THE SUPREME COURT
[Appeal No: 044/2013]
O’Donnell J.
Clarke J.
MacMenamin J.
Irish Bank Resolution Corporation Limited (In Special Liquidation), Quinn Investments Sweden AB and Leif Baecklund
Plaintiffs/Respondents
and
Sean Quinn, Ciara Quinn, Colette Quinn, Sean Quinn Junior, Brenda Quinn, Aoife Quinn, Stephen Kelly, Peter Darragh Quinn, Niall McPartland, Indian Trust SA, Forfar Overseas SA, Lockerbie Investments SA, Clonmore Investments SA, Marfine Investments Limited, Blandun Enterprises Limtied, Mecon FZE, CJSE Vneshkonsalt, OOO Stroitelnye Tekhnologh, III RLC-Development, Karen Woods, Senat FZC, Senat Legal Consultancy FZ LLC and Michael Waechter
Defendants
(Mecon FZE Sole Appellant)
Judgment of Mr. Justice Clarke delivered the 28th July, 2016.
1. Introduction
1.1 Litigation between the parties to these proceedings (or at least some of them) has been ongoing in the courts of this jurisdiction and others for quite some time. The principal underlying issue is, by now, well known. The first named plaintiff/respondent (“IBRC”) contends that various members of the Quinn family engaged in wrongful actions designed to place assets, which had been charged in favour of IBRC, outside of its reach. Various corporate entities are said to have played a role in putting those plans into place. It is in that context that the position of 16th named defendant/appellant (“Mecon”) comes into play. Mecon is a Dubai registered company which, it would appear, engaged in certain transactions concerning relevant Indian companies. It is asserted by IBRC and the other plaintiffs (being a Quinn related company now under the control of IBRC and a receiver appointed in respect of assets of that and other relevant companies) (collectively “IBRC” where the context so admits) that the transactions in which Mecon was involved formed part of the general plan to place Quinn related assets outside the reach of IBRC thus frustrating the attempt to realise those assets for the purposes of part payment of debts owed by members of the Quinn family and Quinn entities to IBRC.
1.2 It was in those circumstances that an application was made to join Mecon to these proceedings. However, Mecon is not an Irish company nor is it a company incorporated within the EU or subject to the jurisdictional arrangements applicable to individuals or corporations to whom certain EU jurisdictional law applies. It thus followed that it was necessary to obtain the leave of the High Court to facilitate the commencement of these proceedings against Mecon outside the jurisdiction (in practice to give Mecon formal notice of the proceedings). In the ordinary way that application was made ex parte. However, Mecon brought an application seeking to set aside the order granting leave. As an alternative Mecon suggested that these proceedings (insofar as they relate to the claims against it) should be stayed on the basis that what was said to be similar proceedings had previously been commenced in India by persons and entities acting in the interests of IBRC. It was argued that India was a more convenient or appropriate location to deal with the issues in question not least because those acting in IBRC’s interests had chosen to instigate proceedings in India prior to Mecon being joined to these Irish proceedings.
1.3 The High Court (Charleton J.) rejected Mecon’s application (Irish Bank Resolution Corporation & ors v. Quinn & ors [2013] IEHC 1). Mecon has appealed to this Court from that rejection. Against that background it is first appropriate to turn to the issues.
2. The Issues
2.1 While 13 grounds of appeal were set out in the notice of appeal filed by Mecon, it is fair to say that the real issues between the parties became a lot clearer in the course of the oral hearing conducted before this Court. In substance there remained three main sets of grounds of appeal.
2.2 First there were grounds concerning the appropriateness of the original order of the High Court to grant leave to serve notice outside of the jurisdiction. It will be necessary to turn to the precise basis on which that leave was granted in due course. It was accepted by both parties at the hearing before this Court that one of the factors which a court granting leave ought properly take into account is whether there is a sufficient basis established for the case against the foreign defendant who is sought to be joined. The principle behind that requirement is that a court, by granting leave, requires a foreign defendant to come to this jurisdiction to defend proceedings. An Irish court should not do so unless there is a sufficient basis established for bringing the case in the first place.
2.3 It would be fair to say that there may have been some differences between the positions of the parties as to the precise threshold which a plaintiff needs to cross in order to establish a sufficient basis for its claim. It would also be fair to say that there were differences between the parties as to the materials on which a court can or should rely in satisfying itself that whatever threshold may be appropriate has been met. In summary, therefore, the first set of issues concerns whether a sufficient case had been established by IBRC to justify requiring Mecon to come to Ireland to defend these proceedings.
2.4 The second set of issues concerns the contention of Mecon that India would be a more appropriate venue for the trial of the issues which arise in these proceedings insofar as they relate to Mecon on the basis of the common law doctrines of forum non conveniens and lis pendens. A series of subsidiary arguments under that broad heading were canvassed.
2.5 The third potential issue concerns the possible impact of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“the Brussels Regulation”) on the question of the jurisdiction of this Court to stay these proceedings in favour of the proceedings already in existence in India. The case made by IBRC under that heading is that the traditional common law jurisdiction to stay on the basis of convenience no longer subsists in the light of the Brussels Regulation. On the other hand, Mecon argues that the jurisdiction continues to subsist. In that context Mecon suggested before the High Court that, at a minimum, the issue is not acte clair and, should it prove necessary to determine that issue in order to resolve this application, it is suggested that this Court is obliged to refer the matter to the Court of Justice of the European Union under Art. 267 of the Treaty on the Functioning of the European Union.
2.6 In the course of discussion with counsel on both sides during the oral hearing it was agreed that it was logical to consider the second set of issues before going on to determine whether it is necessary to resolve the third question. If, applying established common law principles, it would be appropriate to stay these Irish proceedings, insofar as they relate to Mecon, in favour of the Indian proceedings then it obviously would be necessary to determine whether the jurisdiction of this Court to so stay the proceedings has been displaced by the Brussels Regulation. In those circumstances the third issue would clearly arise including the question of whether a reference is mandated.
2.7 On the other hand, in the event that this Court concluded that the application of established common law principles did not require that the proceedings against Mecon be stayed, then the question of the effect of the Brussels Regulation would be irrelevant. It would follow that it would not be necessary to decide that question. It would, therefore, further follow that it would be inappropriate to make a reference on the point for the issue in question would not require to be determined in order to resolve this appeal.
2.8 In those circumstances it seems to me that the appropriate course of action to adopt is to consider the first two sets of issues and then go on to consider the third issue only if it should prove necessary so to do in the light of the resolution of the second set of issues. The two sets of issues concerned are somewhat standalone but both have, to some extent, their roots in the procedural history both of these proceedings and the relevant Indian proceedings. I, therefore, turn to that history.
3. Procedural History
3.1 Prior to its nationalisation, IBRC (then Anglo Irish Bank) made substantial loans to the Quinn family and to entities connected with them. On the 14th April, 2011, IBRC called in those loans. A plenary summons was then issued against some of the defendants. The High Court subsequently heard applications to join the remaining defendants. These applications were granted. The High Court also granted injunctive relief preventing the Quinn family from disposal of assets. A number of the intended additional defendants were based outside the jurisdiction of the Irish courts (some located in Belize, the United Arab Emirates and Russia) and, as such, leave was required to be sought, under the Rules of the Superior Courts (“the Rules”), to give effect to service of notice of these proceedings on those defendants outside of the jurisdiction. Leave in respect of Mecon was given under O.11, r.1(f), (g) and (h) of the Rules. The terms of these provisions state that service out of the jurisdiction of an originating summons or notice of an originating summons may be permitted by a court whenever, respectively, any cause of action is founded on a tort committed in the jurisdiction, (sub rule (f)), any injunction is sought as to anything to be done within the jurisdiction (sub rule (g)) and finally, any person out of the jurisdiction is a necessary or proper party to proceedings properly brought against some other person duly served within the jurisdiction (sub rule (h)).
3.2 The order granting leave relevant to Mecon was made by the High Court (Kelly J.) on 14th June 2012. However, on 19th November, 2012, Mecon brought an application seeking two alternative reliefs. The first was an order under O.12, r.26 of the Rules discharging the previous order made by the Court authorising service of notice outside of the jurisdiction. The second, alternative, order sought was one staying the proceedings on the basis of forum non conveniens and lis pendens in particular by reference to the existence of the prior Indian proceedings.
3.3 The Indian proceedings concerned had been commenced in Hyderabad in December 2011 by Quinn Logistics Sweden AB represented by the third named plaintiff/respondent (“Mr. Baecklund”) who is the bankruptcy receiver of Quinn Investments Sweden AB (the second named plaintiff/respondent) (“Quinn Sweden”) and 31 subsidiary companies including Quinn Logistics Sweden AB.
3.4 The central allegation in the Indian proceedings relates to a share transaction whereby Mecon received shares in a company called Mack Soft which is said to be the owner of a valuable property asset in Hyderabad. The contention is that the transaction was concluded at a significant undervalue. The relief claimed in the Indian proceedings is directed towards reversing the effect of that share transaction through a variety of alternative means. Injunctive relief is also sought designed to prevent the creation of any third party rights over the property owned by Mack Soft and the restraining of any further transactions involving the shareholding in Mack Soft. It is fair to say that the focus of the Indian proceedings is, therefore, designed to reverse the relevant share transaction by which Mecon came to hold its shareholding in Mack Soft and also to put in place various interlocutory measures designed to preserve the position until a final decision is made.
3.5 The proceedings in India resulted in an interim injunction being granted on the 5th January, 2012 in the following terms: an injunction restraining Mecon FZE its agents, servants or anybody acting through or under them from transferring, alienating or creating any right, title or interest in respect of the 376, 301 shares in Mack Soft or any part thereof to or in favour of any third party; injunctions restraining Mack Soft and Peter Quinn, John (Sean) Ignatius Quinn, John Dara O’Reilly, Sandeep Reddy Chandagari Venkata, Madhukar Nekkanti, Mohd Sabir Pervez and Mr. Charag Ahmed, their agents, servants or anybody acting through or under them from transferring, alienating or creating third party rights, title or interest in respect of Q City and from changing or taking any steps to change the share capital structure of Mack Soft; an injunction restraining Quinn Logistics India and Quinn Lodgings India their agents, servants or anybody acting through or under the, from transferring, alienating or creating any rights in respect of their shares in Mack Soft; an injunction restraining Peter Quinn, John (Sean) Ignatius Quinn, John Dara O’Reilly, Sandeep Reddy Chandagari Venkata, Madhukar Nekkanti, Mohd Sabir Pervez and Mr. Charag Ahmed, their agents, servants from inducting any directors in Mack Soft. The essence of the injunctive relief was to prevent Mecon acting as true owners of the shares acquired in Mack Soft. It would appear that those injunctions remain in place.
3.6 Returning to these Irish proceedings it is necessary to set out the basis on which IBRC asserted that leave to serve Mecon outside of the jurisdiction should be granted. As noted earlier IBRC persuaded the High Court on an ex parte application that the action against Mecon fell within the ambit of O.11, r.1(f), (g) and (h) of the Rules.
3.7 As to the tort of conspiracy (under sub rule (f)), the allegation principally related to defendants who were resident in the State. However, it was alleged that non Irish defendants (including Mecon) participated in the tort to the extent that their actions outside of the State had the effect of completing the tort in this jurisdiction. Thus, it was said, the alleged tort was committed by those non Irish parties in this jurisdiction.
3.8 In relation to sub rule (g), a significant aspect of the orders sought by IBRC entailed injunctive relief. It was argued that compliance with such injunctions would require all defendants, regardless of their location, to account in this State for various assets which had been transferred from the Quinn International Property Group and to take all steps necessary to facilitate the transfer back to the IBRC or other relevant entities of shares and assets. Thus it was argued that the relief claimed included orders which, if obtained, would require non Irish defendants including Mecon to carry out actions in this jurisdiction.
3.9 In the context of both sub rule (f) and sub rule (g), IBRC contended that Mecon was closely associated with a Michael Waechter, the principal of Senat FZC (the 21st named defendant), the agent who was said to have arranged the purchase of eight offshore companies for the Quinn family and who also was associated with a law firm which was asserted to have project managed and coordinated the international legal actions of the Quinn family. IBRC contended that Mecon was beneficially owned by or on behalf of the Quinn family or controlled by them and was used for the purposes of advancing asset stripping activities.
3.10 Finally, in relation to sub rule (h), IBRC contended that these proceedings generally were properly brought in this jurisdiction against a significant number of defendants who were amenable to the Irish courts and were properly served within the jurisdiction under the Rules. In that context it was said that the proceedings against Mecon formed an integral part of these proceedings generally and that, therefore, Mecon was a proper party to proceedings appropriately brought against other persons duly served within the jurisdiction.
3.11 In its application to the High Court, two central arguments were advanced by Mecon for setting aside the order providing for service of notice outside of the jurisdiction or for staying the proceedings insofar as the claims against them are concerned.
3.12 On the issue of setting aside the order granting leave, it was said that there was no evidence that Mecon was owned or controlled by the Quinn family or by any of their interests; that the mere receipt of an asset does not equate to an unlawful act and that the reception of an asset is not necessarily an action in furtherance of a conspiracy. On that basis it was argued that the circumstantial evidence produced was insufficient to further the allegations made that purport to turn a commercial transaction into a sham in furtherance of asset removal.
3.13 On the question of a stay it was said that, since an action had already begun before the High Court of India, the principle of lis alibi pendens should bar any subsequent action against Mecon in this jurisdiction.
3.14 In addition it was argued that, since the agreement regarding the relevant share transaction was performed in India, was subject to the laws of that jurisdiction, and that the objectives of the legal action initiated in that jurisdiction was to upset that transaction, it followed that the natural forum for the disposal of any issue as to the validity of those transactions was in India.
3.15 In response to Mecon’s application IBRC argued that it had placed sufficient evidence before the Court to justify proceedings being brought against Mecon under each of the three sub rules in respect of which the order granting leave had been made.
3.16 On the question of a stay IBRC placed particular reliance on the importance of all issues being determined in a single set of proceedings. In that context it was said that the issues raised in the Indian proceedings were much narrower than the issues raised in these proceedings even insofar as these proceedings relate to Mecon. In addition it was said that the issues raised in these proceedings concerning Mecon formed an integral part of the overall claim which IBRC wished to assert concerning actions on the part of members of the Quinn family, Quinn family entities and parties allegedly associated with Quinn family entities, to place assets outside the reach of IBRC, Quinn Sweden and other associated entities. On that basis it was argued that Ireland was the natural or appropriate jurisdiction in which the entirety of the issues arising in these proceedings should be determined and that such remained the case notwithstanding the existence of what was said to be the much more limited Indian proceedings. In the light of those positions adopted by the parties it is next necessary to turn to the High Court judgment.
4. The Judgment of the High Court
4.1 In his judgment, Charleton J. noted that the central claim of IBRC was one of conspiracy and that five main grounds are asserted. First, IBRC contend that the Quinn family and entities within their control perpetrated an international conspiracy. Directors of relevant corporations were alleged to have failed to comply with their duties of care and fidelity to the companies they ought to have been serving. Instead of maintaining these duties, the directors are alleged to have sold corporate assets under their appropriate market value. Second, the Quinn family and their associated companies are said to have made an agreement to breach the share pledges to IBRC (at the time, Anglo Irish Bank) through these undervalue corporate sales. Third, IBRC suggested that certain of the parties both undermined and disregarded orders of the Irish High Court made on the 27th June, 2011. Fourth, certain individuals are alleged to have forged and backdated documents in the context of perpetuating a scheme of deception to keep assets outside the reach of IBRC. Finally, IBRC contended that the Quinn family and associated corporations and individuals intentionally engaged in a scheme to make relevant valuable assets, and the individual parties owning shares in them, judgment proof.
4.2 On the question of whether Mecon had been properly joined in accordance with the requirements of O.11, the trial judge noted the position adopted by counsel on behalf of Mecon concerning what was said to be an absence of evidence of any wrongful acts on Mecon’s part. The trial judge took the view that, if it could be established that the share transaction which is at the heart of the allegations against Mecon was at a gross undervalue, appropriate inferences might properly be drawn by a court. The trial judge found that such inferences might be capable of permitting a trial judge to take the view that the wrongs alleged against Mecon could be made out. In particular the trial judge noted that what seemed to be an apparent discrepancy in value had not been explained. In substance it would appear that the trial judge was satisfied that IBRC had placed before the Court sufficient evidence or materials to demonstrate that the wrong alleged against Mecon was capable of proof at trial. That being the test which the trial judge identified as being appropriate it followed, in the view of Charleton J., that that aspect of Mecon’s application should be rejected.
4.3 On the question of forum non conveniens and the connected issue of the prior Indian proceedings, Charleton J. noted that the grant of the stay sought by Mecon would force IBRC to bring their claim in two separate sets of proceedings. Apart from general inconvenience, the trial judge noted that there might well be a risk of witnesses not being amenable to summons in one or other jurisdiction and the connected risk of inconsistent conclusions. Charleton J. noted that the existence of prior foreign proceedings did not automatically require a stay of subsequent proceedings in this jurisdiction. The trial judge suggested that it may, for example, be necessary to bring proceedings in differing jurisdictions for the purposes of enforcement or the like.
4.4 In particular Charleton J. had regard to the fact that a particular focus of the Indian proceedings was to obtain injunctive relief designed to preserve the position. On the other hand the trial judge came to the view that the conspiracy alleged, if it could be established, appeared to be focused principally in Ireland even though executed in a number of jurisdictions including India in respect of Mack Soft. Likewise, the conspiracy was said to potentially be a breach of orders already existing in this jurisdiction.
4.5 The trial judge also analysed the respective stage which the proceedings in both jurisdictions had reached. It was noted that the Irish proceedings were subject to extensive case management in the commercial list with a view to an early and focused hearing. The view was expressed that the Indian proceedings had not progressed to anything like the same extent.
4.6 On that basis the trial judge took the view that Ireland was a more natural forum. The trial judge went on to consider the consequences for the application before him of the Brussels Regulation but, as I propose leaving that aspect of the case over for the moment, it is unnecessary at this point to set out the trial judge’s conclusions in that regard.
5. The Argument on Appeal
5.1 As noted earlier there were three sets of issues which arose on this appeal. However, those issues which concern the application of the Brussels Regulation only arise in the event that it would, applying traditional common law principles, be appropriate to stay these proceedings on the basis of forum non conveniens or lis pendens. At this stage it is, therefore, necessary only to set to the argument put forward in respect of the other two sets of issues. I propose to deal with them in turn.
5.2 The first set of issues concerns whether the criteria necessary to justify the granting of an order facilitating service outside the jurisdiction were met either on the basis of the evidence and materials initially put before the High Court on the ex parte application for leave or on the basis of the evidence and materials before the Court at the hearing of the application by Mecon to set aside that leave.
5.3 In the written submissions filed on its behalf, Mecon seemed to assert that the only material on which reliance could be placed in that regard was the statement of claim. Citing Spielberg v. Rowley & ors [2004] IEHC 384, Mecon suggested that the Court should primarily look at the statement of claim and that, therefore, the test applied by the trial judge at para. 3 of his judgment (in which he referred to the necessity to look at the affidavit evidence to determine whether what is alleged may be reasonably capable of being proven) was mistaken. Quite frankly I found it very difficult to understand how that argument could advance Mecon’s case. The overall issue is as to whether IBRC had put forward a sufficient basis for establishing that there was a potentially sustainable claim against Mecon which came within any of the specific categories specified in the rules in respect of which leave was granted. The statement of claim makes an allegation of wrongdoing on the part of Mecon which could, on its face, arguably bring the case within at least some of the relevant sub-rules. If the only material which can be looked at was, as Mecon appeared to argue, the statement of claim, then it is very hard to see how leave should not have been granted (or should be set aside in the event of an application in that regard) provided that the statement of claim contained an allegation which prima facie brought the case within any one of the sub-paragraphs of Order 11.
5.4 Indeed, IBRC in its written submissions accepted that the burden on it might well be a greater one than simply to assert in its pleadings a claim which prima facie met one of the criteria specified in Order 11. IBRC accepted that it was appropriate for the Court to consider any evidence placed before it with a view to assessing whether it had been shown that it asserted a case which was reasonably capable of being proven so as in turn to justify bringing a foreign defendant to this jurisdiction to answer that case. However, IBRC suggested that the issue with which Finlay Geoghegan J. was concerned in Spielberg was the identity of “the principal subject matter of the proceedings” for the purposes of Art. 22 of the Brussels Regulation. It is obvious that the first and main port of call in making such an assessment must be the pleadings. The issue with which the Court was concerned on this application, however, is as to whether a sufficient basis had been made out for a claim which met one of the criteria under Order 11. Clearly the pleadings would require to assert a claim which came within at least one of those categories. But the question of whether there was a sufficient underlying basis to the claim to warrant bringing a foreign defendant to this jurisdiction to answer the claim concerned is a very different type of question to the one with which Finlay Geoghegan J. was concerned in Spielberg.
5.5 In fairness leading counsel for Mecon accepted in the course of debate at the oral hearing that the argument that the Court might be confined to the pleadings was one which was unlikely to operate in favour of his client and the point was not actively pursued.
5.6 Under this aspect of the case a further ground of appeal which was pursued on behalf of Mecon in its written submissions suggested that some of the comments made by the trial judge in the course of his judgment involved an inappropriate resolution of competing facts asserted in the affidavits. In a similar vein it was also said that the trial judge placed excessive weight on the factual assertions made on behalf of IBRC and insufficient weight on the factual assertions made on behalf of Mecon in circumstances where “the credibility of the evidence was not able to be assessed”. Again, in the course of discussion during the oral hearing, counsel acknowledged that, while his clients might have a legitimate complaint in that regard, nonetheless the complaint concerned might not really go to the merits or otherwise of the appeal. It is clear, for reasons which will be briefly addressed in due course, that, so far as the claim which is said to warrant the granting of leave to serve outside the jurisdiction is concerned, it is necessary that the Court be satisfied that there is a claim which comes within one of the relevant sub-paragraphs of O.11 and which is shown to be reasonably capable of being proven so as to justify the proceedings being maintained in this jurisdiction rather than somewhere else. In that context it is not necessary for the Court to resolve any issues as to the substance of the case (whether of fact or law) save to the minimal extent necessary to determine whether the claim is reasonably capable of being proven. In the main the assessment will be based, therefore, on evidence or materials put forward by the plaintiff for the fact that the plaintiff’s claim may be denied, however strenuously, will not normally mean that there is nonetheless a sufficient claim which requires to be determined. The fact that the claim is contested however strongly is irrelevant to the question of whether leave to serve outside the jurisdiction should be granted.
5.7 There may, however, be some cases where an argument or evidence or materials are put forward by the relevant defendant which would, unless countered or explained, provide a knockout blow to the case. For example the defendant might draw attention to (or give evidence in respect of) a contract on which the claim was founded and point out that the defendant was not a party to the contract but that, rather, a different but similarly named person or entity was a party to the contract. If correct, such an assertion would, in an appropriate case, clearly mean that there would be no claim against the named defendant capable of being proven and the order granting leave would have to be set aside. However, the plaintiff might be able to point to some reason or further evidence which might explain how the named defendant was arguably said to be liable under the relevant contract notwithstanding the points relied on. Doubtless other examples could be given.
5.8 However, the overriding consideration is that the starting point of an assessment of whether the plaintiff has established a sufficient case must be an assessment of the claim as pleaded together with such evidence as the plaintiff may put forward. Defence evidence which goes no further than establishing that the claim is disputed will not be relevant. There may, however, be limited cases where the defence evidence might, unless explained or countered by sufficient argument, amount to a knockout blow. In such a case the defence evidence may be relevant not merely to assert the immaterial fact that the claim is contested but to assert the highly material fact that the claim is unstateable.
5.9 As a result of a discussion along those lines at the oral hearing, it was again the case that counsel for Mecon did not press this point. It seems to me that counsel was well advised to adopt that course of action. The thrust of the written submissions filed on behalf of Mecon on these points was, in my view, misconceived. The Court is not engaged in some assessment of the relative strengths of the plaintiffs’ and defendants’ case. Rather the Court has to determine whether there is a sufficient basis for the proposition that the plaintiff may have a claim under one of the qualifying categories in O.11 which could justify bringing the defendant to this jurisdiction to answer the claim concerned. The bar is a low bar. It is simply designed to prevent a defendant being brought to this jurisdiction to answer an unstateable claim which has no reasonable prospect of being capable of proof. The suggestion that there was something wrong with reliance on evidence which was not subject to being tested is, in the context of the precise issue with which the Court was concerned, misplaced. The Court was concerned with whether there was a claim sufficient to warrant proceedings being brought. The time to test whether that claim can actually be made out is at the trial when there will be every opportunity to test the credibility of any evidence proffered. Except in quite extraordinary circumstances it is difficult to envisage on what basis it could be contended that there should be a testing of evidence purely designed to meet a very low threshold of demonstrating that the plaintiff has a claim which is reasonably capable of proof.
5.10 The final aspect of the argument on the question of whether the trial judge was incorrect not to set aside the order granting leave concerned whether it could properly be said that the claims sought to be brought against Mecon in these proceedings came within any of the relevant sub-orders of Order 11, rule 1. In that context it must also be recalled that it is only necessary that the claim sought to be advanced comes within one of the relevant sub-rules in order for the claim to be properly maintained in this jurisdiction.
5.11 Whatever might be the case concerning whether the claim could properly come within sub-rules (f) and (g), which concern torts committed or injunctions relating to acts within the jurisdiction, it is difficult to see how a credible argument could be put forward to suggest that sub-rule (h), which concerns the joining of a party where the party concerned is a proper defendant to proceedings properly brought against other persons duly served within the jurisdiction, is not met. As noted by the trial judge the overall claim brought against the various defendants in these proceedings relates to an allegation of a broad conspiracy or plan to place assets beyond the reach of IRBC or those, such as Mr. Baecklund, to whom IBRC has entrusted the task of seeking to realise security. The specific allegation relevant to this appeal is that the share transfer involving Mecon formed part of that general conspiracy or plan. Whether that is so is a matter for the trial. But the allegation is that it is so. Given that Mecon allegedly formed a central part of at least one aspect of that plan (being the part that relates to the Indian companies and property to which reference has already been made) then it is very difficult indeed to see how Mecon could not be regarded as a proper party to these proceedings generally in circumstances where the proceedings have been properly brought against at least some defendants who are undoubtedly within and amenable to this jurisdiction. Again, in fairness to counsel, this point was not pushed. The merits or otherwise of the other possible bases for granting leave to serve outside the jurisdiction were not truly relevant provided that sub-rule (h) was met.
5.12 While not abandoned, therefore, it seemed to me that much of the argument on the question of whether there was a sufficient basis to justify leave to serve notice of the proceedings outside the jurisdiction fell away in the course of debate before the Court. I will return shortly to some conclusions on those issues.
5.13 The second set of grounds of appeal concerned whether, on the assumption, contrary to the submission of IBRC, that traditional common law principles concerning the doctrines of forum non conveniens and lis pendens applied, it would have been appropriate for the trial judge to stay these proceedings insofar as they relate to Mecon in favour of the Indian proceedings which were, of course, first in time. It was accepted by both sides that the common law doctrine of forum non conveniens permitted the Court to take into account a broad range of circumstances in assessing whether, given the facts of any individual case, it was more appropriate that that case be tried in Ireland or in some other jurisdiction. In that context emphasis was placed by IBRC on what was said to be the fact that the case against Mecon formed an integral part of these general proceedings because of the assertion that the share transactions which lie at the heart of the case which IBRC makes against Mecon formed part of the general plan on the part of the Quinn family and Quinn family entities to place assets beyond the reach of IBRC or those acting on its behalf or in its interest.
5.14 On the other side Mecon placed significant reliance on the fact that, for whatever reason, those acting in the interests of IBRC had commenced the Indian proceedings prior to the application to join Mecon to these proceedings. While certain procedural difficulties had been encountered in India it was said that the Indian proceedings are ongoing and that the fact that they were commenced and remain ongoing was clearly a choice made by IBRC and those associated with it. The core of the argument made was that it was unfair that Mecon should be subjected to what was said to be essentially the same case in two different jurisdictions. On that basis it was said that it was more appropriate that the issues which IBRC had first chosen to litigate in India should be determined there and that, having regard to the nature of the pleadings in the Indian proceedings, there was little or nothing left in these proceedings insofar as they relate to Mecon if the duplication with the Indian proceedings were removed. In those circumstances it was argued that the proceedings as against Mecon should be stayed in favour of the Indian proceedings.
5.15 There was also some debate between the parties as to the precise standard which had to be met by a party seeking to have proceedings stayed in favour of an alternative forum. It was accepted that the general principles were those articulated in Spiliada Maritime Corporation v. Cansulex Limited [1987] 1 AC 460 which have been endorsed in this jurisdiction in Intermetal Group Limited v. Worslade Trading Limited [1998] 2 I.R. 1, and McCarthy v. Pillay [2003] 1 IR 592. On the basis of those authorities it was common case that the burden of proof rests on the moving party, Mecon in this case, to establish the basis for the stay sought.
5.16 However, there was some dispute between the parties as to the precise standard to which it was necessary for Mecon to establish the appropriateness of the alternative forum. That is an issue to which it will be necessary to return.
5.17 As already noted, it became clear in the course of the oral hearing that the real focus of the dispute between the parties was on the forum non conveniens question. However, before going on to assess that issue it is necessary that I briefly set out my conclusions on the service outside the jurisdiction issue.
6. Conclusions on Service Outside the Jurisdiction
6.1 As already noted much of the argument under this heading was not strenuously pursued at the oral hearing. However, as the arguments were not formally abandoned, I should briefly set out my views.
6.2 First, it seems to me that, as noted earlier, the arguments advanced by Mecon, concerning the materials on which reliance should be placed, were misconceived. It is necessary that the statement of claim itself make claims which come within one or other of the sub-categories specified in Order 11, rule 1. If no such claim is actually made then leave to serve outside the jurisdiction cannot be granted and if granted should be set aside. But when it comes to the question of determining whether the undoubtedly very low threshold for establishing that there is a sufficient case to justify the bringing of the defendant to this jurisdiction is concerned, it seems to me that the Court can and should look at any relevant affidavit evidence proffered. In my view the trial judge was completely correct to suggest that it would, at least in many cases, be inadvisable simply to take the statement of claim as being necessarily capable of proof. Rather, as the trial judge suggested, the Court should come to a view as to whether it has been established that whatever is alleged may be reasonably capable of being proven in evidence to an extent that a judge might reasonably hold in favour of the plaintiff. It is not necessary for a plaintiff to establish, on affidavit evidence, a prima facie case. Rather the plaintiff is required to put forward sufficient evidence on affidavit to meet the test identified by the trial judge which is that its case is, both on the law and the facts, reasonably capable of being proven.
6.3 The issue, at the stage of an application for leave to serve outside the jurisdiction or to set aside such leave, is simply whether it is appropriate to bring the defendant to this jurisdiction to answer the claim. The low barrier is designed to exclude imposing on defendants the obligation to come to Ireland to defend cases which have no prospect of being capable of being proven. The bar needs to be seen in the light of that underlying requirement. In my view the trial judge was entirely correct in his approach in that regard.
6.4 For like reasons it seems to me that the arguments raised concerning the weight to be attached to the evidence put forward respectively by the plaintiff and the defendant and the absence of an opportunity to test the plaintiff’s evidence are also misplaced. The overall test is as I have described it. The question of whether that test is met does not involve attaching weight to differing evidence or, indeed, argument. It simply involves determining whether a very low threshold has been met by the plaintiff. It is unnecessary, therefore, to go into any detail on the precise points in the judgment (referred to in the submissions made on behalf of Mecon) which were said to demonstrate an inappropriate approach by the trial judge to the evidence.
6.5 Not alone was there no necessity for the trial judge to resolve any questions of fact for the purposes of this application, any purported resolution would have been entirely irrelevant. The only issue was as to whether IBRC had demonstrated that it had a case which was reasonably capable of proof. To the extent that the trial judge might have gone further in some of his comments then, in so doing, the trial judge was going beyond that which was necessary to determine the appropriateness of permitting service outside the jurisdiction in this case. I am satisfied that the trial judge was entitled to conclude that IBRC had put forward sufficient evidence and materials to establish that its case against Mecon was reasonably capable of proof. That was the test which was correctly identified by the trial judge and the trial judge was also correct to determine that that test had been met. As the trial judge pointed out there was potential evidence from which it is possible (and it is not necessary to go further) that a trial judge might draw a legitimate inference of wrongdoing on Mecon’s part. To the extent that it might be appropriate to interpret or infer from the judgment of the trial judge that he took a stronger view of the IBRC case then, in so doing, the trial judge may have been unnecessarily addressing issues which did not require to be determined for the purposes of this application. But even if the trial judge can be said to have engaged in such an unnecessary analysis, same does not take away from the fact that there was an entirely sustainable basis for the determination of the trial judge that the appropriate standard had been met on the materials available.
6.6 Finally, given that the requirements of O.11, r.1(h) are clearly met, it seems to me that it is unnecessary to decide whether the other, and, therefore, alternative, bases for the grant of leave to serve outside the jurisdiction were also met.
6.7 For those reasons I am more than satisfied that the trial judge was correct to reject Mecon’s application to set aside the leave to serve outside the jurisdiction. It follows that it is necessary to turn to what was, in fairness, the central issue debated at the oral hearing being whether, assuming the doctrines to continue to represent the law in this jurisdiction notwithstanding the Brussels Regulation, the trial judge was wrong not to have stayed the proceedings on the basis of the common law principles of forum non conveniens and lis pendens. I turn to that question.
7. Forum non conveniens
7.1 As noted earlier there is agreement on both sides that the onus rests on the party seeking that the proceedings be stayed in favour of what is said to be a more appropriate foreign forum to satisfy the Court that a stay is justified. In this case it follows that it is accepted that the onus in question rests on Mecon. In the written submissions filed there was, perhaps, something of a “difference of emphasis” as to standard by reference to which the party on whom that onus rested needs to establish that the alternative forum was more appropriate.
7.2 It is perhaps useful to start with the overriding principle. Assuming it to continue to exist in respect of cases such as this (and, therefore, begging the Brussels Regulation issue against IBRC for the purposes of the argument), the underlying rationale of the doctrine assumes that there are courts in two different jurisdictions which actually have, at least so far as their own private international law is concerned, jurisdiction to hear the case. It was also important to acknowledge that courts have always been anxious to minimise the risk of conflicting judgments relating to the same matter. It follows that rules designed to identify the jurisdiction in which any particular issue is to be determined form an important part of the private international law regime. To the greatest extent possible it is important that there be common agreement both on the method for determining which courts should determine a particular issue and also that other courts will recognise the decision of the court thus identified. Indeed, in the context of the European Union and the other countries which subscribe to it, the Brussels Regulation is an attempt to provide such a response.
7.3 The doctrine of forum non conveniens is, in the countries which follow the common law, a similar attempt. Where two or more countries may have jurisdiction to deal with a particular issue it follows that it is open to a party to suggest to the courts of one jurisdiction that a different jurisdiction would provide a more appropriate venue for the resolution of the issues concerned and to invite the court to whom the application is made to stay its own proceedings so that the issue can be determined in that more appropriate location.
7.4 While some of the authorities speak of the application being one involving the discretion of the court it seems to me that this is, yet again, an example of where it may be more appropriate to speak of the Court having a broad adjudicative function rather than that the Court should exercise a discretion. The Court is entitled to take into account a wide range of factors in adjudicating on which location may be more appropriate.
7.5 Indeed it is worth noting, in passing, that, while there is a very significant volume of case law on the subject, much of that case law is concerned with two sets of questions. The first, which does involve issues of principle, is as to the extent to which it must be apparent that the alternative jurisdiction proffered is more appropriate as well as the factors to be taken into account in carrying out the relevant assessment. The second set of issues which frequently arise cannot truly be said to be issues of principle as such but rather involve the application of the general principles to the circumstances of a particular case. Such case law will rarely be of assistance unless there is at least a broad similarity between the kind of circumstances involved in the cases in question or at least a sufficient similarity from which it can be said that a reasonable analogy can be drawn.
7.6 It is rarely useful to refer to a large number of cases on the basis that they all represent part of, or contribute materially to, the overall principles. That will very rarely be the case. The underlying principles in almost all areas of law are relatively few. The balance of the case law will normally be better described as involving the application of those basic principles in particular circumstances. But it would be advantageous if, particularly in written submissions, parties set out what was said to be the general underlying principles first and only then referred to cases involving the application of those general principles where there was a sufficient commonality between the circumstances of the respective cases to make a comparison useful.
7.7 The other side of that coin is that it will almost always be possible to identify some distinction between a case cited and the instant case. The real issue will be whether the distinction makes a difference. But identifying the general principles plays an important role in answering that question. The real question is not whether there is a distinction but whether that distinction makes any difference to the application of the general principles. If it does then the cases can truly be distinguished. If it does not then they cannot. But that exercise cannot be done without identifying the general principles. Furthermore, replying submissions should clearly indicate whether the general principles asserted are accepted. In many cases this will be so and the Court can then easily pass from the general principles to their application of the circumstances of the case in hand. If there truly is a significant difference on the underlying principles then it is important that this be clearly identified in the written submissions so that the Court can be aware that it may have to determine important issues as to general principles.
7.8 Given that it has been accepted in this jurisdiction that the law in Ireland is at least similar to that identified in the United Kingdom in Spiliada, it is appropriate to cite the relevant passage from Dicey Morris & Collins, The Conflict of Laws (2012, 15th ed.) 552-553, which seeks to identify seven key principles established in the United Kingdom in this field since Spiliada. The passage in question was identified by the trial judge as providing “a handy anchor point”. The passage is as follows:-
“Firstly, in general the legal burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay, although the evidential burden will rest on a party who seeks to establish the existence of matters which will assist him in persuading the court to exercise its discretion in his favour. Secondly, if the court is satisfied by the defendant that there is another available forum which is clearly a more appropriate forum for the trial of the action, the burden of proof will shift to the claimant to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in England. Thirdly, the burden on the defendant is not just to show that England is not the natural or appropriate forum, but to establish that there is another forum which is clearly or distinctly more appropriate than the English forum; accordingly, where (as in some commercial disputes) there is no particular forum which can be described as the natural forum, there will be no reason to grant a stay. Fourthly, the court will look to see what factors there are which point in the direction of another forum as being “natural forum”, i.e. that with which the action has the most real and substantial connection. These will include factors affecting convenience or expense (such as availability of witnesses) and such other factors as the law governing the transaction and the places where the parties reside or carry on business, and also whether the claim is part of a larger overall dispute which would be damaged by being fragmented. Fifthly, if the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, the court will ordinarily refuse a stay. Sixthly, if, however, the court concludes that there is some other available forum which prima facie is clearly the more appropriate, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should not be granted. In that enquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. Seventhly, this stay will not be refused simply because the claimant will thereby be deprived of “a legitimate personal or juridical advantage”, provided that the court is satisfied that substantial justice would be done in the available appropriate forum”.
7.9 That account represents a reasonable synopsis of the most recent jurisprudence in the United Kingdom in this area. It seems to me that the overall approach there identified is at least broadly indicative of the law in this jurisdiction. That approach can, in my view, be refined to a number of straightforward principles even though, as is so often the case, the application of the fundamental principles to the facts of any individual case or type of case may not be so straightforward.
7.10 The first principle is that the Court must look at practical factors such as those affecting convenience, expense, applicable law and the location or place of business of the parties to determine whether the applicant has established that there is an alternative forum which is clearly or distinctly more appropriate than Ireland and, thus, the natural forum for the conduct of the proceedings.
7.11 Second, in the event that the applicant meets that obligation, the Court is required to consider whether the respondent has put forward any sufficient basis for suggesting that justice nonetheless requires that the proceedings be tried in Ireland.
7.12 It seems to me that much of what is set out in the passage cited derives from one or other of those two underlying principles. The initial burden of proof rests on the applicant although, as in all cases, if the respondent wishes to put forward additional practical factors which might be said to favour the trial remaining in Ireland then it is for the respondent to put forward whatever evidence it may wish to rely on in that regard. Next if the interests of justice are said by the respondent to require that the proceedings be tried in Ireland despite those practical factors clearly pointing to an alternative forum then the onus rests on the respondent in that regard. The standard or threshold is that of it being shown that there is another jurisdiction which is clearly or distinctly more appropriate. The Court exercises a broad adjudicative role and can take into account any practical factor which, in the circumstances of the case in question, has a bearing on which jurisdiction may be more appropriate. However, the sort of factors which will most normally come into play are those of convenience, expense, applicable law and location of the parties. Most of the other points made are encompassed within those general observations. The final point made is that the fact that a claimant may be deprived of “a legitimate personal or juridical advantage” is not in itself sufficient to prevent a stay being granted provided that substantial justice would be done in the available alternative forum. This point may be seen as an example of the sort of matter which should not be regarded as a practical factor influencing whether the first general principle is met or as supporting the view that such a point is not a sufficient factor to establish the second general principle unless, of course, there was a real risk that justice would not be done in the alternative forum.
7.13 Finally, there is the question of cases, of which this is clearly one, where the applicant is but one defendant and where a stay being granted on the proceedings insofar as they relate to that applicant will necessarily lead to the case which the plaintiff wishes to bring being fragmented. It may be possible to look at fragmentation as being one of the practical factors which might make it less appropriate to stay the proceedings in favour of the alternative forum or, at a minimum, may allow the plaintiff to establish that that alternative forum is not clearly or distinctly more appropriate. It might also be possible that a fragmentation of the case might give rise to the risk of injustice which would allow a court properly to retain jurisdiction even though the alternative forum might, so far as determining the case made against the defendant who sought the stay was concerned, be considered to be clearly more appropriate. Whichever of those approaches may be appropriate in a particular case there can be little doubt but that fragmentation can be an important factor depending on all of the circumstances of the case in question.
7.14 The weight to be attached to fragmentation must, of course, have regard to the extent to which the case against the defendant who seeks the stay is distinct from the case as against all other defendants. It is possible to envisage proceedings in which claims are brought against multiple defendants which, although connected, are relatively distinct. There might be some inconvenience in having to run two cases rather than one but, if all of the other factors relevant to the case against one of the defendants pointed to another jurisdiction being manifestly more appropriate, fragmentation might not loom very large.
7.15 On the other hand, a stay on the case against a defendant where the claim against that defendant was inextricably wound up with claims against other defendants might give rise to significant problems under both principles. It would make it significantly more difficult and expensive for the plaintiff to have to attempt to prove the case in two different jurisdictions. That might well involve having to prove aspects of the case twice with the obvious risk of inconsistent decisions. That latter factor might in itself be regarded as putting justice at risk in a way which would warrant declining a stay even though the alternative forum, looked at from the narrow perspective of the case as against the applicant defendant, might have considerable advantages.
7.16 It also seems to me that the standard by reference to which the alternate forum needs to be shown to be preferable identified in the passage cited from Dicey, Morris & Collins is also consistent with the Irish case law. For example, in Analog Devices BV v Zurich Insurance Company [2002] IESC 1, Fennelly J. at para. 52, made reference to the indication of Lord Goff in Spiliada that the alternative jurisdiction must be “clearly more appropriate”. In McCarthy v. Pillay, Hederman J. suggested that the alternative jurisdiction must be “distinctly more appropriate”.
7.17 In the light of that general approach it is necessary to apply same to the circumstances of this case.
8. Application to the facts of this Case
8.1 It seems to me that the question of fragmentation addressed in the last part of the previous section of this judgment represents a particularly important part of the analysis which must be conducted in the circumstances of this case. This is not a situation where there are two sets of proceedings or potential proceedings in alternative jurisdictions which raise the same, or very closely related, issues. Rather this is a case where, on any view, the issues raised in the Indian proceedings are but a small subset of the overall issues which arise in these Irish proceedings.
8.2 Counsel for IBRC sought to emphasise what was said to be the narrow nature of the Indian proceedings. In that context attention was drawn to the fact that the core substantive permanent reliefs claimed in the Indian proceedings seek, in substance, a reversal of the relevant share transaction. On the other hand it is said that the Irish proceedings, even insofar as they relate to the relevant Indian transactions, seek to place those transactions in the context of a broad conspiracy or plan to place assets beyond control rather than seek to articulate a claim based solely on a contention that there has been a sale at an undervalue. Attention is also drawn to the wider range of personnel who are identified in these proceedings as having an involvement.
8.3 In addition it will be necessary to return in any event to the fact that the Indian aspect of these Irish proceedings forms only one part of the allegations of wrongdoing involving a broad multi-jurisdictional attempt to place assets beyond the reach of IBRC and those acting on its behalf. But even focusing on the Indian aspect of the case, IBRC argues that the Indian proceedings are significantly narrower than even that aspect of the Irish proceedings which relate to the Indian transactions. There can be little doubt but that this is true at a technical level. However, I am not so convinced that it is quite as true in substance as was contended for. If the relevant shareholding had been transferred at full market value then it seems difficult to see how the Indian proceedings could succeed but also, importantly, it might be difficult to establish that the Indian transactions in themselves amounted to part of the contended broader conspiracy or plan for the overall assets available to the companies which ultimately came under the control of Mr. Baecklund would not have been in any way diminished by a share transfer at full value or at least that would not be the case without other significant factors coming into play. It seems clear, therefore, that an assessment of the value of the relevant shareholding in comparison with the consideration which passed for that shareholding will form a very significant part of the litigation in both jurisdictions for it is at the core of the express pleas made in the Indian proceedings but also is likely to form an essential part of the assertion that the Indian transactions form part of the general plan to place assets outside of reach which are at the heart of the Irish proceedings.
8.4 It seems to me, therefore, that there is quite a significant connection between the issues which arise in both proceedings. If this application involved, therefore, a consideration of whether it was appropriate to stay Irish proceedings which only involved an allegation concerning the Indian share transactions, I consider that Mecon might have a strong case. That might be so even if the Irish proceedings involved a broader range of allegations as to those who might be said to have been involved in planning the Indian transactions. The similarities between the two cases would be significant. There would clearly be a close connection with India not least because of the fact that the underlying value of the shares said to have been transferred at an undervalue seems to be derived from Indian real property. The applicable law would be Indian. In addition the fact that those seeking to protect the interests of IBRC chose first to commence the Indian proceedings would be a material factor. However, these Irish proceedings are not simply a somewhat expanded version of the Indian proceedings.
8.5 In that context I fully agree with the comment which is to be found in the passage from Dicey, Morris & Collins already cited which notes that, in a case to which it may be relevant, an overall adjudication on which may be the more natural or appropriate forum requires the Court to consider “whether the claim is part of a larger overall dispute which would be damaged by being fragmented”.
8.6 As noted earlier the extent to which weight might properly attach to that factor will be very dependent on all of the circumstances of the respective claims being the narrower claim which might be hived off to another jurisdiction (by having a relevant portion of the claim stayed) and also the wider claim which the plaintiff had sought to bring. While the fact that fragmentation can be important does need to be emphasised, I would not elevate it to a principle which has any greater application than the circumstances of the individual cases might warrant. However, it seems to me that it is a very important factor in the circumstances of these cases. Without in any way commenting on the general merits of IBRC’s claim in these proceedings, it is clear that the claim involves a broad allegation of concerted action across a range of jurisdictions and involving persons and entities having their residence or seat in many different countries. It is difficult to avoid the conclusion that part of the argument which IBRC might, reasonably, wish to make in this case is to seek to draw inferences from the actions taken across a range of countries as to the overall intent. It seems to me to follow that this is exactly the kind of case which would be significantly impaired by fragmentation.
8.7 The aspect of this Irish case which relates to the Indian transactions is but a part, but nonetheless an integral part, of the overall claim. It seems clear that Ireland is the natural forum for the broad claim. It also seems clear that there are strong reasons why each of the elements of the broad claim should be maintained in a single set of proceedings if at all possible. The fact that there might be elements of the claim which could, in theory, be separated out and where there might be an argument that another jurisdiction could more conveniently or appropriately deal with the narrow element concerned, does not take away from the fact that to do so would be to fragment a claim which most naturally should be considered as a single set of claims.
8.8 It seems to me, therefore, that Ireland is the natural or convenient forum for each of the claims brought in these proceedings. However, there is at least a case for the proposition that India would be a natural forum for the narrow issues which arise in the Indian proceedings and it is only because those same issues form a natural and essential integral part of these Irish proceedings that a different conclusion might be reached. I am, therefore, satisfied that it would be appropriate to give consideration to the current and likely future status of those Indian proceedings as part of the overall balance.
8.9 In other words it would, in my view, be inappropriate unnecessarily to expose Mecon to two sets of proceedings which, for the reasons which I have already sought to analyse, at least involve a significant overlap. Avoiding parties being exposed unnecessarily to the same litigation in two jurisdictions is part of the underlying rationale for the forum non conveniens doctrine in the first place. It seems to me to follow that, even where a court may be satisfied that its own jurisdiction is the appropriate forum in all the circumstances, a court retains jurisdiction, even if refusing any stay, to insist on measures being put in place to at least minimise the risk of a relevant defendant being unfairly and unnecessarily exposed to meeting the same or substantially the same claim in two different jurisdictions.
8.10 Put another way, a plaintiff which chose, for no good reason, to pursue the same claim or claims which significantly overlapped in two different jurisdictions could not be expected to retain the sympathy of the Court on a stay application. If, at the same time as asserting that Ireland was the natural forum for the proceedings, the relevant plaintiff maintained the right to pursue proceedings which significantly overlapped in another jurisdiction, an Irish court would be required to treat the relevant plaintiff’s assertion concerning natural forum with a suitable degree of scepticism. In that context it is necessary to look at the status of the Indian proceedings for the purposes of considering whether there is any reasonable basis for the pursuit of the claims put forward in those proceedings in India while at the same time maintaining these proceedings which at least include, as a material part, similar claims.
8.11 This case is, of course, unusual in that the forum in whose favour Mecon seeks that the Irish courts should decline jurisdiction, is a jurisdiction in which IBRC and those associated with it have already themselves chosen to maintain proceedings. This is not a case where Mecon says that IBRC should bring these proceedings in India. Rather it is a case where Mecon says that IBRC, having already brought proceedings in India, and having brought those first in time, should litigate the matter in India.
8.12 It is easy to see why it might have been felt necessary by IBRC and those associated with it to commence proceedings in India for the purposes of obtaining the form of interlocutory orders which were considered necessary to protect the assets concerned. It is possible that it would not have been permissible in Indian procedural law to commence such proceedings without making a general claim to some form of permanent relief. It is not clear as to whether the interim injunction obtained can be maintained without progressing those Indian proceedings further. For those, and other, reasons I do not consider that this Court has sufficient information to form a final view on precisely whether it would be possible for the plaintiffs in the Indian proceedings to take measures to ensure that those proceedings do not force Mecon to face at trial closely connected allegations in two different jurisdictions in circumstances where it seems likely that there will be at least a significant overlap of evidence and an attendant risk of inconsistent determinations.
8.13 But the overall principle seems to me to be clear. It is not just that IBRC actively pursues two closely connected claims against Mecon in two differing jurisdictions. Much of the evidence which it would seem likely will be required in the Indian proceedings will also have to be presented in the Irish proceedings. That remains so even though, as IBRC assert, there may be additional evidence relevant to the wider claims maintained in these Irish proceedings which may not, necessarily be relevant in the context of the Indian proceedings. In my view it is inappropriate that IBRC, except to the minimum extent necessary to protect its own legitimate interests, actively maintains both of these proceedings in two differing jurisdictions. On the basis that IBRC wishes to proceed with what I might loosely call the Indian aspect of these Irish proceedings (at least insofar as same involves Mecon) then it seems to me that IBRC should take all steps which are reasonably within its power to endeavour to ensure that the Mecon is not exposed to having to meet at a full trial the issues which would arise in the Indian proceedings but which will also form part of the case which Mecon will have to meet in these Irish proceedings. If it were to become clear that IBRC were unwilling to take such steps as might be within its power to minimise that risk then that fact of itself might very well legitimately alter the overall assessment as to whether India was a more appropriate forum for the claims as against Mecon.
8.14 However, there was no evidence before this Court concerning appropriate aspects of Indian procedural law and in particular the extent to which it might be possible, under that law, to delay or defer the Indian proceedings until the equivalent issues had been decided in Ireland. In particular it was not clear as to the extent to which any such delay or deferral could be achieved without impairing the interim injunctions which have been secured for the purposes of protecting the assets which are at the heart of both proceedings. Therefore, it is not possible to say with any degree of confidence just what IBRC and the plaintiffs in the Indian proceedings could reasonably be expected to do which would, at the same time, not impair their interlocutory position and such security as they may have thereby secured while at the same time preventing, or at least minimising, the risk of the Indian proceedings coming to trial.
8.15 In those circumstances I would propose that the appeal be dismissed and the refusal of a stay on that aspect of these proceedings relating to Mecon be affirmed. However, I would do so expressly on the basis that it should be open to Mecon to renew the relevant aspect of this application in the event that it can be demonstrated that IBRC, together with the other plaintiffs in each of the proceedings, have not taken all reasonable steps which meet both the requirement of not risking any security which those plaintiffs have obtained in India but at the same time not exposing Mecon to any greater risk than may be necessary of having to meet the substance of similar claims in both jurisdictions.
9 Conclusions
9.1 For the reasons set out in this judgment I would, therefore, dismiss that aspect of Mecon’s appeal which suggests that leave necessary to give notice of these proceedings outside the jurisdiction should not have been given in this case. The trial judge applied the correct test and there was a sufficient basis for his conclusions.
9.2 As to the claim for a stay on these proceedings against Mecon, under the doctrines of forum non conveniens and lis pendens, I am not currently satisfied that such a stay should be granted. I would, therefore, also uphold the decision of the High Court in that regard and dismiss the appeal. However, for the reasons set out in the preceding section of this judgment, that view is conditional on IBRC and its associates taking all reasonable steps which meet both the requirement of not risking any security which has been obtained by interim injunction in India but at the same time not exposing Mecon to any greater risk than may be necessary of having to meet the substance of similar claims in both jurisdictions. In the event that it should become clear that IBRC and its associates had not taken all such reasonable steps it would, in my view, be open to Mecon to renew the stay application in the High Court and to expect that any such reopening would be successful.
9.3 Also, given that I have, on the basis of the current state of play, formed the view that it would be inappropriate to stay these proceedings, it does not appear to me that the issues which were raised as to the applicability or otherwise of the Brussels Regulation require determination. In the event that the question of a stay were to arise again by virtue of what might be said to be an unreasonable failure on the part of IBRC and its associates to take the type of steps just identified then it might well be necessary to readdress those issues.
