, on 27 February 2023 Mr Vigeland commenced proceedings in Ireland (“the Irish proceedings”) against Zurich by plenary summons. He claimed:

  1. Damages for tortious interference – alleging Zurich had wrongfully instituted the Norwegian proceedings; and
  2. A negative declaration – that he was not personally liable for any loss or damage suffered by Zurich in respect of the RenoNorden proceedings (i.e. not liable for the costs).

The summons asserted that the Irish High Court had jurisdiction under Article 2(1) of the Lugano Convention, as Zurich is domiciled in Ireland within Article 60.

At the Supreme Court hearing, counsel for Mr Vigeland accepted that, for the jurisdictional issue, the focus was exclusively on the negative declaration.

2.4 Competing jurisdictional claims and stays

After the Irish proceedings were issued:

  • The Borgarting Court of Appeal, “in the knowledge of” the Irish proceedings, reaffirmed that Norwegian law governed Zurich’s claim, emphasising the strong Norwegian nexus (Norwegian litigation, Norwegian law, Norwegian lawyers, and a Norwegian costs order).
  • Zurich applied in the Irish High Court to set aside the plenary summons and to dismiss the Irish proceedings, arguing that the Norwegian courts had exclusive jurisdiction under Article 22(5) (enforcement of judgments).
  • On 6 June 2023, the Norwegian District Court stayed the Zurich proceedings under Article 27 of the Lugano Convention (lis pendens), pending the Irish courts’ determination of jurisdiction.

2.5 High Court and Court of Appeal decisions

2.5.1 High Court

In the High Court, Twomey J dismissed the Irish proceedings for want of jurisdiction: Vigeland v Zurich Insurance plc [2023] IEHC 630. He held that:

  • The core issue was whether the Irish proceedings were “concerned with the enforcement of judgments” within Article 22(5).
  • A costs order is a “judgment” for the purposes of that article.
  • Zurich’s proceedings in Norway, though framed as a tort under the Disputes Act, were substantively enforcement measures designed to realise the costs order against a third party.
  • Nothing in Article 22(5) limits “enforcement” to measures against original parties to the judgment; non‑party liability for costs falls within its scope.
  • Norway was best placed to deal with the legal issues, further supporting that its courts should exercise exclusive jurisdiction.

2.5.2 Court of Appeal

The Court of Appeal upheld this decision: Vigeland v Zurich Insurance plc [2025] IECA 24 (Butler J, Faherty and Power JJ concurring). The parties agreed that everything turned on Article 22(5).

Key holdings of Butler J:

  • The Zurich proceedings were properly classified as being concerned with the enforcement of the RenoNorden costs judgment, being functionally equivalent to an Irish non‑party costs application as recognised in Moorview Developments Ltd v First Active plc [2018] IESC 33; [2019] 1 IR 417.
  • If Zurich’s Norwegian claim was an enforcement proceeding, the Irish negative declaration – which sought the mirror image outcome (that he was not liable) – was also concerned with enforcement.
  • Allowing such negative declaratory proceedings in another jurisdiction would enable parties to bypass the exclusive jurisdiction conferred by Article 22(5): parties could pre‑empt enforcement courts by seising another court for a negative declaration.
  • Article 22(5) is not confined to the last step of execution; it covers proceedings with a sufficient proximity to enforcement, even if they precede actual execution measures.
  • Article 22(5) can apply to enforcement against third parties, not just the original judgment debtor.

Thus, both lower courts held that the Norwegian courts had exclusive jurisdiction, and that the Irish courts lacked jurisdiction to entertain the negative declaration.

3. Summary of the Supreme Court Judgment

The Supreme Court disagrees, in principle, with the approach of the High Court and Court of Appeal, but stops short of a final ruling. Its key points are:

  1. Strict construction of exclusive jurisdiction: Article 22(5) (like other exceptions to the Article 2(1) domicile rule) must be narrowly interpreted, as stressed in earlier case law and commentaries.
  2. Narrow scope of “proceedings concerned with the enforcement of judgments”: Drawing heavily on the Jenard and Pocar Reports and the CJEU’s decisions in Reichert (No. 2) and Reitbauer, the Court holds that Article 22(5) covers only proceedings that directly concern the actual execution of a judgment – involving “force, constraint or distraint” – not preliminary or indirect steps, still less the creation of a new tort liability.
  3. Third‑party tort liability is not enforcement: The Norwegian claim against Mr Vigeland is characterised (even in Norway) as a separate cause of action in tort, not as a procedural step in execution. The Irish negative declaration, mirroring that claim, is likewise not an enforcement proceeding.
  4. Rejection of Zurich’s multi‑forum exclusivity argument: If enforcement jurisdiction depended on where assets happen to be located at any time, multiple states could simultaneously have “exclusive” jurisdiction – an incoherent outcome contrary to the structure and purposes of Article 22.
  5. Compatibility with negative declaratory actions: The Court emphasises, following Folien Fischer, that negative declaration actions are generally compatible with the Lugano/Brussels system and may be brought in the defendant’s domicile even if they pre‑empt a substantive claim elsewhere.
  6. Preliminary reference to the CJEU: Recognising that this precise issue has not been authoritatively determined by the CJEU, and that it is a court of last resort under Article 267(3) TFEU, the Supreme Court makes a preliminary reference to the CJEU seeking clarification on whether such third‑party negative declaratory proceedings fall within Article 22(5).
  7. Stay of proceedings: The appeal is stayed pending the CJEU’s answer. All parties accepted that the Supreme Court had jurisdiction to refer under Protocol 2 to the Lugano Convention, notwithstanding that Norway (the other state concerned) is not an EU Member State.

In short, the Supreme Court’s provisional view is that:

“separate proceedings concerning the potential liability of a third party … for non‑party costs are not ‘proceedings concerned with the enforcement of a judgment’ for the purposes of Article 22(5)” (para 42),

but it defers a final ruling until after the CJEU’s guidance.

4. Detailed Legal Analysis

4.1 The legal framework: Lugano, Brussels and exclusive jurisdiction

The Lugano Convention 2007 largely mirrors the Brussels I regime (now the Brussels I Recast Regulation 1215/2012) for jurisdiction and enforcement among EU and certain EFTA states. Article 2(1) sets out the general rule:

persons domiciled in a State bound by the Convention shall, whatever their nationality, be sued in the courts of that State.

Article 22 (now Article 24 in Brussels Recast) lists exclusive jurisdiction heads, including:

  • rights in rem in immovable property (Art 22(1));
  • validity of the constitution, nullity or dissolution of companies and decisions of their organs (Art 22(2));
  • validity of entries in public registers (Art 22(3));
  • registration or validity of patents, trademarks and other IP rights requiring registration (Art 22(4)); and
  • Article 22(5): in proceedings “concerned with the enforcement of judgments, the courts of the State … in which the judgment has been or is to be enforced.”

These heads of exclusive jurisdiction are understood as involving matters closely tied to the exercise of public authority and state sovereignty. The Court places Article 22(5) firmly within that logic: enforcement is a sovereign function, often involving coercive acts on the territory of the enforcing state.

4.2 Precedents and authorities relied upon

4.2.1 Handbridge and Kalfelis: strict construction of exceptions

Hogan J invokes earlier authorities to underline a foundational principle of the Brussels/Lugano system: exceptions to the domicile rule must be strictly construed.

  • Handbridge Ltd v British Aerospace Communications Ltd [1993] 3 IR 342 – an Irish authority emphasising that derogations from Article 2 must be narrowly interpreted.
  • Kalfelis (Case C‑189/87, EU:C:1988:459) – the CJEU, dealing with joinder under Article 6(1) of the Brussels Convention, described jurisdiction based on the defendant’s domicile as the principle, and special heads of jurisdiction as “exceptions” that must not undermine the general rule.

These cases are not directly about enforcement, but they set the methodological backdrop: Article 22(5), as an exclusive jurisdiction provision, is an exception requiring a restrictive interpretation. This stance is repeated throughout the judgment and is crucial to the outcome.

4.2.2 Jenard and Pocar Reports: “force, constraint or distraint”

Hogan J gives weight to the classic commentaries that accompanied the Brussels Convention and the Lugano Convention:

  • Jenard Report on the 1968 Brussels Convention (OJ C 59/1): it explains that “proceedings concerned with the enforcement of judgments” are those involving:
    “recourse to force, constraint or distraint on movable or immovable property in order to ensure the effective implementation of judgments and authentic instruments.”
  • Pocar Report on the Lugano Convention (2009/C 319/01), para 91: it endorses Jenard’s interpretation and notes that exclusive jurisdiction is conferred where:
    “the sound administration of justice suggests that exclusive jurisdiction should be conferred on the courts that are best placed to consider the dispute and to apply local rules and customs.”

These reports emphasise:

  • Physical enforcement measures (seizure, auction, garnishment, etc.); and
  • The role of the courts of the place where those coercive measures take place, applying their own procedural and enforcement laws.

The Supreme Court’s interpretation of Article 22(5) is closely aligned with these commentaries.

4.2.3 Reichert (No. 2): action paulienne is not enforcement

In Reichert and Kockler v Dresdner Bank AG (No. 2) (Case C‑261/90, EU:C:1992:149), a German bank sued in France to set aside a gift of immovable property by its debtor to his son (an action paulienne) to preserve its ability to enforce future judgments.

The parents argued that Article 16(5) of the Brussels Convention (equivalent of Article 22(5)) conferred exclusive jurisdiction on the German courts as courts of enforcement. The CJEU rejected this argument, holding that:

  • the action paulienne served to preserve the creditor’s interests with a view to potential future enforcement;
  • but it was not intended to obtain decisions relating to “recourse to force, constraint or distraint” implementing judgments; and
  • therefore, it did not fall within the enforcement exception.

Hogan J interprets Reichert (No. 2) as confirming that preparatory or protective proceedings (even if instrumental to later enforcement) fall outside Article 22(5). Enforcement, for this provision, is about the execution stage, not about safeguarding or enhancing the creditor’s position.

4.2.4 Reitbauer: degree of proximity to enforcement acts

In Reitbauer (Case C‑722/17, EU:C:2019:577), a compulsory auction of immovable property was initiated to satisfy a judgment in favour of creditor A. Creditor B challenged a prior pledge in A’s favour, arguing that it was invalid. The question was whether B’s opposition fell within Article 24(5) of Brussels Recast (equivalent of Article 22(5) Lugano).

The CJEU:

  • acknowledged a link between B’s opposition and the enforcement process; but
  • concluded that Article 24(5) applies only where the proceedings themselves contest or affect the acts of the enforcement authorities; and
  • since B did not contest the enforcement acts themselves but rather a prior legal relationship (the pledge), the necessary “degree of proximity” to enforcement was not present.

Hogan J uses Reitbauer to reinforce two propositions:

  1. Article 22(5)/24(5) has a “relatively narrow scope” (Briggs), applying only to proceedings directly involving the enforcement mechanism; and
  2. a close connection with the enforcement process is required, typically via a challenge to or supervision of specific enforcement measures carried out by state authorities.

4.2.5 English case law: Masri and Kuwait Oil Tanker

Hogan J also draws on English appellate decisions to illustrate the underlying principle of territorial sovereignty in enforcement.

  • Masri v Consolidated Contractors International (UK) Ltd (No. 2) [2008] EWCA Civ 303; [2009] QB 450 – Lawrence Collins L.J. observed that Article 22(5) reflects “the principle of international law that one state should not take enforcement measures in the territory of another state.”
  • Kuwait Oil Tanker Co SAK v Qabazard [2004] 1 AC 300 – UBS held a debt in Switzerland; the English Court of Appeal had allowed a garnishee order against a UBS account, but the House of Lords reversed:
    • Lord Bingham noted that Switzerland was the state where enforcement should occur as the situs of the debt;
    • Lord Hoffmann stressed that a third‑party debt order is enforcement in rem against the debt, and because the debt was situated in Switzerland, Article 16(5) conferred exclusive jurisdiction on the Swiss courts;
    • Swiss experts would regard an English order as an infringement of Swiss sovereignty.

These cases underscore:

  • the territorial nature of enforcement jurisdiction; and
  • the sensitivity of one state ordering coercive measures against assets within another state.

This is the public international law rationale underpinning the narrow reading of Article 22(5).

4.2.6 Moorview and Irish non‑party costs orders

The Court of Appeal had relied on Moorview Developments Ltd v First Active plc [2018] IESC 33; [2019] 1 IR 417 to analogise the Norwegian tort claim to an Irish non‑party costs order: a mechanism whereby a person who is not formally a party to the litigation but who funds, controls or abuses the process can be made liable for costs.

Hogan J acknowledges that:

  • there is a functional similarity between the Norwegian Disputes Act remedy and an Irish non‑party costs order; but
  • what matters under Lugano is not national procedural classification but the autonomous meaning of “proceedings concerned with enforcement” in Article 22(5).

This foreshadows the Court’s insistence that transnational characterisation is not dictated by the labels of domestic law.

4.2.7 Folien Fischer and negative declarations

The Supreme Court refers to Folien Fischer AG v Ritrama SpA (Case C‑133/11, EU:C:2012:664) to justify the compatibility of negative declaratory actions with the Lugano/Brussels framework.

In Folien Fischer:

  • The CJEU held that a person who believes they are not liable in tort can bring a negative declaratory action in the courts of the defendant’s domicile under Article 2(1), even if that pre‑emptively determines a dispute that might otherwise have been brought elsewhere.
  • The Court rejected the idea that Brussels I prohibits such actions as an abuse or circumvention of jurisdictional rules.

Hogan J sees Folien Fischer as confirming that:

  • negative declaratory actions are a legitimate tool within the system;
  • they are not barred simply because they may interfere with the strategic preferences of a potential claimant; and
  • the absence of a forum conveniens doctrine in the Brussels/Lugano regime means courts must apply the jurisdictional rules rigidly, even where that leads to inconvenient results.

4.2.8 Consorzio Italian Management and the duty to refer

Finally, Hogan J cites Consorzio Italian Management and Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA (Case C‑561/19, EU:C:2021:799) concerning the obligation of courts of last resort to refer questions to the CJEU under Article 267(3) TFEU.

The CJEU there clarified when a final national court may decline to refer (for example, where the answer is acte clair). Hogan J emphasises:

  • the novelty and practical importance of the Article 22(5) issue;
  • the absence of directly controlling CJEU authority; and
  • the desirability, therefore, of an authoritative interpretation by the CJEU before the Supreme Court takes a final view.

This provides the foundation for the preliminary reference.

4.3 The Supreme Court’s legal reasoning

4.3.1 Characterisation of “proceedings concerned with enforcement”

The central analytical move in Hogan J’s reasoning is to define “proceedings concerned with the enforcement of judgments” in strict, execution‑focused terms.

Based on Jenard, Pocar, Reichert (No. 2), Reitbauer, and English authorities, the Court holds:

  • Article 22(5) is directed at “the actual enforcement and execution of a judgment” (para 32);
  • It is concerned with proceedings that involve or supervise:
    • seizure of assets;
    • compulsory sale of immovable property;
    • garnishment orders;
    • or other coercive acts executed by state authorities.
  • By contrast, proceedings that:
    • seek to create new liabilities (as in a tort claim);
    • or preserve or enhance a creditor’s position in advance of execution (as in an action paulienne);
    are not enforcement proceedings within Article 22(5).

This reading is bolstered by the structure of Article 22 as a whole, which groups enforcement with matters such as:

  • rights in rem over immovables;
  • company organs and corporate constitution;
  • public registers; and
  • IP registrations.

All of these involve significant elements of state power and regulatory control, suggesting that enforcement must likewise be tied to the exercise of public authority in the enforcing state.

4.3.2 State sovereignty and the territoriality of enforcement

The Court underscores the public international law principle that:

“one state should not take enforcement measures in the territory of another state.”

From this, it deduces that:

  • Article 22(5) exists to protect the sovereignty of the enforcing state, whose courts and enforcement officers act coercively on its territory;
  • it ensures that only the courts of the state where physical enforcement occurs can authorise, supervise, or restrain those acts.

This reinforces why:

  • Article 22(5) must be narrowly construed; and
  • it should be confined to proceedings where the court’s decision directly affects enforcement measures to be carried out within its territory.

4.3.3 Why the Irish negative declaration is not enforcement

Applying this framework, Hogan J concludes that the Irish proceedings (seeking a negative declaration) are not “proceedings concerned with the enforcement” of the Norwegian costs judgment:

  • Zurich’s proceedings in Norway against Mr Vigeland are:
    • a separate tort action under Norwegian law; and
    • not part of the enforcement process of the original costs order under Norwegian procedural law.
  • Mr Vigeland was not a party to the original RenoNorden litigation; nor was Zurich. Both are new actors in a new cause of action.
  • The Irish negative declaration mirrors this separate tort claim; it determines civil liability but does not:
    • order any sale of property;
    • instruct enforcement officers;
    • or authorise coercive acts on any territory.

Hogan J contrasts this with a “paradigmatic” enforcement case:

If, for example, the Norwegian courts had appointed a receiver or enforcement officer to sell immovable property in Oslo belonging to SJI Equities to satisfy the costs order, and proceedings were brought challenging some aspect of that sale, such proceedings would be concerned with enforcement and fall under Article 22(5).

But that is not the present case. Instead, Zurich is asking a Norwegian court to impose a new tort liability on a third party. The Irish negative declaration simply seeks to establish that this tort liability does not exist.

4.3.4 Critique of the High Court and Court of Appeal’s approach

Hogan J respectfully disagrees with the reasoning of Twomey J and Butler J:

  • They focused on the economic and functional link between the costs order and the Norwegian tort claim (both concern the same quantum of costs), and saw the tort claim – and the Irish negative declaration – as “directly bound up” with enforcement.
  • Hogan J instead insists on a legal and procedural distinction: the fact that a proceeding makes possible or facilitates eventual enforcement does not make it an enforcement proceeding within Article 22(5), as Reichert (No. 2) and Reitbauer make clear.
  • He rejects the argument that any proceeding which, if successful, would “necessarily prevent enforcement” must be classified as an enforcement proceeding. Otherwise, many declaratory or tort actions could be shoe‑horned into Article 22(5), contrary to its narrow scope.

On the Court of Appeal’s concern about “bypassing” exclusive jurisdiction by issuing negative declaration proceedings elsewhere, Hogan J implicitly responds by pointing to:

  • the CJEU’s acceptance of negative declarations in Folien Fischer; and
  • the lack of any flexible “forum non conveniens” control within the Brussels/Lugano framework.

If the Convention’s text gives jurisdiction to the courts of the defendant’s domicile in a negative declaration, that is a feature of the system, not an abuse.

4.3.5 Acknowledging the oddities: Norwegian law and the absence of forum conveniens

The Supreme Court candidly acknowledges that:

  • It might seem “odd” that an Irish court would determine a dispute about liability under Norwegian tort law for costs generated in Norwegian proceedings;
  • But that is a natural consequence of:
    • the abolition of forum conveniens balancing within the Brussels/Lugano regime; and
    • the CJEU’s acceptance that negative declaratory actions can be brought in the defendant’s domicile (Folien Fischer).

In other words, once it is concluded that Article 22(5) does not apply, the default rule – sue the defendant where they are domiciled – prevails, even if that leads to a forum that is, from a common law perspective, procedurally or substantively awkward.

4.3.6 The need for CJEU clarification

Although Hogan J provides a strong and detailed interpretation of Article 22(5), he stops short of making a final determination, emphasising:

  • The absence of directly on‑point CJEU authority dealing with:
    • a negative declaratory action about third‑party liability; and
    • a foreign costs order.
  • The requirement under Article 267(3) TFEU, as explained in Consorzio Italian Management, that a court of last resort must refer where the correct interpretation of EU (or Lugano‑equivalent) law is not acte clair.
  • The “novelty and practical importance” of the issue across Europe, given:
    • the prevalence of non‑party costs orders and comparable torts; and
    • the increased use of complex corporate and funding structures in litigation.

Accordingly, the Court refers the following question to the CJEU (paraphrased):

Are proceedings by a third party for a negative declaration in the courts of the claimant’s domicile, seeking a ruling that he is not liable in tort (for a sum equivalent to a foreign costs order), “proceedings concerned with the enforcement” of that foreign judgment within Article 22(5) of the Lugano Convention, so that the courts of the judgment‑rendering state have exclusive jurisdiction?

The proceedings in Ireland are stayed pending the CJEU’s answer.

5. Complex Concepts Explained

This judgment assumes familiarity with several technical concepts. The following brief explanations may help:

5.1 Lugano Convention and Brussels I Recast

The Lugano Convention (2007) is a treaty between the EU and certain EFTA states (e.g. Norway, Switzerland, Iceland) which essentially replicates the Brussels I regime on jurisdiction and enforcement for civil and commercial matters. Many provisions – including Article 22(5) – are materially identical to their Brussels counterparts.

In interpreting Lugano, EU member courts routinely rely on CJEU case law on Brussels I and Brussels I Recast, and Protocol 2 to Lugano encourages consistent interpretation.

5.2 Exclusive jurisdiction vs general jurisdiction

  • General jurisdiction (Article 2(1)): A person is sued where they are domiciled. This is the basic rule.
  • Exclusive jurisdiction (Article 22): For certain categories of disputes, only the courts of a particular state may hear the case (e.g. location of immovable property; company’s seat; place of IP registration; state of enforcement). Parties cannot override this by agreement (save in narrow circumstances), and other courts must decline jurisdiction even if the general rule would otherwise apply.

Exclusive jurisdiction provisions are, therefore, powerful but must be narrowly interpreted.

5.3 “Proceedings concerned with the enforcement of judgments”

Within this judgment, “proceedings concerned with enforcement” means:

  • cases directly involving the enforcement mechanism itself: seizures, auctions, garnishee orders, writs of control, etc.;
  • proceedings supervising, challenging or regulating the acts of enforcement authorities (bailiffs, sheriffs, court‑appointed receivers) in carrying out those measures.

It does not, according to Hogan J’s reading, include:

  • protective steps such as actions to set aside fraudulent transfers (Reichert (No. 2));
  • challenges to prior legal relationships (pledges) not directly contesting enforcement acts (Reitbauer);
  • independent tort claims that may ultimately support enforcement of a different judgment.

5.4 Non‑party costs orders and equivalent torts

A non‑party costs order allows a court, typically at the conclusion of proceedings, to order that someone who was not a formal party – but who funded or controlled the litigation, or abused the process – should pay some or all of the costs.

In Norwegian law, Zurich used a tort claim under the Disputes Act against the “real decision‑maker” to achieve a similar economic result: making Mr Vigeland personally liable for the costs that the shell company SJI Equities could not pay.

Although functionally similar, these are still distinct from enforcement measures. They create a liability; enforcement is about realising that liability against assets.

5.5 Negative declaratory actions

A negative declaration (or declaratory relief) is a judgment that confirms that a person is not liable, or that a particular liability does not exist. For example:

  • A manufacturer might sue for a declaration that its product does not infringe a patent.
  • A potential defendant might seek a declaration that they are not liable in tort.

In the Brussels/Lugano context, the CJEU in Folien Fischer confirmed that a person seeking such a declaration can usually sue in the courts of the defendant’s domicile, even if this pre‑empts a claim the other side might have brought elsewhere.

5.6 Preliminary references and Article 267 TFEU

Under Article 267 TFEU, national courts may (or, if they are courts of last resort, must) refer questions on the interpretation of EU law to the CJEU. Protocol 2 to the Lugano Convention extends this mechanism to interpretation of Lugano provisions, allowing EU Member State courts to seek CJEU guidance so as to maintain uniformity.

Once the CJEU answers, the referring court must decide the case in line with that interpretation.

6. Likely Impact and Future Implications

6.1 On the interpretation of Article 22(5) / Article 24(5)

If the CJEU substantially endorses Hogan J’s reasoning, Vigeland will cement a narrow, execution‑focused interpretation of Article 22(5) (and by analogy Article 24(5) Brussels Recast). The key consequences would be:

  • Limited reach of exclusive enforcement jurisdiction: Only proceedings directly tied to the acts of enforcement authorities (seizure, sale, garnishment, etc.) will fall under exclusive jurisdiction of the enforcement state.
  • Exclusion of ancillary and preparatory measures: Actions that:
    • create or shift liability (e.g. non‑party costs, tort claims against controllers);
    • set aside fraudulent transfers; or
    • challenge prior security interests,
    will normally be governed by the general rules of jurisdiction (domicile or special heads), not Article 22(5).
  • Greater weight on the domicile rule: Many disputes about who should ultimately bear the burden of a foreign judgment (e.g. contributors, guarantors, controllers) may be litigated in the courts of the relevant defendant’s domicile rather than in the enforcement state.

Conversely, if the CJEU takes a broader view, holding that proceedings “directly bound up with enforcement” – even if not themselves execution – fall under Article 22(5), then:

  • non‑party costs claims and their mirror‑image negative declarations could indeed be reserved to the courts of the state where the original judgment was rendered and is to be enforced; and
  • this would mark a significant expansion of the enforcement exception beyond the tightly drawn boundaries suggested in Reichert (No. 2) and Reitbauer.

6.2 For non‑party costs and insurer subrogation claims

For insurers, funders and those behind thinly capitalised litigating entities, the stakes are high:

  • If Article 22(5) does not apply, then:
    • persons like Mr Vigeland can race to their home courts (defendant’s domicile) to seek a negative declaration about their exposure to third‑party costs claims abroad;
    • insurers subrogated to costs orders may need to litigate third‑party liability in multiple fora:
      • the enforcement forum to enforce against available assets; and
      • the controller’s domicile to establish personal liability in tort.
  • If Article 22(5) is interpreted broadly to include such tort‑like claims:
    • the state whose courts issued the costs order would enjoy exclusive jurisdiction over non‑party costs liability; and
    • potential controllers and funders could not sidestep that forum by seising their home court for a negative declaration.

Either way, Vigeland highlights that:

  • corporate structuring (use of undercapitalised vehicles) and litigation funding strategies carry cross‑border risks; and
  • courts are increasingly willing (at least in principle) to consider piercing or bypassing shells in costs contexts – though the precise forum for such actions remains contested.

6.3 Negative declarations and “torpedo” tactics

Vigeland also touches on a phenomenon sometimes called “torpedo actions”: using negative declaratory proceedings in one forum to “torpedo” or pre‑empt substantive claims in another.

  • The Court of Appeal expressed concern that allowing the Irish negative declaration to proceed would let parties “bypass” Article 22(5), undermining its exclusivity.
  • Hogan J’s reasoning, aligned with Folien Fischer, suggests that:
    • pre‑emptive use of negative declarations is not inherently abusive under Lugano/Brussels; and
    • lis pendens rules (Article 27 Lugano / Article 29 Brussels Recast) provide a structured way of managing parallel proceedings.

Depending on the CJEU’s response:

  • A narrow reading of Article 22(5) could encourage more use of negative declaratory actions in complex multi‑jurisdictional cost and liability scenarios, particularly actions targeting controllers and funders at their domicile.
  • A broad reading might signal judicial impatience with litigation strategies perceived as undermining the enforcement state’s control over all aspects of judgment realisation.

6.4 Cross‑border enforcement policy and sovereignty

More broadly, Vigeland illuminates important policy tensions:

  • Sovereignty and territoriality: The Supreme Court’s approach is faithful to the classical view that coercive enforcement is strictly territorial. Article 22(5) safeguards that by confining exclusive jurisdiction to the courts of the enforcement state for genuinely enforcement‑related proceedings.
  • Flexibility in ancillary disputes: By resisting an expansive reading of Article 22(5), the Court preserves:
    • the general rule of domicile jurisdiction; and
    • flexibility for ancillary disputes (e.g. between insurers and controllers) to be litigated in other appropriate fora.
  • Legal certainty: A too‑broad enforcement exception would create uncertainty:
    • foreseeability of jurisdiction would suffer; and
    • parties could find themselves dragged into the enforcement state for merely tangentially related disputes.

The CJEU’s eventual ruling will either:

  • confirm this equilibrium – a narrow enforcement exception plus robust domicile jurisdiction; or
  • shift the balance in favour of enforcement states, broadening their exclusive reach over ancillary disputes.

7. Conclusion

Vigeland v Zurich Insurance plc [2025] IESC 46 is a carefully reasoned, forward‑looking judgment that substantially clarifies – albeit provisionally – the meaning of “proceedings concerned with the enforcement of judgments” in Article 22(5) of the Lugano Convention.

The Supreme Court:

  • reaffirms the principle that exceptions to domicile‑based jurisdiction must be strictly construed;
  • situates Article 22(5) within a cluster of provisions protecting state sovereignty over sensitive matters (property, companies, public registers, IP and enforcement);
  • draws on Jenard, Pocar, Reichert (No. 2), Reitbauer and English case law to conclude that Article 22(5) is confined to actual execution and coercive enforcement acts;
  • concludes that a tort action for non‑party costs against a company controller – and its mirror‑image negative declaration – is not an enforcement proceeding for Article 22(5) purposes;
  • accepts the sometimes awkward consequences of the Brussels/Lugano scheme (e.g. foreign law issues being litigated in the defendant’s domicile) and rejects attempts to label them as abuses; and
  • fulfils its duty as a court of last resort by referring the question to the CJEU under Article 267(3) TFEU and Protocol 2, staying the appeal pending an authoritative answer.

The significance of the judgment lies less in the immediate outcome (which is suspended pending the CJEU ruling) and more in the analytical framework it offers:

  • It provides a structured, sovereignty‑sensitive understanding of enforcement jurisdiction.
  • It clarifies that not all proceedings economically linked to a judgment (e.g. non‑party costs tort claims) should be subsumed under the enforcement exception.
  • It confirms the continued centrality of the domicile rule, even in contentious cross‑border cost recovery scenarios.

For practitioners, the case signals that:

  • the line between “enforcement” and other proceedings remains sharply drawn;
  • strategic use of negative declaratory actions remains viable, subject to lis pendens and any eventual CJEU refinements; and
  • insurers and judgment creditors must factor in the possibility that disputes about third‑party liability for costs may need to be litigated where those third parties are domiciled, not necessarily in the original enforcement state.

Ultimately, Vigeland exemplifies a careful, principled approach to the interpretation of the Lugano Convention, balancing legal certainty, sovereignty concerns, and the functional realities of modern cross‑border litigation. The CJEU’s forthcoming answer to the Supreme Court’s question will determine whether this narrow vision of Article 22(5) becomes the settled law across the Lugano and Brussels landscapes.

Note: This commentary is for informational and analytical purposes only and does not constitute legal advice.

Case Details

Year: 2025
Court: Supreme Court of Ireland

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