Supreme Court makes third preliminary reference to the CJEU in 2025
Arne Vigeland -v- Zurich Insurance Public Limited Company[1]
On 17 November 2025, Hogan J delivered judgment in relation to appeal proceedings concerning the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Lugano Convention”). The Supreme Court stayed the proceedings following the court’s unanimous decision to make a preliminary reference to the CJEU regarding the interpretation and application of Article 22(5) of the Lugano Convention. This marks the third occasion that the Supreme Court has exercised its jurisdiction under Article 267(3) TFEU this year.
Background to the Appeal
The proceedings arise from an attempt by Zurich to enforce a costs order in Norway obtained against SJI Equities Ltd, an Irish company, for which it subsequently sought to hold Mr Vigeland personally liable. After Zurich secured a protective order over Mr Vigeland’s Norwegian assets in February 2023, he initiated proceedings against Zurich in Ireland seeking damages for tortious interference and a negative declaration regarding his personal liability.
The issue of jurisdiction centres on whether such proceedings are “concerned with the enforcement of judgments” within the meaning of Article 22(5), which, if applicable, would confer exclusive jurisdiction to the Norwegian courts, or whether Mr Vigeland may rely on Article 2 in pursuing Zurich in Ireland where it is domiciled.
Twomey J in the High Court struck out the proceedings for want of jurisdiction on the basis that they were concerned with enforcement. This decision was affirmed by the Court of Appeal in February 2025, wherein Butler J reasoned that the question of non-party liability for an existing costs order was intrinsically linked to the enforcement of that order, exhibiting the requisite proximity to justify exclusive Norwegian jurisdiction.
Supreme Court Proceedings
Counsel for Mr Vigeland argued that Article 22(5) is an exception which must be narrowly construed. It was submitted that the Irish proceedings are not concerned with enforcement, which implies physical acts or official measures to execute a judgment, but instead form a separate claim for a negative declaration and damages for alleged tortious interference. Counsel for Zurich contended that the Norwegian proceedings are equivalent to a non-party costs order, and are intrinsically linked to the enforcement of that order. The negative declaration sought in Ireland would frustrate enforcement of the Norwegian judgment, satisfying the “necessary proximity” test.
Decision of the Court
In delivering judgment, Hogan J emphasised that Article 22(5) must be construed strictly as an exception to the general rule of jurisdiction under Article 2(1). He noted that the provision concerns the actual enforcement and execution of judgments, not preliminary or separate tort claims. The Irish proceedings, though arising from the Norwegian costs order, are not concerned with its execution but with a separate tort claim under Norwegian law.
Hogan J, noting the novelty and practical importance of the issue, decided to refer the following question to the CJEU:
“Are proceedings in which a third party is seeking a negative declaration from the courts of the domicile of the claimant (in this instance, Ireland) that he is not liable to the claimant in tort for any loss, damages, costs or expenses incurred by the claimant (as insurer) for a sum equivalent to the costs of the proceedings in Norway in which the court determining those proceedings made an order for costs in favour of the parties insured by the claimant ‘proceedings concerned with the enforcement’ of that judgment within the meaning of Article 22(5) of the Lugano Convention such that the courts of the judgment rendering state (in this instance, Norway) have exclusive jurisdiction in the matter?”
Conclusion
The decision will clarify whether Article 22(5) applies only to direct enforcement measures or extends to ancillary proceedings against third parties. The result of the CJEU’s determination will have material implications for insurers and judgment creditors seeking to recover costs internationally, particularly in cases involving complex corporate structures and asset localisation.
The judgment can be read in full here.
For further information please contact Jerry Burke (Partner) or your usual AMOSS contact.
[1] [2025] IESC 46
