Three recent decisions of the Irish courts provide helpful guidance with regard to the rules governing jurisdiction and “service out” for proceedings involving co-defendants located across multiple jurisdictions:
- Power v Telia Company AB & Ors [2025] IESC 55 (Supreme Court);
- Trafalgar Developments Limited & Ors v Mazepin & Ors [2025] IECA 280 (Court of Appeal); and
- Delany v SAS Société d’Exploitation et de Détention Hôtelière Vista & Ors [2026] IEHC 243 (High Court).
The decisions address the rules on leave for serving out of the jurisdiction in proceedings involving (i) mixed EU / Lugano and non-EU / Lugano defendants under Order 11A, rule 4(1) of the Rules of the Superior Courts (the “RSC”), (ii) the “anchor defendant” gateway under Order 11, rule 1(h), and (iii) the court’s discretion to decline to assume jurisdiction on forum conveniens grounds.
Background
The default position in respect of jurisdiction is that a defendant should ordinarily be sued in the jurisdiction in which they are domiciled. “Leave to serve out” is the court’s permission to formally serve proceedings on a defendant located outside Ireland and outside EU / Lugano states. This process is governed by Order 11, which determines when the Irish courts can exercise extraterritorial jurisdiction in cases where leave is required. However, the procedure varies significantly depending on where the defendant lives and the nature of the case.
Power v Telia clarified the rules on leave for serving out of the jurisdiction in proceedings involving mixed EU / Lugano and non-EU / Lugano defendants. (It also separately considered whether “special circumstances” pertained such as would justify an order extending or renewing a summons which had expired.)
Trafalgar concerned the threshold jurisdictional issue of whether the Irish court had jurisdiction to hear claims against foreign defendants based on alleged conspiracy and fraudulent activities, given their lack of connection to Ireland. For non-EU defendants, the question is whether the proceedings were “properly brought” against an Irish “anchor” defendant. For EU defendants, the question is whether the proceedings have a sufficiently “close connection” with proceedings brought against an Irish “anchor” defendant.
Delany relied heavily on Trafalgar in its framing of the issue for determination, namely: there are two elements to the court’s function under Order 11. The first is to determine whether the court is entitled to assume jurisdiction and the second is to determine whether, even if it is entitled to do so, it should do so. This means that even if the court is satisfied the jurisdictional gateway has been met, the court retains a discretion to decline to permit service out.
These cases highlight the complex interaction between EU jurisdiction and service instruments (Brussels I Recast, the EC and EU Service Regulation) and international treaties (the Lugano Convention, the Hague Service Convention) with private international (common) law and domestic rules in Orders 11[1], 11A[2], 11D[3] and 11E[4] of the RSC.
Proceedings involving both EU / Lugano and non-EU / Lugano co-defendants – Supreme Court decision in Power v Telia
The decision of the Supreme Court in Power v Telia overturned the Court of Appeal’s interpretation of when leave to serve out of the jurisdiction is required under Order 11A, rule 4(1) of the RSC. This case involved defendants in Tajikistan, Sweden and Switzerland.
Order 11A, rule 4(1) provides:
“Where two or more defendants are parties to proceedings to which the provisions of this Order apply, but not every such co-defendant is domiciled in:
(i) a Member State of the European Union, or
(ii) a Contracting State of the Lugano Convention,
for the purposes of Regulation No. 1215/2012, the Lugano Convention or the 1998 Act, then the provisions of Order 11 requiring leave to serve out of the jurisdiction shall apply to each and every such co-defendant.” [Emphasis added]
The Court of Appeal had found that the phrase “each and every such co-defendant” referred to all defendants in the proceedings, regardless of where they were domiciled, such that the common law requirement for leave to serve out of the jurisdiction was required, even in relation to defendants domiciled within an EU Member State or a Lugano Convention contracting state.
The Supreme Court, however, disagreed, and held that this requirement only applies to defendants who are not domiciled in an EU Member State or a contracting state to the Lugano Convention. The Supreme Court found that the widespread view among practitioners that Order 11A, rule 4(1) requires leave to serve all defendants out of the jurisdiction when co-defendants are from different jurisdictions is a misconception and leave is only required where they are not domiciled in an EU Member State or Lugano Convention contracting state because:
- the ordinary meaning of “each and every such co-defendant” in Order 11A, rule 4(1) relates to non-EU / Lugano defendants;
- the context of Order 11A as implementing the Brussels Regulation and Lugano Convention supports that narrower interpretation;
- this decision is necessary to reach an interpretation that is in conformity with EU law; and
- there is no rationale for applying the leave requirements for non EU / Lugano defendants to an EU / Lugano defendant merely because they are sued together with non-EU / Lugano defendants.
The Supreme Court also clarified what constitutes “special circumstances” such as would justify an order renewing a summons which had expired, under Order 8, rule 1(4) RSC. Order 8, rule 1(4) provides:
“(4) The Court on an application under sub-rule (3) may order a renewal of the original or concurrent summons for three months from the date of such renewal inclusive where satisfied that there are special circumstances which justify an extension, such circumstances to be stated in the order.” [Emphasis added]
The Supreme Court clarified that this requires an assessment of whether the circumstances, including the reasons for the delay in serving the summons, justify an extension or renewal in the interests of justice. It found that while inadvertence or inattention by legal advisors would rarely qualify, the combination of factors present in this case (including the widespread legal misconception about Order 11A, rule 4(1)) could constitute “special circumstances”. The Supreme Court also took into account whether any prejudice would be suffered by the defendant as a result of the renewal.
Two days after the Supreme Court judgment in Power v Telia, the Court of Appeal delivered its judgment in Trafalgar.
Jurisdiction based on an Irish anchor defendant – Court of Appeal decision in Trafalgar
In this case, the Court of Appeal considered:
- the issue of service out of the jurisdiction under Order 11 rule 1 (h) RSC on Russian defendants (based on the fact that they were “necessary or proper parties” to an action properly brought against an Irish “anchor” defendant), and
- the issue of service out of the jurisdiction on a Cypriot defendant under Article 8(1) of the Brussels Recast Regulation (based on a “close connection” with the claim against the Irish “anchor” defendant and a risk of irreconcilable judgments).[5]
The substantive proceedings centred on an alleged corporate “raider attack” scheme, whereby the plaintiffs (holding a 70% share in a major Russian company, Togliattiazot) claimed a group of defendants conspired to force the sale of their shares at a gross undervalue. Leave had been granted by the High Court to serve the Russian defendants out of the jurisdiction on the basis that each of those defendants were a “necessary or proper party” to the action “properly brought” against an Irish defendant (as required by Order 11, rule 1(h) RSC[6]). An application by the Russian defendants to set aside that decision was refused in the High Court, with the matter subsequently coming before the Court of Appeal.
The key issue to be addressed by the Court of Appeal was whether the plaintiffs had established that Ireland is the appropriate forum for the trial of the claim against the Russian defendants, such that the Irish courts could accept jurisdiction over those defendants in circumstances where none of them (nor any of the plaintiffs) had any nexus with Ireland.
Separately, the Court of Appeal also considered whether service of the proceedings on a Cypriot defendant based on reliance by the plaintiffs on Article 8(1) of the Brussels Recast Regulation (which provides that a person domiciled in an EU Member State can be sued where a co-defendant is domiciled provided there is a sufficiently close connection between the claims such that determining them together avoids the risk of irreconcilable judgments resulting from separate proceedings) was appropriate.
The Court of Appeal allowed the appeal and set aside service on all the Russian defendants, as well as the Cypriot defendant. In its lengthy judgment, the Court of Appeal gave detailed consideration to various Irish, English and, where relevant, EU case law in this area and ultimately found that:
- Ireland was not the proper forum for trial of the claims against the Russian defendants;
- Russia was the appropriate forum for those claims based on all material connecting factors (including the parties’ locations, the events giving rise to the claims, witness availability, governing law and documentary evidence);
- the two necessary elements to the jurisdictional gateway in Order 11, rule 1(h) (namely that the proceedings had been “properly brought” against the Irish defendant and that the Russian defendants were a “necessary or proper party” to those proceedings) were not found to have been satisfied in this case; and
- in relation to Article 8(1) of the Brussels Recast Regulation, the claims against the Irish and Cypriot defendants were not considered to be sufficiently “closely connected” such that there would be a risk of irreconcilable judgments if they were determined separately.
The fact that there was an Irish “anchor” defendant in the proceedings was found to be a “mere device” to attempt to establish jurisdiction over the other defendants who were all domiciled elsewhere. The Court of Appeal observed that the sole connection with Ireland was an Irish registered defendant company, which itself had never traded in Ireland (or indeed anywhere) and did not have any personnel or assets in this, or any other, jurisdiction.
Accordingly, service on both the Russian and Cypriot defendants was set aside.
Court refuses to exercise discretion to assume jurisdiction over foreign defendants – High Court decision in Delany
Delany was a case involving cross-border defamation and conspiracy proceedings against foreign hotel operators and involved interlocking applications arising from two sets of plenary proceedings.
Delany makes it clear that (a) the plaintiff has the burden of proof in establishing the case is an appropriate one for an order permitting service out of the jurisdiction and the plaintiff retains that burden where the defendant applies to set aside the order; and (b) the standard of proof on this jurisdictional gateway (that a case is one in which the court may assume jurisdiction) is that of a “good arguable case”.
The judgment in Trafalgar issued before judgment issued in this case, and the parties were invited to make supplemental written and oral submissions to the court in light of that judgment. The court treated Order 11 as a combined regime of (i) entitlement to assume jurisdiction via a gateway and (ii) a discretion whether to do so. This framing of the issue drew heavily on Trafalgar and means that, even if the jurisdictional gateway is met, the court retains a discretion to refuse to exercise what is an “exorbitant” jurisdiction on forum conveniens grounds where the Irish connection is peripheral and the dispute’s centre of gravity lies elsewhere[7].
In one set of proceedings (the Maybourne proceedings), even though the court held there was a “good arguable case” that a defamatory publication occurred in Ireland (which sufficed for Order 11 Rule 1 (f)), the court nevertheless set aside the order permitting service out because the plaintiff failed to establish Ireland as the forum conveniens; the “centre of gravity” was found to lie in England and Wales.
In the other proceedings (the SEDH proceedings), the plaintiff failed to establish that the “harmful event” occurred in Ireland under Article 7(2) of Brussels Recast because there was no evidence of publication or republication in Ireland. In respect of the third-named defendant (domiciled in Qatar), the court additionally found that the plaintiff had failed to obtain leave to serve out before issuing the summons, in breach of Order 11, rule 6, and declined to exercise its discretion to excuse that non-compliance. In any event, the court held Ireland was forum non conveniens for that defendant, with France being the natural forum.
Key takeaways
Taken together, these three decisions provide important practical guidance for parties engaged in multi-party, cross-border litigation before the Irish courts. The key principles established are:
- Order 11A, rule 4(1) applies only to non-EU / Lugano defendants: the leave requirement is not triggered in respect of co-defendants who are domiciled in EU Member States or Lugano states simply because they happen to be sued alongside non-EU / Lugano defendants (Power v Telia).
- The “anchor defendant” gateway under Order 11, rule 1(h) will not be satisfied where the Irish defendant is a “mere device“: where proceedings are not “properly brought” against an Irish anchor defendant, service out may be set aside entirely (Trafalgar).
- Satisfying a jurisdictional gateway may not be sufficient on its own: even where a gateway under Order 11 is met, the court retains a discretion to decline to permit service out where Ireland is not “clearly or distinctly” the appropriate forum (Delany)[8].
These cases underline the importance of undertaking a comprehensive assessment of applicable service requirements, available jurisdictional gateways, and forum conveniens considerations at the outset of multi-party, cross-border litigation involving Ireland.
Contact us
Should you require further information about the issues discussed in this article, please contact Disputes and Investigations Group partners, Julie Murphy-O’Connor and April McClements, or your usual Matheson contact.
Footnotes
[1] Applies where no EU jurisdiction instrument (Brussels / Lugano) governs; generally requires leave to issue and serve out and leave involves “gateway” grounds (Order 11, rule 1, as substituted by S.I. No. 362/2024, effective 31 July 2024).
[2] Implements Brussels I Recast and the Lugano Convention. Where those instruments apply, proceedings can often be served without leave, subject to the specific terms of the Order (eg, rule 2). Rule 4(1) addresses the position in “mixed” actions (some Brussels / Lugano defendants, some not).
[3] Reflects the EU Service Regulation (Regulation (EU) 2020/1784). Order 11D was updated by S.I. No. 231/2026 (effective 19 June 2026) to align the RSC with the Regulation, which governs the procedural mechanics of serving documents between EU Member States. S.I. No. 231/2026 also designates the Combined Court Office (Castlebar) as Ireland’s transmitting agency; foreign designated entities act as “receiving agencies”.
[4] Implements the Hague Service Convention for non‑EU signatory states (e.g. Switzerland). Requires requests for service abroad to be lodged with the Master of the High Court as the Irish Central Authority and the Master certifies compliance and transmits to the foreign Central Authority.
[5] The basic rule in the Recast Brussels Regulation is that persons (including companies) domiciled in a Member State must be sued in the courts of that Member State: Article 4(1). There are, however, a number of qualifications to that default rule. Article 8(1) contains one such qualification. It provides that a person domiciled in a Member State may also be sued “where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”. Here the plaintiffs relied on Article 8(1) in order to issue and serve proceedings on Holding in Cyprus, on the basis of an asserted close connection between the claims against Holding and the claims made against Eurotoaz.
[6] Order 11(1)(h) RSC provides: “Save as otherwise provided for in Orders 11A, 11B, 11C, 11D and 11E, service out of the jurisdiction of an originating summons or notice of an originating summons may be allowed by the Court whenever:… (h) any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction”.
[7] The analysis in Delany was conducted under the previous Order 11, rule 2, which required the court to have regard to the “comparative cost and convenience” of proceeding in Ireland as opposed to the defendant’s place of residence. The new rule 2, substituted by S.I. No. 362/2024 (effective 31 July 2024), replaces that test with a broader requirement to have regard to generally recognised principles of international law and prima facie grounds of whether the applicant has established a good cause of action.
[8] Note: the “clearly or distinctly” standard applied in Delany derived from the previous Order 11, rule 2.
