About this case:

• Citation:
  [2026] IEHC 139
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Nolan

Delivering judgment for the High Court, Mr Justice David Nolan found: “The non-disclosure, as occurred here, was of such a grievous nature, such as would be sufficient for the court to exercise its inherent jurisdiction to set aside the service.”

Background

In August 2017, the plaintiff, a Libyan-registered company, and the defendant, an executive agency of the Government of Libya responsible for providing flights for senior government ministers and officials in Libya, entered into an aircraft leasing agreement for the service and maintenance of a Ukrainian plane in Libya.

The agreement contained the clauses as to jurisdiction and choice of law, which appeared to suggest that both Irish and Libyan law governed the contract and that the Irish High Court and the Libyan judiciary had jurisdiction over disputes.

Through a complex series of arrangements, the plaintiff paid over $1 million on behalf of the defendant, which it alleged to be due and owing.

An application was made for leave to issue proceedings out of the jurisdiction pursuant to Order 11, Rule 11(e)(iii) of the Rules of the Superior Courts (RSC) was made before Mr Justice Cian Ferriter on 19 June 2023, which leave was granted.

Subsequently, the defendant brought an application pursuant to Order 12, Rule 26 RSC to set aside service of the proceedings and to discharge Mr Justice Ferriter’s order.

The High Court

Having regard to the evidence which was before the High Court, Mr Justice Nolan explained that the plaintiff’s solicitor averred that by its terms, the contract was governed by Irish law and the Irish courts therefore had the power to grant leave to issue and serve proceedings on the defendant in Libya.

As to jurisdiction, the plaintiff’s solicitor averred that the defendant required the plaintiff to “irrevocably and unconditionally” submit to the “Libyan judiciary & the jurisdiction of the High Court of Justice in Ireland” and therefore “any dispute in respect of the agreement is, at the insistence of the respondent, to be determined before the High Court of Ireland”.

Mr Justice Nolan noted that this was an important averment where the defendant maintained that it not only did not insist that the matter could be determined before the Irish High Court, but it was never asked.

The judge further highlighted that the real issue in the application now before the court related to additional averments by the plaintiff’s solicitor to the effect that should the leave application have been refused, the applicant would have been without a forum to determine the distribution and therefore it would have been left without a remedy.

Mr Justice Nolan explained that what Mr Justice Ferriter did not know, was that the plaintiff had already issued another set of proceedings in Tripoli five months prior to the application to the High Court, dealing with precisely the same issues.

The court noted: “If the argument which was subsequently made, that the Tripoli proceedings were a ‘sham’, as indeed is the case, it is hard to understand why the plaintiff participated in further hearings thereafter, right up till the 6th of January 2025.”

Mr Justice Nolan considered that the starting point for the application was Order 11 itself, which was amended in 2024 to introduce a new Rule 2 mandating the court to have regard to the generally recognised principles of international law, something which “a court would always have to consider, even before the Rule was amended”.

Turning to the law on service out of the jurisdiction, the court considered the authoritative view as to the exercise to be undertaken as that set out in Analog Devices B.V. v Zurich Insurance Company [2002] IESC 1, in which the Supreme Court stated inter alia that the international comity of the courts has long required “that our courts examine such applications with care and circumspection”.

Mr Justice Nolan emphasised that the case law puts beyond doubt the importance of the contents of the affidavit grounding the application for service out of jurisdiction, and that it is well-settled that the moving party is under an obligation to make full and frank disclosure to the court of all relevant material, even material which is adverse to their own position.

The judge opined that the key issue was whether the omission as to the existence of the Tripoli proceedings was material.

The court observed that there was no particular urgency to the application and that nonetheless, the plaintiff’s solicitor rather the moving party itself, chose to swear the affidavit and took on the duty to ensure that all material facts were before the court.

In this regard, Mr Justice Nolan noted: “It has rightly been conceded by counsel for the plaintiff that the fact that legal proceedings in Tripoli had issued and were being heard, was something which should have been disclosed to the court.”

Applying Bambrick v Cobley [2005] IEHC 43, the court found that there was no doubt as to the materiality of this information. 

The court further considered that the suggestion that the plaintiff would have been without a forum and would be left without a remedy should the leave application have been refused was:

In those circumstances, Mr Justice Nolan determined that the non-disclosure was material and culpable, but found that the court did not have to come to that view where the order could be set aside on foot of an affidavit which was, even if not intentionally, misleading.

However, the court reasoned that the “non-disclosure, as occurred here, was of such a grievous nature, such as would be sufficient for the court to exercise its inherent jurisdiction to set aside the service”.

Finding that it was beyond all reasonable doubt that the had the fact of the Tripoli proceedings been disclosed, Mr Justice Ferriter would have raised fundamental questions. In this regard, the court remarked: “The court must ensure that any applicant is ‘not forum shopping’ or seeking inconsistent remedies or manipulating procedural rules.”

Turning to the contractual choice of law in the event that the court’s conclusions were incorrect, the High Court opined that “there is no doubt — as counsel for the plaintiff observed — that the contract is internally inconsistent. Clause 1 defines the relevant jurisdiction as the Republic of Ireland, yet Clause 2 permits the defendant to nominate another jurisdiction.”

Mr Justice Nolan remarked: “As things stand, the Tripoli court has already seisin of this case and has heard many applications in relation to it. That seems to me to be determinative of the matter.”

The judge concluded: “Ireland could hardly be the natural or logical forum for a dispute between two Libyan entities, about a plane in Ukraine. To refuse the application would allow the plaintiff to forum shop, something which is not permissible pursuant to the requirements of international comity of courts, giving rise to the concerning prospect of two courts in two jurisdictions giving judgment on the same issue.”

Conclusion

Accordingly, the High Court set aside the service of the proceedings.

Libyan Blue Bird For Air Transport Co. LLC v Executive Authority For Special Flights [2026] IEHC 139