The High Court has directed that the European Court of Justice be told that an earlier reference in a dispute involving Irish Bank Resolution Corporation Limited is no longer needed, after related proceedings in Cyprus were struck out.
In a judgment delivered on 22 November 2012, Mr Justice Clarke concluded that changed circumstances meant the EU court’s answers would serve no useful purpose in deciding an application by some defendants to dismiss or stay the Irish proceedings under Article 28 of the Brussels Regulation. He directed that a letter be sent to the ECJ explaining that the answers were no longer material and that a copy of his judgment accompany it.
The reference had followed an earlier High Court judgment in September 2011. The defendants known in the judgment as “the Quinns” had sought a declaration that courts in Sweden and Cyprus had jurisdiction over many issues, or alternatively that the Irish case be stayed or dismissed in favour of related proceedings in Cyprus. The court refused the jurisdictional declaration and referred questions to the ECJ concerning the Article 28 application.
The bank argued that the circumstances had changed enough to withdraw the reference. The central change was that the Cyprus proceedings had been struck out, reportedly for non-disclosure in an ex parte application. An appeal against that decision was pending before the Supreme Court of Cyprus. Clarke J did not assess the likely outcome of the appeal and accepted that the proceedings might be reinstated.
He said, however, that the Cyprus case was effectively frozen while the appeal awaited consideration. Even if reinstated, it would take time to progress, and the bank had indicated that it would bring a jurisdictional application in Cyprus before the substantive case could move forward. By contrast, the Irish proceedings had reached the defence stage, with a trial expected before the summer vacation of 2013. The judge considered it overwhelmingly likely that the Irish proceedings would conclude before the Cyprus case could be resolved.
The defendants argued that withdrawing the reference late, with the ECJ hearing relatively imminent, was unfortunate. The judge said the decisive question was whether the reference retained any purpose. He concluded that even if the ECJ answered the referred questions as the defendants proposed, the changed circumstances would still lead him to refuse a stay or dismissal under Article 28.
The judgment withdrew the reference by directing a letter to the ECJ. It did not decide the pending Cyprus appeal or make a final determination of the Article 28 application in the terms of an order dismissing or staying the Irish proceedings.