Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

RESULT: The Court refuses leave to appeal to this Court directly from the High Court.

REASONS GIVEN:

1 The background facts of this case are set out in a judgment of Hogan J. in the High Court dated the 27th of February, 2014, ([2014] I.E.H.C. 88) (“the jurisdiction judgment”) on the first and second named defendants’ application to have service of proceedings on them set aside on grounds that, as Belgian domiciliaries, the High Court did not have jurisdiction to hear and determine the plaintiff’s claim having regard to Regulation 44/2001. The claim against the third named defendant had been compromised.

2 The plaintiff is an Irish citizen who studied at the University of Wales in 2006. In 2008 he returned to Ireland. He sought treatment for obesity and learned of facilities offered by the first named defendant clinic in Belgium through an internet advertised promotion. Having spoken to the second named defendant, he travelled to Belgium and had a gastric bypass procedure carried out at the first named defendant clinic which he contends resulted in severe infection of the bowel and serious illness necessitating admission to the third named defendant hospital.

3 The outcome of the motion was that the High Court held that it had no jurisdiction to hear and determine the plaintiff’s claim in negligence against the first and second named defendants, but did have jurisdiction to hear and determine the plaintiff’s claim for breach of contract against the first named defendant pursuant to the special jurisdiction in consumer matters provided for by Article 15(1)(c)of the Brussels Regulation.

4 This application for leave to appeal relates to a subsequent application in the proceedings in relation to the proper law of the contract. Hogan J. delivered judgment in the High Court on this matter on the 22nd of January, 2015, ([2015] I.E.H.C. 62) (the “applicable law” judgment) in which he held that as the contract had been concluded prior to the 17th of December, 2009, it was governed by the provisions of the Rome Convention on the Law Applicable to Contractual Obligations 1980 (“the Rome Convention”). This Convention has largely been replaced by the provisions of Regulation 593/2008 EC (Rome II) which applies to contracts made after that date. Hogan J. held that Belgium was the place of performance of the obligation which was characteristic of the contract giving rise to a presumption that Belgian law applied. That presumption was not displaced by Article 4(5) since the contract was more closely connected with Belgium than Ireland. The plaintiff could not avail of the provisions of Article 5(2) and (3) of the Convention relating to the law applicable to consumer contracts as the plaintiff could not show that he took all the steps necessary for the conclusion of the contract in Ireland. In any event, the case also fell within the contra-exception contained in Article 5(4) in that the contract was to be performed exclusively in Belgium.

5 The principal focus of the argument in this matter related to Article 5 of the Rome Convention which provided that the choice of law of the parties (or that provided for by default) did not deprive a consumer of “the protection afforded to him by the mandatory rules of the law of the country of in which he has his habitual residence…if in that country the conclusion of the contract was preceded by a specific invitation addressed to him or by advertising, and that he had taken in that country all the steps necessary on his part for the conclusion of the contract”.

6 The plaintiff seeks to appeal to this Court pursuant to Article 34.5.4° of the Constitution in what is known as the “leapfrog” procedure. The Court may grant leave if satisfied there are exceptional circumstances warranting a direct appeal, and a precondition to any such decision is that the Court is satisfied that the standard criteria for appeal from the Court of Appeal are met, i.e. that the decision involves a matter of general public importance or an appeal is otherwise in the interests of justice. This Court has decided on other occasions that the structure of the constitutional amendments implies that the normal route of appeal is to the Court of Appeal even in cases in which it may be anticipated that the point is of sufficient importance that it may in due course be certified for appeal to this Court from the Court of Appeal. Even in such cases, the decision of the Court of Appeal may resolve the issue or may reduce the issues to be heard in this Court, and in any event is likely to clarify matters. However, the Court has also noted that factors such as urgency, speed and cost and/or the fact that the case raises a single issue which it is clear must be determined by the Supreme Court may lead the Court to grant permission for a leapfrog appeal. Another situation may be where there is a single issue of law which is subject to a binding decision of this Court which it is sought to contend should no longer represent the law. In such a case, an appeal to the Court of Appeal may be futile, and it would be appropriate to permit a direct appeal to this Court.

7 Here, the plaintiff relies principally on the fact that in his judgment, Hogan J. noted a possible difference between the provisions of Article 5(2) of the Rome Convention and the provisions of Article 13 of the Brussels Convention. Furthermore, it was suggested that as the appeal raised the issue of the interpretation of the Convention it would require a reference to the Court of Justice of the European Union but it was argued that pursuant to the first protocol of the 1980 Rome Convention, the Supreme Court was the only national court competent to refer such a case.

8 The facts of this case are quite unclear even at this stage. There is also a lack of clarity about the precise claim made and pleaded. Furthermore, there is some confusion over the legal argument. It should be noted that Article 13 of the Brussels Convention to which reference was made is Article 13 of the 1968 Convention and not the Brussels Regulation of 2001 which is applicable in this case. Furthermore, it should be noted that both the Rome Convention of 1980 and the Brussels Regulation of 2001 have been superseded. The Court directed a short oral hearing at which questions were addressed to the representatives of the parties in an attempt to clarify matters for the purposes of this application.

Conclusion

9 It is not necessary to discuss in any detail the legal points raised. In the light of the changes in the applicable law, any possible inconsistency between Article 5(2) of the Rome Convention and Article 13 of the Brussels Convention - and this Court is not to be taken as finding any such inconsistency - would not be of any ongoing relevance outside of this particular case, and may not be of any significance there in the light of the finding made in respect of Article 5(4). In the ordinary course, this is an appeal which would be heard by the Court of Appeal and which would likely benefit from that process. At a minimum, the Court is satisfied that it cannot be said, with a degree of assurance which this Court would require, that any appeal might not be resolved by decision of the Court of Appeal; that if not, any decision of the appeal from the Court of Appeal would necessarily be certified by this Court as meriting an appeal; nor that the issues would be such as to require a reference to the Court of Justice of the European Union, and/or that the Court of Appeal could not make such a reference if necessary. Accordingly, the Court is not satisfied that this is an appropriate case to grant leave to appeal directly to this Court, and the application will be dismissed.

And It is hereby so ordered accordingly.