The High Court has refused Sulzer Metco AG’s application to set aside service of Stryker Corporation’s proceedings over an arc coating machine supplied for use at Stryker’s Cork plant. The motion concerned where the claim could be heard; it did not determine whether the machine was defective or whether Sulzer Metco was liable for the alleged losses.
Stryker’s claim arose from an incident on 4 July 2001, when it said the machine exploded and caught fire while being cleaned. Its statement of claim alleged breaches of contract, negligence, breach of duty and statutory duty, and negligent misrepresentation. Those allegations were not decided on this motion.
Sulzer Metco, a Swiss company, argued that its general conditions governed the contract and gave exclusive jurisdiction to the courts of the Swiss canton of Aargau. The conditions had been included with its quotations. Stryker, an Irish company, disputed that the jurisdiction clause had been agreed.
The dispute turned in part on Stryker’s purchase order. It faxed the order and an attachment to Sulzer Metco on 11 November 1999, without its standard conditions. Stryker also posted the documents with those conditions enclosed. The judge found that the posted papers likely arrived within a week but were filed without being brought to the attention of a decision-maker at Sulzer Metco. The supplier began work after receiving the fax.
The judge applied the balance of probabilities to the factual issue of whether the parties had agreed to the exclusive jurisdiction clause. He found that, viewed objectively in the commercial context, Stryker’s sending its own standard conditions was consistent only with rejecting Sulzer Metco’s conditions, including the clause. Sulzer Metco therefore had not proved the required consensus, and Article 17 of the Lugano Convention did not give the Swiss courts exclusive jurisdiction.
The court then considered whether Stryker could sue in Ireland under Article 5(1), which allows a contract claim in the courts for the place where the relevant obligation was to be performed. The contract included work in both Wohlen, Switzerland, and Cork. The judge treated the overall obligation as supplying a machine assembled and commissioned for its intended use in Cork, and concluded that Cork was the place of performance for this purpose.
Sulzer Metco also relied on Stryker’s earlier Swiss debt-collection procedure. The judge found that it had not begun substantive litigation and was precautionary, principally keeping the Swiss limitation period at bay. It did not amount to an acknowledgment that the claim had to be litigated in Switzerland.
The court refused the relief sought in Sulzer Metco’s notice of motion. The underlying claim remained unresolved.