knowledge 14 January 2022 |

Error in Ex Parte Order could Cost the Erring Party

In Generator Source Limited Liability Partnership (t/a Diesel Service And Supply) v IGSTSP Limited (t/a 360 Turbines), Tasiast Mauritanie Limited Société Anonyme and Kinross Gold Corporation¹, the order granted leave to issue proceedings out of the jurisdiction on a foreign domiciled defendant but a failure to list the sub-rule being relied upon in the ex parte docket led to the incorrect sub-rule being referenced in the ex parte order granted. This error meant that the court order did not properly identify the basis on which the Irish Courts were asserting jurisdiction. The error remained undiscovered until the proceedings were served and the defendants then challenged jurisdiction under the sub-rule identified in the order. While such errors may seem minor and easily rectifiable, if left unidentified, they may cause serious implications for the validity of service and jurisdiction of proceedings.

Background

An ex parte application for leave to serve notice of a summons was made by the plaintiff in October 2019 pursuant to Order 11, rule 1, which lists a number of circumstances in which service out of the jurisdiction may be allowed. The plaintiff was granted leave by the High Court by relying on sub-paragraph (h) of Order 11, rule 1, used where any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction. The plaintiff’s ex parte docket referred to Order 11, rule 11 without any reference to a specific sub-rule. The subsequent ex parte order made by the Court referred to sub-paragraphs (e) and (f) of Order 11, Rule 1. The error in the ex parte order was not spotted by the plaintiff until after the defendants had been served with the proceedings and had issued a motion challenging the Irish Court’s jurisdiction under sub-paragraphs (e) and (f) of Order 11, Rule 1.

Background to the Judgment

The judgment of Mr Justice Simons was delivered as a result of the defendants seeking their costs of the plaintiff’s application under the slip rule to amend the ex parte order and their costs of bringing a jurisdictional challenge motion on foot of an incorrect court order having been served on them. The defendants sought their costs on the basis that the proceedings were improperly served out of the jurisdiction and the plaintiff’s considerable delay in identifying and correcting the error on the face of the order.  

Decision

In delivering his judgment on 21 December 2021, Mr Justice Simons highlighted the seriousness of the issuance and service of proceedings outside the jurisdiction on a foreign domiciled defendant who must be entitled to rely on the papers as served. While the court expressed sympathy with the procedural error, it was held that the obligation to confirm that the terms of the order are accurate resided with the plaintiff and its legal representatives and that the defendants were entitled to recover their costs.

Conclusion

It is a timely reminder that the well-known obligation upon a party who wishes to issue and serve intended proceedings outside of the jurisdiction (and outside the EU) to ensure the appropriate sub-rules of Order 11(1) RSC are stated correctly in the ex parte docket, referred to in the affidavit grounding the application and that the order as perfected contains a recital of the relevant sub-paragraphs under which it has been made, stated by the Court of Appeal² in the form of an exhortation to practitioners, is as important as ever and failure to do so could cost the erring party.

Also contributed by Eoin Galligan