The High Court ordered Generator Source Limited Liability Partnership, trading as Diesel Service and Supply, to serve proceedings again on two overseas defendants after the order served with the papers cited the wrong legal basis for service outside Ireland. It also awarded those defendants the costs of two motions arising from the error.
In a judgment delivered on 21 December 2021, Mr Justice Garrett Simons said the plaintiff’s lawyers had failed to identify the relevant provision in the docket for their 2019 application and had not checked the formal order before it was served. The order referred to paragraphs (e) and (f) of Order 11, rule 1 of the Rules of the Superior Courts. The judge found that leave had been granted under paragraph (h), which allows service abroad where a person outside the jurisdiction is a necessary or proper party to an action properly brought against someone served within it.
The second and third defendants, Tasiast Mauritanie Limited Société Anonyme and Kinross Gold Corporation, were served in September 2020. They entered conditional appearances to contest jurisdiction and service, then applied in January 2021 to discharge the order permitting service abroad. The plaintiff later applied to amend the order to cite paragraph (h). After reviewing the transcript of the original hearing, the defendants said they would not oppose that correction, while reserving their right to contest jurisdiction under paragraph (h).
The dispute before Simons was about costs and the consequences for service. The plaintiff argued that each side should bear its own costs, saying the correct provision appeared in its supporting affidavit and the defendants could have raised the discrepancy before filing their motion. The judge rejected that argument. The affidavit had not been served with the proceedings, and defendants were entitled to rely on the order they received, he said. He found no evidence the plaintiff had alerted them to the error before their motion was issued.
The court amended the order by consent, replacing references to paragraphs (e) and (f) with paragraph (h). It refused the plaintiff’s application to deem the September 2020 service good. The proceedings must instead be properly served with a copy of the amended order. The defendants’ solicitors had agreed to accept service under the amended order, avoiding the need to use Hague Convention channels again.
The court awarded the second and third defendants the costs of both motions, including the costs of the 8 November 2021 hearing. Those costs are to be measured under Part 10 of the Legal Services Regulation Act 2015 if the parties cannot agree. The judgment did not decide the defendants’ underlying jurisdiction challenge; they had reserved that issue.