A. The Traditional Rules

There are three basic requirements to have a judgment recognized under the Irish common law rules.Footnote ⁷ The judgment must be for a liquidated sum; it must be final and conclusive; and it must be given by a court of competent jurisdiction.Footnote ⁸ There are also a number of defences available for the defendant to resist the recognition and enforcement of a judgment.Footnote ⁹ It is the third of these criteria—the jurisdictional competence of the foreign court—that was under consideration in the Flightlease case, and that is the focus of this note.

The Irish position on the competence of a foreign court for the purposes of recognition and enforcement of foreign judgments is derived from the common law position set out in AV Dicey's seminal work, The Conflict of Laws. Dicey's Rule 36 sets out the orthodox position; as stated in the fourteenth edition, it reads as follows:

Therefore, at common law, a foreign court has jurisdictional competence if, and only if, the defendant had submitted to the jurisdiction, either by appearance or by contract; or if the defendant was present in the foreign jurisdiction when proceedings were instituted. As Briggs puts it, ‘nothing more is required, and nothing less will do.’Footnote ¹¹

Rule 36 had previously been accepted by the Irish High Court as forming the basis for assessing the jurisdictional competence of foreign courts.Footnote ¹² In Flightlease, there was some disagreement about how comprehensive a statement of Irish law this was. The Supreme Court characterized the High Court judgment as indicating that the statement in Dicey represented, of itself, the law of Ireland.Footnote ¹³ The Supreme Court rejected that position, noting that some of Dicey's rules have been rejected as statements of the common law of Ireland, and that nowhere in past cases endorsing Rule 36 was it stated to be a complete, final, or exhaustive statement of the Irish law on the subject.Footnote ¹⁴ Moreover, the Supreme Court had never ruled on the matter. The Supreme Court was, in principle, more willing to consider the position open.Footnote ¹⁵

The traditional common law rules grew out of a rejection of a principle of comity or reciprocity as the basis for recognition and enforcement, and the rise of a doctrine of obligation.Footnote ¹⁶ The theoretical basis for recognition and enforcement is that the court asked to recognize the judgment would see the judgment debtor as obliged to submit to the judgment. The common law only sees such obligation in the instance of submission to the jurisdiction, or where jurisdiction was seized on the basis of territorial presence of the sort that common law courts would themselves have endorsed.Footnote ¹⁷

These rules are dated, parochial, and to some degree, incoherent. They assume a very narrow, territorial notion of jurisdiction assumed by presence and submission, developed at a time when ‘forum non conveniens was not even a glimmer in the eye of the House of Lords.’Footnote ¹⁸ Subsequent developments in jurisdiction mean that it is more likely that English and Irish courts will exercise jurisdiction over a defendant out of the jurisdiction when those courts represent the most appropriate forum,Footnote ¹⁹ and correspondingly decline jurisdiction over someone properly served within the jurisdiction if there is a better forum elsewhere.Footnote ²⁰

Yet, even if the foreign forum is the most appropriate place for the action, the judgment resulting from that action will not be enforced at common law unless the defendant submitted to the jurisdiction of the foreign court, or was served while in that jurisdiction. As Clarkson and Hill argue, ‘there is something fundamentally suspect about a system of rules which refuses to endorse a judgment given by a foreign court which is obviously the most appropriate forum for the trial of the action.’Footnote ²¹ The common law sees no obligation on a person to defend an action in the place that action is clearly most appropriately brought, illustrating the narrowness of this obligation theory.

The opposite injustice also exists for certain defendants served with proceedings on the basis of temporary presence in a foreign country that they are otherwise unconnected to; the judgment would probably be enforced against them, notwithstanding that if the action were brought, mutatis mutandis, in England or Ireland, the matter would likely be stayed under the doctrine of forum non conveniens.Footnote ²² Under these rules, courts can enforce judgments that are granted on the basis of an exorbitant jurisdiction that they would, themselves, decline to exercise.Footnote ²³

The common law rules on jurisdictional competence of foreign courts therefore are both under- and over-inclusive. They fail to recognize and enforce judgments given on the basis of a jurisdiction reasonably taken, where the matter is closely connected to the foreign country, but will enforce judgments given pursuant to exorbitant jurisdictions, so long as those mirror the exorbitance of common law jurisdiction rules of the late nineteenth century. The common law rules are therefore difficult to justify in their current form.Footnote ²⁴

B. The Canadian Innovation

The equilibrium of these somewhat arbitrary common law rules was disturbed by the Canadian courts in two judgments, handed down more than ten years apart. The first of these judgments rejected the orthodoxy of Dicey's rule as applied to internal Canadian rules for the recognition of judgments between provinces. Sometime later, the principles recognized in this case were taken to their logical conclusion, and the recognition and enforcement rules for private international law disputes went the same way as the internal rules. The Canadian rules represent a shift in the theory underlying recognition and enforcement, returning to notions of comity and reciprocity from a theory of obligation, and relaxing the rigid notions of jurisdictional competence of the old rules.

The first of these judgments was De Savoye v Morguard. Footnote ²⁵ The dispute arose in relation to a mortgage over land in Alberta. The mortgagor—though an Alberta resident at the time of the mortgage—later moved to British Columbia, and had no residential or business links with the former province from that time on. When the mortgagor defaulted on the mortgage, it was foreclosed upon, and a judicial sale of the lands resulted. However, the proceeds of the judicial sale were not sufficient to cover the outstanding amount of the mortgage. Having served the mortgagor in British Columbia in accordance with Alberta's rules for service outside of the jurisdiction, the mortgagees obtained from the courts of Alberta a judgment for the outstanding amount. The mortgagor had not appeared in or contested these actions, nor had he, by way of the mortgage agreement, acceded to this jurisdiction. The mortgagees then commenced proceedings in British Columbia to enforce judgments for the outstanding amount against the mortgagor.

The Supreme Court of Canada considered whether or not, in these circumstances, the Alberta judgments should be enforced against the mortgagor in British Columbia. The Canadian rules then prevailing were very similar, if not identical to, the approach outlined in Rule 36 of Dicey.

Delivering the majority judgment, La Forest J noted that the traditional approach was rooted in the territoriality principle prevalent in the late nineteenth century. No longer, he said, could states live in ‘splendid isolation’.Footnote ²⁶ He noted the development of a real and substantial connection test for recognition of certain in rem matters in the United Kingdom.Footnote ²⁷ The realities of the nineteenth century—when defending an action in some far-flung corner of the world would have been a daunting prospect indeed—had been altered by modern communication and travel.Footnote ²⁸ Modern economic realities necessitated an updated notion of comity that would allow for ‘flow of wealth, skills and people’Footnote ²⁹ across boundaries in a fair and orderly manner. The appropriate model for recognition and enforcement, therefore, was a test of ‘real and substantial connection’ between the dispute and the province that claimed jurisdiction, as this would provide protection against claims being taken in patently inappropriate fora. He noted that this approach would respect reciprocity; courts would enforce judgments where jurisdiction was reasonable and would have been taken by the enforcing court had the case arisen.Footnote ³⁰ There was no question but that Alberta was the appropriate forum in this case; ‘[a] more real and substantial connection can scarcely be imagined.’Footnote ³¹

The effect of this judgment was clearly limited to Canada's interprovincial rules.Footnote ³² However, the arguments against the common law rules were logically applicable to the identical rules in private international law. The work begun by Mortguard and it was completed in the international context in 2003 by the Supreme Court judgment in Saldanha v Beals.Footnote ³³ Saldana was a resident of Ontario when he sold a vacant lot in Florida to Beals. There was confusion as to which plot of land had been sold, and Beals began to build on the wrong plot. When the error was discovered, Beals sued, inter alios, Saldanha in the Florida courts. Though Saldanha defended the action initially, he later failed to defend amendments to the action, which under the law of Florida was of like effect to not defending the action at all. Beals therefore received a judgment in the amount of $210,000, with $50,000 in punitive damages. This was combined with a high interest rate, meaning that the sum was over one million Canadian dollars by the time of the Supreme Court appeal. Binnie J, in dissent, called the judgment ‘Kafka-esque’.Footnote ³⁴

Saldanha sought legal advice from an Ontario lawyer, who advised him, based on the traditional common law rules of recognition and enforcement, that this judgment could not be enforced against him in Canada. On foot of this, he decided not to appeal, or apply to have the judgment set aside. Beals sought enforcement of the judgment in Ontario, in reliance on the principles enunciated in Mortguard.

A majority of the Canadian Supreme CourtFootnote ³⁵ held that the judgment should be enforced, applying the logic of Mortguard to private international law. Major J, giving the majority judgment, held that ‘[i]nternational comity and the prevalence of international cross-border transactions and movement call for a modernization of private international law’.Footnote ³⁶ He noted that the considerations in Mortguard—accommodating the flow of wealth, skills and people across borders—applied with equal force to private international law.Footnote ³⁷ Noting that it would be open to the legislature to change this approach by statute, he said that best approach was the real and substantial connection test of Mortguard.Footnote ³⁸ This would allow Canadian courts to show reciprocity internationally, just as Mortguard had on an interprovincial basis.Footnote ³⁹

The real and substantial connection test was made out in this case:

The majority also felt that no defence had been made out by the appellants.Footnote ⁴¹

The only significant doubts about the doctrinal shift were expressed by LeBel J in dissent,Footnote ⁴² who thought that the real and substantial connection test was the correct one, but that it should undergo significant modification in the private international law context to account for the additional hardship of defending foreign proceedings.Footnote ⁴³ He also thought that such radical reformulation of the common law rules required similarly significant reconsideration of the defences available to recognition and enforcement, which the majority had not altered.Footnote ⁴⁴ Broader recognition required broader defences, he felt.

The Canadian approach solves some, but not all,Footnote ⁴⁵ of the problems with the old common law rules. It allows Canadian courts to assess the competence of the foreign court's jurisdiction on basis that was broader than the old rules allowed. There was, for a time, some academic support for this reformulation. Briggs initially welcomed the Mortguard development, calling it ‘rational and wholly welcome’ and thought it was readily transplantable into English law, although he would have preferred a broader analogy to forum non conveniens.Footnote ⁴⁶ His enthusiasm waned somewhat with Saldanha, but he still approved of some measured, court-led change in the area.Footnote ⁴⁷ However, more recently, academic sentiment towards the development has been distinctly negative.

Canadian commentators criticized the development as so ‘rife with ambiguity and uncertainty’Footnote ⁴⁸ that it was ‘poorly suited to be a practical instrument for decision making’Footnote ⁴⁹ for those contemplating the defence of foreign litigation in future. In response to such criticism, the Supreme Court of Canada has recently attempted to give some more specificity to the notion of real and substantial connection.Footnote ⁵⁰ Briggs’ opinion on the Canadian innovation soured; he is now highly critical of the Canadian courts disregard of the obligation theory of recognition, regarding the Canadian court as taking the ‘common law off on a frolic of its own’.Footnote ⁵¹ He suggests that substantial change should be left to parliament, and that it is not clear that the Canadian Supreme Court understood quite how radical its innovation was in abandoning the doctrine of obligation.Footnote ⁵² Clarkson and Hill, commenting on an ‘appropriate forum’ test for enforcement more generally, note the uncertainty that it introduces, and conclude that ‘[t]here is no easy answer to the question whether such uncertainty would be a price worth paying for a more coherent system of rules.’Footnote ⁵³

The Irish courts were called upon to address this difficult issue in the Flightlease case. Little consideration had ever been given to this issue in Ireland.Footnote ⁵⁴ Facing an unenviable choice between reformulation of these rules in the name of modernization and coherence, or retaining them in the name of certainty, they chose the latter.

A. The Factual Background

Re Flightlease came about in a somewhat unusual manner. The action was a section 280 application under the Companies Act, 1963, a provision that allows a liquidator to apply to court to determine any question arising in the winding up of a company. The Irish liquidators of Flightlease, an airplane leasing company, applied to the High Court to ask whether a judgment that might be obtained against Flightlease by Swissair (also in a form of liquidation) in the Swiss courts would be recognized by the courts of Ireland. Flightlease and most of its creditors entered into a wind-down agreement in December 2003. The Swissair action against Flightlease was the only claim not covered by that agreement, and therefore the only matter preventing distribution of assets pursuant to that agreement.

However, judgment in the Swiss proceedings had not been handed down. Unusually, this statutory procedure availed the liquidators in seeking a preliminary ruling on the issue of recognition in the absence of a judgment.Footnote ⁵⁵ It allowed the liquidators to establish this before deciding whether or not to defend the Swiss action, which would not be possible for the average litigant.

Flightlease and Swissair were both subsidiaries of SAirGroup. The claim, commenced in 2006, sought return of certain monies paid to Flightlease by Swissair. It alleged that within the five years prior to the granting of Flightlease's debt restructuring moratorium, a transaction was carried out that had the intention of putting certain creditors at an advantage, or disadvantage, in the debt restructuring process, and that intention was apparent to the other party to the transaction.Footnote ⁵⁶ The High and Supreme Court held that, should a judgment be obtained in this action, it would be an in personam judgment, despite being related to bankruptcy.Footnote ⁵⁷

The matter of what the Irish common law rules of recognition and enforcement for in personam judgments were, and what they ought to be, was crucial to the parties in Flightlease. Swissair argued for the Canadian real and substantial connection test to be adopted. There was no question but that a judgment in the Swiss action would be enforced under such a test, as Switzerland had a very significant connection to the action.Footnote ⁵⁸ It was equally clear that if the traditional rules were to apply, the Swiss judgment would not be enforced against Flightlease in Ireland.Footnote ⁵⁹ Clarke J noted that though ‘doing business’ could constitute presence for the purposes of establishing jurisdiction in Switzerland, at common law this was highly dependent on actual transitions being conducted at time the action was commenced.Footnote ⁶⁰ Because Flightlease was in liquidation, no business was being conducted when the action was commenced, except the matters being handled by the liquidators, who were not based in Switzerland.

B. The High and Supreme Court Rulings

Clarke J heard the Flightlease case in the High Court. Finnegan J delivered the judgment for a five-judge Supreme Court, with three of the other four judges concurring with him. O'Donnell J delivered a separate concurring judgment in the Supreme Court, which will be discussed later. All judges declined to adopt the Canadian approach. I will discuss thematically the arguments of Clarke J in the High Court and Finnegan J for the Supreme Court majority.

First, an argument about consensus in the common law world was made by both the High and Supreme Courts. Clarke J noted that counsel could not point to any authority suggesting that common law courts had generally followed the Mortguard/Saldanha approach. It could not be said, therefore, that there was ‘a broad acceptance in the common law world of a new direction. For the time being Canada appears to be an exception.’Footnote ⁶¹ He later said this showed a lack of ‘real consensus’ on the need for such a change.Footnote ⁶²

Finnegan J clarified that counsel had failed, in their research, to show any authority from other common law jurisdictions either following or rejecting the Mortguard/Saldanha development.Footnote ⁶³ He said that ‘it is particularly important that respect be paid to any consensus that may have emerged from other common law jurisdictions … There is no consensus on this issue and the Canadian approach appears not to have been followed in any other common law jurisdiction.’Footnote ⁶⁴ Relatedly, both judges felt reluctant to follow a development that had drawn critical reaction from academic commentators.Footnote ⁶⁵

Second, Clarke J, expressing broad agreement with a dictum in the case of KD v MC,Footnote ⁶⁶ stated that significant reconsideration of long-established common law rules should be undertaken with great care. He noted that such changes could ‘create significant effects (including retrospective effects) on many parties (and not just the parties before the court)’.Footnote ⁶⁷ He was concerned that people had ordered their affairs based upon a view of what the law was, which he regarded as long settled:Footnote ⁶⁸ ‘persons sued in foreign jurisdictions have made important decisions as to whether to participate in those proceedings on the basis of a view as to whether such judgments would be recognised in Ireland.’Footnote ⁶⁹

Finnegan J was similarly concerned with the uncertainty that would be created if the law were developed in this way.Footnote ⁷⁰ He acknowledged that the common law had to ‘develop to meet changing circumstances’.Footnote ⁷¹ However, he was concerned that radical change would upend choices made based on reasonable views of the law.Footnote ⁷² He wished to avoid uncertainty ‘in an area of law where certainty is of crucial importance’.Footnote ⁷³ He also noted that reform of the defences in this area would need to be considered in light of any change to the rules on jurisdictional competence.Footnote ⁷⁴

Third, both judges felt that this change would be best made by statute, but the strength of their stance on this diverged. Clarke J in the High Court noted that the common law allowed for change and some flexibility in meeting new circumstances, but also stressed that the nature of a change in common law rules had potential for retrospective effect that would not ordinarily arise from statutory change.Footnote ⁷⁵ He acknowledged that the suggested change to the real and substantial connection test was not so extreme as to amount to judicial legislation; he still felt that courts should exercise ‘significant caution’ when considering such radical change.Footnote ⁷⁶

Ultimately, the High Court judge concluded the change had ‘the potential to do more harm than good’Footnote ⁷⁷ in ‘adversely affecting, in a retrospective way, parties who had ordered their affairs … on the basis of a reasonable understanding of what the law currently was’.Footnote ⁷⁸

Finnegan J in the Supreme Court said that it was preferable that some areas of law develop in a uniform manner by way of international agreement or legislation.Footnote ⁷⁹ This would allow the defences to recognition and enforcement to be reformulated, if this were necessary, at the same time.Footnote ⁸⁰ He said that for the Court to adopt the Canadian approach would be ‘of such significance that it would in my opinion exceed the judicial function to re-state the common law’.Footnote ⁸¹ He later repeated that adopting the real and substantial connection test would be ‘to make a change to Irish law … that … exceeds the judicial function’.Footnote ⁸² This seems to go further than Clarke J, as it suggests that adopting the Canadian change would actually exceed the role of the judiciary, and amount to judicial legislation, rather than simply thinking it unwise to make such a change by way of judicial development of the common law. Moreover, Finnegan J's suggestion seems to be that national legislation or international agreement was the necessary mode of development not only for this issue, but for all common law rules of private international law.Footnote ⁸³

A. Criticism of the Majority Approach

There may be good reasons for rejecting the Canadian approach to recognition and enforcement, but I suggest that the majority judgment of the Supreme Court went too far in its reasoning. There are several problems with the majority approach.

The first issue stems from the reliance placed on the lack of consensus in the common law world on following Canada's lead. This was relied on by both Clarke J in the High Court and Finnegan J for the Supreme Court majority. However, as Finnegan J indicated, there was not merely an absence of authority favourable to the development; in fact, there was no case presented by counsel that had even considered the Canadian development and decided to reject it. This is not terribly surprising; as Briggs puts it, ‘cases on the recognition of foreign judgments do not come along everywhere and every day before a court with authority to strike out along a new path.’Footnote ⁸⁴ When the Irish Supreme Court previously commented on the importance of having regard to consensus when considering innovations in the common law,Footnote ⁸⁵ this was surely contingent on the issue in question having actually been considered elsewhere in the common law world. A consensus either in favour or against a development, if existent, would be relevant—though surely not decisive—considerations. When a development has never having been considered at all before other courts, there cannot be said to any consensus, and this can hardly be relevant to either side of the argument.

The error in this approach is apparent if we imagine that it were universalized. If every common law court took this view, a consensus on change could never develop, precisely because a consensus had not previously developed. This can scarcely be a compelling argument for forbearance in the development of the common law.

Second, Finnegan J's argument about the radical nature of this change goes much further than Clarke J's did. Clarke J did not think that the proposed change amounted to judicial legislation. Though he noted there was a limit on what the courts could do by way of alteration of the common law, he made it clear that what was suggested in this case did not transcend that limit.Footnote ⁸⁶ However, it is apparent that Finnegan J did not share this view; he twice said that the change was so great as to ‘exceed the judicial function’.Footnote ⁸⁷ He seems to have thought that this change would amount to judicial legislation, beyond the powers of the court. It is unclear why this would be the case. The common law rules are judge-made; no legislation had intervened in this area of law in Ireland.Footnote ⁸⁸ His statement that implementing the Canadian reform in Ireland would exceed the judicial functions therefore seems questionable. It would certainly be a profound alteration, perhaps even an ill-advised one, but why it would be beyond the power of the courts to make is not clear. It would not have contradicted or overruled any legislative rule, nor done anything that could not have been undone by way of legislative intervention.

If this is what Finnegan J thought, it is a significant decision indeed, and has relevance beyond the sphere of private international law. It would mean that the Irish courts have decided that any major change in the common law is outside their powers. This would have the effect of placing those areas of law still governed by the common law in a sort of permafrost, only to be thawed should the legislature decide to intervene. This is an unnecessarily narrow view of the judicial function. It gives too much respect to the common law as it stands now, which is largely a patchwork of judicial experience, undeserving of this deferential approach.

Third, Finnegan J is correct in noting the uncertainty and unfairness that might result from changing the rules. Parties who relied on a reasonable view of the law, and failed to contest foreign actions, might be unfairly treated if the law is found to be something else.Footnote ⁸⁹ However, this should not be exaggerated. The Flightlease case was unusual, and unlike the Saldanha case, no reliance had been placed on the traditional rules by these particular parties at the time when the case was taken.Footnote ⁹⁰ The result in this instance would not have been ‘disgraceful’, as the result in Saldanha was said to be.Footnote ⁹¹

In addition, as the minority concurring judge in the Supreme Court pointed out, reliance on these rules was probably not as extensive as was made out by the majority, due to the reality that many businesses operate across borders. The unenforceability of a judgment in Ireland would not offer as much comfort to most people as it would to the liquidators of Flightlease:Footnote ⁹² ‘few individuals and fewer businesses can be so confident that they will never have business or assets in a country in which the judgment may be enforceable that they could afford to ignore the prospect of the judgment being obtained.’Footnote ⁹³ This might not give an Irish court an independent reason to, as Briggs would put it, ‘follow the Supreme Court of Canada out into the wilderness’,Footnote ⁹⁴ but it does suggest that the number of people who might have relied on the Irish rules to protect against enforcement, and who would be subject to possible unfairness in the event of judicial change, is lower than one might think.

Moreover, the judgment in Flightlease is not without its own form of unfairness. The Court decided to prevent the unfairness that would be caused by effecting a change in the status quo at the expense of preventing the unfairness caused by the status quo. The current rules allow individuals to ignore foreign proceedings with impunity if they do not fall within the narrow criteria for recognition and enforcement, even when the action is closely connected with the foreign jurisdiction. It is not fair to foreign plaintiffs to frustrate efforts to enforce judgments properly and reasonably obtained in appropriate jurisdictions. This unfairness may have seemed more palatable to the Court because it was pre-existing, but it is nonetheless significant.

However, the Supreme Court majority did not pay any regard to the unfairness wrought by the rules as currently formulated, while focusing a great deal on the risk of unfairness if the rules were unsettled. The Supreme Court treated the unfairness wrought by the traditional rules as a background reality, not related to or caused by the judges in this case, as opposed to being the consequences of the retention of judge-made rules. The Supreme Court majority thus disclaimed any responsibility for the existence of this unfairness. This belies the fact that judges made these rules, and by judges they could be unmade.

Fourth, when speaking of the need for this issue to be left for legislative determination, the Supreme Court did not acknowledge that such change is unlikely to come. With all judgments from EU Member States being governed by the mechanical rules of recognition and enforcement found in the Brussels regime, the number of instances where the common law rules need to be applied has significantly diminished. The impetus for change in this obscure area of law is therefore small, and is unlikely to attract the attention of the legislature. International agreement that goes beyond the Brussels regime seems equally unlikely. Realistically, the Court's refusal to change the common law rules means that no change will be forthcoming in the foreseeable future. The idea that reform will be taken up by the legislature is a fiction, and we should accept that deciding against judicial change is almost certainly retaining, in the long term, the rules as they stand. In shifting the onus to change the rules to another body, the Court again abdicated any responsibility for unfairness caused by the persistence of these rules.

B. A More Compelling Argument against Change

The reasoning of the Supreme Court majority is flawed in some respects, and hyperbolic in others. However, the case for rejecting the Canadian rules presented by O'Donnell J in his concurrence in the Supreme Court was more cognizant of the weaknesses of the traditional common law rules, and more measured in its reasoning. He makes convincing a case for retaining the traditional rules, albeit with some reluctance.

O'Donnell J acknowledged that the traditional common law rules have very little to recommend them, except that they are rules that are known to people and therefore allow for some degree of planning and certainty.Footnote ⁹⁵ He is, I think, correct to say that the intrinsic value of the rules is close to non-existent.

He acknowledged the unfairness wrought by the current rules, and the good sense in the argument for expanding them:

However, he said that while the Canadian rules offered ‘substantially more in terms of inherent merit’, they paid ‘a much heavier price in terms of uncertainty and unpredictability’.Footnote ⁹⁷ He said it was ‘more easily and readily applied after the fact (when all the relevant facts are identified) than in advance when parties may have only partial information and little time’.Footnote ⁹⁸ This was a poor trait for a rule that would be relied upon by parties deciding how to act. This failing of the Canadian rules, noted by academic commentators,Footnote ⁹⁹ was insufficiently discussed by the majority in the Irish Supreme Court, who focused on the unfairness of the retrospective effects of change rather than problems with the prospective application of the new rules. Though in a development subsequent to Flightlease, the Supreme Court of Canada attempted to give additional clarity to the real and substantial connection test, it is questionable that this development substantially answers O'Donnell J's objection.Footnote ¹⁰⁰

In light of this, O'Donnell J felt that such a change was ‘more appropriate to legislation than judicial decision’.Footnote ¹⁰¹ He did not go so far as to say it would exceed the judicial function to make the change, but rather that it would be better done in that manner. Moreover, he acknowledged that the chance of domestic legislative intervention in this area is unlikely,Footnote ¹⁰² nor was international agreement likely to be forthcoming.Footnote ¹⁰³ He was realistic as to the prospect of such change, and appreciated that the consequence of the Court's judgment would be the perpetuation of the traditional rules, and their attendant flaws.

In highlighting these points, O'Donnell J noted that he had ‘no particular enthusiasm’Footnote ¹⁰⁴ for the outcome. The Court's conclusion meant that

Still, he would not make a change when he doubted ‘that its adoption would not produce any measurable improvement in Irish law’.Footnote ¹⁰⁶

In addition to O'Donnell J's more persuasive points, an argument about formulation of defences forms part of a strong case against change. Finnegan J noted that reform of defences to enforcement may be necessary, and that this could be better done by legislation than by case-by-case judicial reform. Briggs makes a compelling case that defences would have to be altered in light of a new approach.Footnote ¹⁰⁷ This would have to be considered case by case, and might take some time. Though this point was not made explicitly in Flightlease, it might have been difficult for the Court to reformulate or expand the traditional defences in this case, as there was no actual judgment to be enforced. The reformulation would have to have been undertaken in the abstract. Blom and Edinger note that 15 years after Mortguard, it was not clear that subsequent cases had clarified the ambiguous elements of the case.Footnote ¹⁰⁸ The fact that there is a relatively small amount of litigation in this area might mean a long delay before the defences to recognition and enforcement could be reformulated, and uncertainty would be heightened until this process was complete.