Simple Guides

Where to issue proceedings?

The Debtor can be sued where the Debtor resides/carries on business or where the original Contract occurred. This can often give a choice to the Creditor in the Border area as to whether he issues proceedings in Ireland or Northern Ireland. For instance, the Contract may have been made in Ireland where the Creditor undertakes his business but the Debtor resides in Northern Ireland and all his assets / income are based in Northern Ireland.

As both Ireland and Northern Ireland, until Brexit is effected, are member states of the European Union, Regulation (EU) No.1215/2012 (Known as “Brussels I Recast”) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters governs the location and nature of proceedings started in the member states of the European Union. Under the Regulations, in the normal course a plaintiff must sue a defendant in the jurisdiction where the defendant resides. There are however certain exceptions to this rule.

Article 5 (1)a (2012 recast; Article 7(1)a) of the Regulation relates to contractual disputes and is one such exception. It provides that when a person domiciled in a member state is sued in matters relating to a contract, he may be sued in the courts for the place of performance of the obligation in question. The place of the performance of the obligation is:

“in the case of the sale of goods, the place in the Member State, where, under the contract, the goods were delivered or should have been delivered,

“in the case of the provision of services, the place in the Member State, where, under the contract, the services were provided or should have been provided”

This generally therefore means that the debtor can be sued by the creditor either where the debtor resides or where the contract was performed. What is important in consideration of where to issue proceedings is whether the debtor is likely to dispute liability and the proofs which will be required by the creditor in obtaining judgment. For instance, if the Creditor chooses to issue proceedings against a debtor in Northern Ireland but where the contract was performed in Ireland, there is every likelihood that the Creditor will run into difficulty in proving his case in Northern Ireland because he will not be able to secure the attendance of witnesses in Northern Ireland where those witnesses refuse to attend from Ireland. There are some limited instances where a Northern Ireland Court can compel a witness from Ireland to attend the Northern Ireland Court but this could not always be guaranteed at the commencement of the Proceedings.

The temptation in the past would have been to issue proceedings in the jurisdiction where the judgment is likely to be enforced. This was because it was more difficult and onerous to enforce a foreign judgment in another jurisdiction as it was necessary to apply to the court in that jurisdiction for recognition of the foreign decree. Such a court application is however no longer necessary in view of the introduction of regulation number 805/2004. The Regulation creates a European Enforcement Order “EEO” for claims which are uncontested by debtors. The EEO can be sought in the Republic of Ireland by way of a simpler application made ex-parte to a judge who issues the EEO which can in turn be enforced in the foreign jurisdiction. This is done by way of an application to the Courts Service Office in Northern Ireland; where it is no longer necessary to make a Court Application.