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1. The insurers then brought a motion claiming an order pursuant to Order 12, Rule 26 of the Rules of the Superior Courts setting aside the service of the proceedings of the defendant on the ground that the insurance policy (if any) upon which the Minister relied was the subject of a clause conferring sole jurisdiction to hear disputes between the parties upon the Tribunal de Commerce, Paris.

2. The document alleged by the Minister to constitute the contract of insurance was a cover note dated 28th October 1991. The insurers claimed that such cover as was provided under that document was subject to general conditions contained in three policies known as the "French policies". These included a provision that the insurers could only be sued before the Tribunal of Commerce of the place of underwriting of the policy, i.e. Paris. It was contended on behalf of the insurers that the jurisdiction of the Irish courts to determine any claim brought on foot of the alleged contract of insurance was excluded by this provision.

3. Replying affidavits were filed on behalf of the Minister by Anthony Van Hagen, a French lawyer, and Padraig Smith, an Irish insurance broker. The motion then came on for hearing in the High Court before Laffoy J.

4. Article 8 of the Convention provides that

5. On behalf of the insurers, it was submitted that the general conditions in the French policies were incorporated in the cover note and that Article 8 of the [*5] Convention did not apply to the insurance allegedly affected, having regard to Article 12(5) of the Convention.

6. Article 12 of the Convention, so far as relevant provides that:-

7. Article 12(A) sets out the risks referred to in Article 12(5) as follows:-

8. On behalf of the insurers, it was submitted that the French policies were policies of marine insurance within the meaning of Article 12(A)(1)(b) and that, to the extent that the policies extended to the storage of goods, that was a [*6] "risk or interest " connected with "loss of or damage to ... goods in transit", within the meaning of Article 12(A)(1)(b).

9. In reply, it was submitted on behalf of the Minister that the terms of the cover note itself and the surrounding circumstances made it clear that the insurance being effected was in respect of the storage of the goods in the plant at Ballaghaderreen. As already noted, the only affidavits before the High Court dealing with the factual background to the dispute were those to which I have already referred.

10. In a reserved judgment delivered on the 6th March 1998, the learned High Court judge concluded that the general conditions in the French policy were incorporated in the cover note. She also held, however, that neither Article 12(A)(1)(b) nor Article 12(A)(4) were applicable to the insurance effected under the cover note and that, accordingly, the Minister was entitled to sue the insurers under Article 8 of the Convention. From that judgment, the insurers have now appealed to this court.

11. After the service of the notice of appeal, a number of further affidavits were filed on behalf of the insurers and the Minister respectively. Initially, on behalf of the insurers, a further affidavit of Camille Hamen was filed, followed [*7] by an affidavit of Jacques Max Lassez, a French lawyer. In response, affidavits were sworn on behalf of the Minister by David Gresty, the Director of DB Agencies SA, who had taken part in the discussions with Mr. Hamen leading to the issuing of the cover note, Ronan O'Flaherty, an Assistant Principal Officer in the Minister's Department who had responsibility at the relevant time for the purchasing of beef into intervention and Hubert Groutel, a French professor of law. Further affidavits in reply were sworn by Mr. Hamen and Mr. Lassez.

12. It is unnecessary at this stage in the hearing of the appeal to consider in detail the contents of these affidavits. It is sufficient to say that there is a conflict of evidence between Mr. Hamen on the one hand and Mr. Gresty on the other hand as to inter alia the nature of the insurance that was intended to be effected by the cover note. They also disclose a conflict of evidence between Mr. Lassez on the one hand and Professor Groutel on the other hand as to whether, under the relevant provisions of French law, the nature of the insurance intended to be effected under the cover note was one that fell within the provisions of Article 12(A)(1)(b) or Article 12(4).

13. Written submissions had been filed on behalf of the parties in accordance with the directions of this court. In addition, however, immediately before the oral hearing of the appeal, a supplementary written submission on behalf of the [*8] insurers was lodged in which the conflicts of evidence disclosed by the affidavits filed subsequent to the lodging of the notice of appeal were set out in detail and it was submitted that the appropriate course of action for this court to take was to remit the matter to the High Court so that the conflicts of fact could be resolved, either by an oral hearing or by the cross-examination of the deponents upon their affidavits.

14. On behalf of the Minister, Ms. Finlay S.C submitted that, this not being an appeal from an "interlocutory judgment or order" within the meaning of Order 58, Rule 8 of the Rules of the Superior Courts, the evidence contained in the seven affidavits sworn and filed subsequent to the hearing in the High Court could be admitted on special grounds only and then only with the special leave of this Court obtained upon application therefor by a motion on notice setting forth the special grounds. (It should be noted in passing that at a stage when the case was in the list in this court for the purpose of a date being fixed for the hearing, no objection was taken by counsel on behalf of the Minister to the filing of additional affidavits and, indeed, as already noted, replying affidavits were in any event filed on his behalf. However, the court on the hearing of the appeal indicated that, if the Minister now wished to argue that this was not evidence which should be admitted without special leave pursuant to Order 58, Rule 8, the court would not treat the Minister as necessarily bound by any [*9] concession apparently made at a stage when the case was in the list for mention only.)

15. In reply, Mr. Shipsey, S.C. on behalf of the insurers submitted that this was an appeal from an interlocutory judgment or order within the meaning of Order 58, Rule 8 and that, accordingly, he was not obliged to seek the special leave of the court for the admission of the further affidavits sworn by Mr. Hamen and Mr. Lassez.

16. Order 58, Rule 8 of the Rules of the Superior Court provides as follows: -

17. It is accepted on behalf of the insurers that the evidence contained in the affidavits filed in the High Court does not relate to matters which occurred after the date of the High Court decision. Accordingly, unless the judgment and/or order of the High Court can be regarded as an interlocutory judgment and/or order as distinct from a final judgment or order, the special leave of the Court will be required for the admission of the affidavits. Before considering the question as to whether the judgment and order of the High Court under appeal in the present case was an interlocutory judgment or order or a final judgment and order, it is relevant to refer to what appears to be the rationale of the relevant provisions of Rule 8.

18. It is clear from the opening words of the Rule that this court has a "full discretionary power" to receive further evidence upon questions of fact. However, save in the case of an interlocutory judgment or order or matters which have occurred after the date of the decision appealed from, the discretion is one which, in its exercise, is subject to certain limitations which have been identified in the relevant authorities.

19. It seems reasonable to suppose that the imposition of those limitations upon the admission of new evidence on the hearing of an appeal in this court reflects a principle of public policy that there should be finality in litigation and that a successful litigant is not to be deprived of his judgment because of the existence of evidence which could have been, but was not, led in the High Court.

20. The only Irish authority on the point to which we were referred was Toal .v. Deignan (No. 2) (1991) ILRM 140. That was a case of alleged medical negligence, in which an appeal was brought by the defendants against a High Court order refusing to dismiss proceedings against the defendants on the grounds that such a length of time had elapsed between the events on which the proceedings were based and the time of the application that it would be unjust for the defendants to be called upon to defend. themselves. In the course of his judgment, Finlay C.J. said: -

21. There does not appear to have been any written judgment giving the reasons for the ruling in question and, accordingly, the passage in the judgment of the learned Chief Justice is of limited assistance in the present case.

22. There are, however, a number of English authorities on the matter. They indicate that, in that jurisdiction, until new rules of court were enacted in recent times, a divergence of view had emerged in the Court of Appeal as to the appropriate criteria for determining whether an order should be treated as interlocutory or final for the purpose of the rules.

23. The sequence of cases begin with Shubrook .v. Tufnell (1882) 9 QBD 621. In that case, an appeal was brought from a judgment of the court below on a Case Stated. In the Court of Appeal, Jessel MR with whom Lindley, L.J. agreed, said that, if the Court of Appeal differed from the court below, final judgment would be entered for the defendant and there would be an end to the [*14] action. He accordingly concluded that it was to be treated as a final order and the appeal placed in the general list rather than set down in the interlocutory list. It is clear from the report that, had the case been decided by the Court of Appeal in favour of the plaintiff, it would have been referred back to the arbitrator who had stated the case. It is, accordingly, important to note that the decision proceeded upon the basis that, in cases where the order appealed from could, depending on the result of the appeal, finally determine the proceedings, even though the order actually made did not, it was not to be regarded as interlocutory in its nature. That approach was described in a more recent decision of White v. Brunton (1984) QB 570 as reflecting the "order approach" to the issue.

24. This was categorised in White v. Brunton as the "application approach".

25. The Court thus, in effect, disapproved of the "application approach" adopted in Salaman v. Warner.

26. The topic was considered again by the English Court of Appeal in Salter Rex & Company .v. Ghosh (1971) 2 QB 597. In that case, the appeal was from an order in the County Court by a judge refusing to order a new trial of proceedings. The issue was as to whether the appeal was out of time, because the order was an interlocutory order. Lord Denning MR, with whom the two other members of the Court agreed, having referred to the conflicting views [*17] expressed in Salaman .v. Warner and Bozson .v. Altrincham Urban District Council said: -

27. While there has, accordingly, been a divergence of approach in England, it will be seen that, in general, the difference of judicial opinion has been as to whether one looks at the order as made or the nature of the application when one is determining whether it is final or interlocutory in its nature. If the second approach is adopted, then one looks to whether the order, if upheld, will finally dispose of the case, whichever way it goes. If so, it is to be treated as final. If, however, the order, if given one way, will finally dispose of the matter [*19] in dispute, but, if given in the other, will allow the action to go on, then it is regarded as not final, but interlocutory.

28. If that represents the state of the law in England and is the law which should be adopted in this jurisdiction, then it is immaterial whether one adopts the "order" approach or the "application approach" in the present case. The order as made was not final in its nature, since, if it is upheld, the action will proceed to finality: hence, on that view, it is properly regarded as an interlocutory order. If the application approach is adopted, the result is the same, since this was not a case in which the decision, whichever way it was given, would, if upheld, finally dispose of the issues in dispute.

29. I, accordingly, reach the conclusion that, whichever of these divergent approaches is adopted, the result is the same: the order in this case was interlocutory in its nature. I have borne in mind that Shubrook v. Tufnell is an authority which appears as a matter of first impression irreconcilable with either the order as made approach or the application approach, since in that case the order as made was interlocutory in its nature. However, that decision is plainly not a satisfactory authority for the proposition contended for on behalf of the Minister in the present case, since the only issue that arose was whether the case should be put in the interlocutory list or the general list: the court [*20] concluded that it should be placed in the general list, since the order of the Court of Appeal might finally dispose of the case.

30. It is, accordingly, unnecessary in this case to come to any conclusion as to whether "the order" approach or the "application" approach is to be preferred, since, on either view, the order under appeal in this case was interlocutory in nature. As the authorities demonstrate, in the absence of any rule defining in detail what are to be "interlocutory orders", the courts usually find themselves having to decide each case in the context of the particular order under consideration. An order, such as the one in the present case, which does no more than reject a preliminary objection as to jurisdiction, cannot be said to be final in its nature and the policy considerations which have led to the courts to impose specific limitations on the admission of additional evidence in this court are wholly absent.

31. I, accordingly, conclude that the judgment and/or order of the High Court in this case was an interlocutory judgment and/or order and that the additional evidence on affidavit may be admitted without the special leave of the Court.

32. The plaintiff in these proceedings claims against the defendants on foot of a contract of insurance said to be evidenced by a cover note dated the 28th October, 1991. The defendant contests the jurisdiction of the courts to hear the matter and submits that by virtue of the cover of a [*2] particular risk by the contract of insurance, if any, the sole jurisdiction to hear the matter is vested in the courts of France.

33. The application to have these proceedings dismissed upon that ground was heard by Laffoy J. on the 6th March, 1998. The sole issue on this appeal is whether or not that order was a final order or an interlocutory order for the purposes of O. 58, r. 8 of the Rules of the Superior Courts, 1986.

34. Since the order of the High Court the parties in the present proceedings have filed additional affidavits. No leave has been sought for such filing. Accordingly, an application for special leave to file such affidavits should have been brought unless the order appealed from was an

35. The tests to determine whether an order is interlocutory or final as applied for the purpose of English Rules of Court dealing with leave to appeal have been referred to as either the "order approach" or "the application approach". In the former, you look to the order made on the application; while in the latter you look to the orders which might have been made on the application. In the former case, if the order disposes of [*4] the proceedings, it is a final order; whereas, in the latter case, if an order might have been made continuing the proceedings, then even though the order disposed of the proceedings, it is an interlocutory order.

36. It is not necessary to refer to all the English cases. They deal with the question whether leave to appeal is needed. In that jurisdiction, it is from an interlocutory order not from a final order. The main authority for the order approach is Bozson v. Altrincham Urban District Council 1903 1 KB 547. That was a case where the trial had been split. The issue as to liability was heard first, the issue as to damages, if it arose, was left over. It was sought to appeal the finding on liability. It was held to be a final order. Lord Alverstone C.J. in agreeing that the order appealed from was a final order said at p. 548:

37. However, the order approach was specifically disapproved by the English Court of Appeal in White v. Brunton 1984 1 Q.B. 570 where Sir John Donaldson said at p. 573:

38. Nevertheless, I am not sure that the order of Laffoy J. would be regarded in England as an interlocutory order. Having disapproved the order approach, Sir John Donaldson then considered an order on a split trial and accepted that it was a final order in respect of which no leave to appeal would be required. His reasoning for so indicating is set out in the following passage on p. 573 as follows:

39. Taking the words "an issue preliminary to a final hearing" as being of the essence of the test, it follows that the two types of application upon which the application approach is founded in that case fall into this category.

40. Interlocutory orders are dealt with specifically by O. 50 of the 1986 Rules. Prima facie therefore the term interlocutory judgment or order [*7] contained in O. 58 would relate to such orders. Nevertheless the list cannot be exhaustive since there are many orders regarded as interlocutory which are not included in O. 50.

41. There are no reported cases dealing with preliminary issues as to jurisdiction. The only case cited to us from our own jurisdiction was Toal v. Duignan in which it was accepted by the Court that an application to dismiss the proceedings against a number of named defendants was an interlocutory one.

42. In my view, the order in the instant case was in its nature final. It was not a final order because it was not a decision on the merits. But it would never have been said to have been interlocutory in nature. In my view, an interlocutory application is one which is purely procedural in nature and an interlocutory order is an order made on foot of an interlocutory application, whereas a final order would normally dispose of [*8] the action of proceedings. The order in the instant case does not readily fall into either category.

43. It is an order which disposes finally, subject to appeal, of a substantive right collateral to the main issue in the proceedings. On the other hand a final order determines the rights of the parties in relation to the subject matter of the proceedings, while an interlocutory order determines the rights of the parties in the context of the proceedings as a whole. In the case of a motion to dismiss for failure to plead a cause of action or for want of prosecution, no rights are being finally determined. The order either determines that there is nothing to be litigated or that the right to have a matter litigated has been forfeited.

44. In the present instance, the right which has been affected by the order is the right of the defendant to object to the jurisdiction of the Court. It is not an order which deals with the merits of the cause of action, but [*9] neither is it an order made in the context of that cause of action. An interlocutory order is an order made on an application which in effect prepares the way for the final hearing which I believe to be the view of the English Court of Appeal in White v. Brunton . The present order has no such effect. It is much more of the nature of a final order than of an interlocutory one.

45. Ultimately, however the question to be answered seems to me to be, is the order of such a nature that further evidence may be adduced on appeal without leave? An interlocutory application deals with the substance of the proceedings but without deciding it. Equally, it does not infringe the principle that there should be finality in litigation. For this reason there can be no objection on either head to further evidence being given on the hearing of the appeal. It may well be a matter to be dealt with by an order for costs.

46. In all the circumstances of this case I consider that the order appealed from is for the purposes of O. 58, r. 8 a final order. I would disallow the appeal.

47. The facts of this matter and the history of the proceedings are comprehensively set out in the judgment of the learned Chief Justice and it is unnecessary to repeat them here.

48. The issue in this case is whether the Order against which the Defendant has brought its appeal is "an interlocutory judgment or order", or on the other hand is "a final judgment or order" within the meaning of Order 58, Rule 8 of the Rules of the Superior Courts.

49. Upon the determination of this issue depends whether either party is entitled to adduce further evidence by way of affidavit without special leave. Although this Court has not heard any argument beyond what has been directed to the issue identified above, it appears that that issue is a significant one in the circumstances of the case. [*2]

50. For the purpose of this issue, it is necessary only to refer to certain aspects of the

51. The general Endorsement of Claim of the Plenary Summons issued on the 23rd

52. December 1993 grounds the Courts jurisdiction to hear the case in the following way:

53. This part of the Endorsement of Claim demonstrates that the proceedings are governed by the 1968 Convention and the 1988 Act, as these instruments are defined in Order 11(a) Rule 1 and Rule 8 of the Rules of the Superior Courts. The whole of Rule 11(a) was incorporated into the Rules by virtue of Statutory Instrument 14/1989, shortly after the passage of the 1988 Act. The parts of the Endorsement of Claim quoted above are pleaded so as to comply with Order 11(a) Rule 2, permitting service of proceedings of the jurisdiction without leave of the Court if, but only if, the summons complies with the following conditions:

54. The same Statutory Instrument referred to above, S.I 14/1989 inserted a new Rule 2 in Order

55. Section 3 of the 1988 Act gives the force of law in the State to certain conventions including

56. It appears that the insertion of the new Order 12 Rule 2 brought about a considerable change in the scheme of the rules in relation to contests as to jurisdiction. Prior to 1989 the rules appear to have envisaged dealing with such matters by the bringing of a motion under Order 12 Rule 26 either to set aside the service or to discharge an Order authorising service. Rule 26 envisages this motion being brought prior to entering an appearance. The practice, however, was to enter a "conditional

57. Wales, but not in our Rules. This course was followed in Kutchera v Buckingham International

58. That is what was done in this case. A "Memorandum of Appearance to context the jurisdiction of the Court" was filed on the 8th November 1994 and its terms are set out in the judgment of the learned Chief Justice. The Plaintiffs Solicitor was notified of it on the same day by being sent a copy. The matter came before the High Court on foot of the Defendant's Notice of Motion of the 20th June 1995 seeking:

59. It was on that issue that the contest in the High Court proceeded and the affidavits filed

60. The foregoing provisions seem to me to distinguish the present appeal from any of the

61. The question of whether particular Orders are interlocutory or final seems to have troubled the Courts in England and Wales for well over a hundred years. Judicial approaches have diverged to the point of inconsistency. In the 1980s, an effort in England to resolve the matter through Rules of Court which attempted a comprehensive definition was dramatically unsuccessful. I agree with the learned Chief Justice that the only Irish authority which has been cited , Toal v Dignan (No. 2) 1991 ILRM 140 , is of limited assistance only for the reasons which he gives.

62. In my view the English decisions are also of strictly limited assistance in the context of

63. Kingdom authority to which I shall refer is only imperfectly so. Over and above this, the English cases manifest perhaps too great an anxiety to evolve a general rule covering all sorts of dissimilar situations, and are too concerned with the result of taking one view or another in any specific case.

64. These views are strikingly confirmed by the remarkably indecisive judgment of Buckley L.J. in one of the cases cited, Hill v Fladgate (1910) 1 Ch 489 . An order had been made dismissing an

65. Commenting on the state of the authorities as they then were he said:

66. Lord Justice Buckley ended his judgment with a plea which has not been heeded and an

67. While it is possible to state the core of the divergence in the English authorities with some clarity it seems to me that both the approaches which they have adopted are open to criticism. This, indeed, was recognised by Denning M.R. in Salter Rex and Company v Gosh (1971) 2 QB 597. Contrasting the "order" approach as propounded by Lord Alverstone in Bozson v Altrincham Urban District Council (1903) 1KB 547 with the "application" approach propounded by Lord Esher in Salaman v Warner (1891) 1 QB 734 where he said:

68. In so expressing himself, Lord Denning was invoking the authority of Justice Oliver Wendell Holmes who famously said that the "life of the law is not logic but experience". But Justice Holmes did not, of course, attempt to put the two into complete antithesis as Lord Denning does. In a later passage in the same judgment, which almost echoes Buckley LJ's perplexity, he said:

69. This is not an approach either commendable to logic or suggestive of any consistency of

70. I think the fundamental flaw in both these approaches lies in the requirement that the order, or

71. There is some support for the view just expressed in yet another English authority, though I do not expressly ground my opinion on it. This is Dale v British Coal Corporation (1992) 1 WLR 965 . There, the Plaintiff had been injured in an accident in a coal mine in 1972 but did not issue his proceedings until 1989 . Under a statutory procedure available in England, he sought a declaration that

72. More relevantly for our purposes, the Court of Appeal eventually treated his

73. This approach seems to me to be sound, quite independently of the surrounding discussion about the conflicting English rules. The Court held that the mode of determination was irrelevant if in fact the issue was finally determined for the purpose of the hearing in question. Its eventual conclusion was that:

74. It is clear that the procedures invoked in Dale's case have no precise counterpart in this

75. It is interesting to note that Dale's case was somewhat critically received because the decision

76. Adrian Zuckerman in the All England Reports Annual Review for 1993. Having quoted the

77. It seems to me that a jurisdiction issue, too, is quite independent of the merits of the cause of

78. Court should focus on whether the jurisdiction issue, and not the general issues in the litigation, have

79. I believe that this conclusion is strongly supported by a consideration, by way of example, of

80. I believe that the approach I have proposed arises naturally from the Article 18 procedure and the amended rules which followed from it, and from the underlying logic of separating the fundamental question of jurisdiction from many other matters which will arise only if jurisdiction is accepted. I am of the view that it is unnecessary to apply either of the tests emerging from the English authorities because the procedure involving the invocation of Article 18 and the service of a motion under Article 12 Rule 26 is sui generis. [*13]

81. I believe that the order of Laffoy J. is a final order on the question of jurisdiction, subject only to appeal. The consequence of this is that further affidavits can be admitted only on special grounds with special leave of this Court to be obtained after an application of the kind envisaged by Order 58 Rule 8.