Factual and Procedural Background
The plaintiffs, numbering 491 individuals, were originally employed by Company B located primarily in The State. Company A, a separate legal entity based in The State, operates in the construction and development industry. Pursuant to a consultancy agreement dated 1st November 2001, Company B seconded the plaintiffs to The State. Company A arranged for work permits through the relevant government department and provided accommodation and food during the plaintiffs' stay. A dispute arose regarding pay rates, leading the plaintiffs to notify the defendants of their intention to initiate legal proceedings. By order dated 28th July 2008, the plaintiffs obtained leave to serve a plenary summons on Company B outside the jurisdiction. Both defendants entered conditional appearances solely to contest the jurisdiction of the courts of The State. The plaintiffs seek declarations regarding employment agreements, payment of outstanding wages and benefits, damages for breaches of contract and statutory duties, and an account of sums due. The defendants subsequently moved to stay the proceedings on the ground of forum non conveniens, asserting Turkey as the appropriate forum. The court was also asked to consider the applicability of the Brussels Regulation EC 44/2001 to the case.
Legal Issues Presented
- Whether the proceedings should be stayed on the ground of forum non conveniens in favour of the courts of Turkey.
- Whether the provisions of Brussels Regulation EC 44/2001 apply to these proceedings and preclude a stay based on forum non conveniens.
- The enforceability and effect of an exclusive jurisdiction clause in the employment contracts favoring the courts of Ankara, Turkey.
- The proper interpretation of service out of jurisdiction rules under the Rules of the Superior Courts in light of the Regulation and the defendants' domiciles.
Arguments of the Parties
Defendants' Arguments
- The application for leave to serve outside the jurisdiction was made under common law principles (Order 11), thus the doctrine of forum non conveniens applies.
- Turkey is the natural and appropriate forum due to multiple connecting factors: plaintiffs' domicile, location of witnesses, language, documents, and the exclusive jurisdiction clause in the contracts favoring Ankara courts.
- Approximately 102 plaintiffs have brought similar claims in Turkey, which courts have already considered.
- The defendants rely on case law establishing that exclusive jurisdiction clauses should be enforced unless strong reasons exist to depart from them.
- The Brussels Regulation does not apply because the application was not made pursuant to Orders 11A or 11B, and Turkey is not an EU member or contracting state to relevant conventions.
Plaintiffs' Arguments
- The court has jurisdiction under the Brussels Regulation EC 44/2001, which precludes the application of forum non conveniens in this context.
- Service out of jurisdiction was properly made under Order 11 because Turkey is not a contracting state under the Regulation or related conventions, thus Order 11A does not apply.
- The absence of the required endorsement on the plenary summons is a procedural error that does not affect jurisdiction under the Regulation.
- Article 21 of the Regulation concerning contracts of employment renders the exclusive jurisdiction clause unenforceable as it was not entered into after the dispute arose and restricts employees' rights.
- The Irish courts are the appropriate forum due to numerous connections: employment under Irish law, presence of Irish witnesses and documents, involvement of Irish government authorities, and issues of Irish public policy.
- The Turkish courts have demonstrated inability or unwillingness to properly apply Irish employment law and have failed to provide adequate protection of rights under Irish law.
- The plaintiffs would be statute barred from pursuing parts of their claims in Turkey.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Spielberg v. Rowley [2004] IEHC 384 |
Service outside jurisdiction under Order 11 and non-application of Regulation if not invoked at time of service. |
Referenced by defendants to argue Regulation does not apply due to service under Order 11 without Regulation endorsement. |
| Donohue v. Armco [2002] 1 All ER 749 |
Effect of exclusive jurisdiction clauses; such clauses should be enforced absent strong reasons to depart. |
Supported defendants' contention that the exclusive jurisdiction clause favoring Turkish courts should be upheld. |
| Microsoft Ireland Operations Limited v. EIM International Electronics Limited [2010] IEHC 228 |
Validity and enforcement of jurisdiction clauses in contractual disputes. |
Used to emphasize that jurisdiction clauses should not be lightly set aside. |
| Owusu v Jackson [2005] E.C.R.I. 383 |
Brussels Convention precludes courts declining jurisdiction on grounds of forum non conveniens in favor of non-contracting states. |
Central to plaintiffs' argument that the Regulation precludes a stay on forum non conveniens grounds. |
| Goshawk Dedicated Limited and Others v. Life Receivables Ireland Limited [2008] IEHC 90 |
Common law forum non conveniens doctrine substantially eroded by Brussels Regulation. |
Supported plaintiffs' submission that forum non conveniens no longer applies where Regulation governs jurisdiction. |
| Spiliada Maritime Corporation v. Cansulex Limited [1987] AC 460 |
Test for forum non conveniens: stay only if there is a more appropriate forum with competent jurisdiction. |
Framework for assessing forum non conveniens applied in court's analysis. |
| Intermetal Group Limited v. Worslade Trading Limited [1998] 2 I.R. 1 |
Application of forum non conveniens test in Irish law consistent with English law. |
Referenced to confirm the appropriate test and emphasize justice for both parties. |
| McCarthy v. Pillay [2003] 1 IR 592 |
Onus on party seeking stay to demonstrate distinctly more appropriate forum; onus then shifts to opposing party to show justice requires refusal. |
Applied in assessing whether Turkey is more appropriate forum and whether stay should be refused. |
| Schmidt v. The Home Secretary [1995] 1 ILRM 310 |
Application of Order 11A rules where Judgments Convention applies; limits service out of jurisdiction under Order 11. |
Considered in relation to service rules and applicability of Order 11 versus 11A. |
Court's Reasoning and Analysis
The court began by considering the doctrine of forum non conveniens, applying the test established in Spiliada Maritime Corporation and endorsed in Irish case law, which requires a stay only if there is a clearly more appropriate forum with competent jurisdiction. The defendants argued that Turkey was the appropriate forum based on factors such as plaintiffs’ domicile, language, location of witnesses and documents, and the exclusive jurisdiction clause in the employment contracts. The plaintiffs countered that the Irish courts had jurisdiction under the Brussels Regulation EC 44/2001, which precludes the application of forum non conveniens in civil and commercial matters governed by the Regulation.
The court examined whether the Regulation applied despite the procedural irregularity that the plenary summons did not contain the required endorsement. It was held that the Regulation is the basis of jurisdiction and cannot be ousted by procedural errors in national rules. The plaintiffs were entitled to rely on the Regulation because Turkey is not an EU member or contracting state to the relevant conventions, meaning service on Company B had to be under Order 11, and the Regulation still applies to the case.
The court analyzed the effect of the exclusive jurisdiction clause, referencing Donohue v. Armco, which holds such clauses should be enforced unless strong reasons exist to depart. The plaintiffs argued, relying on Article 21 of the Regulation, that the clause was unenforceable because it was not entered into after the dispute arose and restricts employees’ rights.
Considering the decision in Owusu, the court recognized that the Regulation precludes courts from declining jurisdiction on grounds of forum non conveniens when jurisdiction is founded on the Regulation. This effectively removes the common law discretion to stay proceedings on that basis. The court found that the Regulation applied and precluded the defendants’ application for a stay.
In the alternative, if the Regulation did not apply, the court considered the common law forum non conveniens test. Balancing the factors, including the plaintiffs’ employment under Irish law, presence of Irish witnesses and documents, and issues of Irish public policy, against the defendants’ points about language and location, the court concluded that the action had the most real and substantial connection to The State and that justice required the proceedings to continue there.
Holding and Implications
The court REFUSED the defendants’ application to stay the proceedings on the ground of forum non conveniens.
The decision establishes that where the Brussels Regulation EC 44/2001 applies, the courts of The State have mandatory jurisdiction and cannot decline jurisdiction based on forum non conveniens, even if one party is domiciled in a non-member state. The court also emphasized the limited circumstances under which an exclusive jurisdiction clause may be departed from in employment contracts under the Regulation. The direct consequence is that the plaintiffs’ claims will proceed in the courts of The State. No new precedent beyond the application of established authorities and the Regulation was set by this decision.