Libyan Blue Bird For Air Transport Co LLC v Executive Authority For Special Flights

APPROVED [2026] IEHC 139 THE HIGH COURT 2023 3051 P BETWEEN LIBYAN BLUE BIRD FOR AIR TRANSPORT CO. LLC PLAINTIFF AND EXECUTIVE AUTHORITY FOR SPECIAL FLIGHTS DEFENDANT JUDGMENT of Mr. Justice Nolan delivered on the 9th day of March 2026 Introduction 1. In August of 2017 the Plaintiff, a Libyan registered company and the Defendant, an executive agency of the Government of Libya, entered into an Aircraft Lease Agreement for the service and maintenance of an Antonov AN124/100 5A-DKL Aircraft in Libya. For reasons which are not quite clear the parties agreed that the relevant jurisdiction was defined as “the Republic of Ireland or such other jurisdiction as the Lessor may, in its discretion, agree in writing to be a Relevant Jurisdiction for the purposes of the Agreement”. 2. As if that wasn't surprising enough, Clause 23.01 under the heading of “Choice of Law”, says that “this Agreement shall be governed by and construed in accordance with Libyan and Irish law” while Clause 23.02 provides that “In relation to any dispute arising out of or in connection with this Agreement, and for the exclusive benefit of the Lessor,(the Defendant) the Lessee (Plaintiff) hereby irrevocably and unconditionally submits to the Libyan judiciary & jurisdiction of the High Court of Justice in Ireland and waives any objection to proceedings with respect to this Agreement in such Court on the grounds of venue or inconvenient forum” 3. It will not come as a shock that a dispute has arisen and that the Plaintiff has issued proceedings in this jurisdiction. This application is brought by the Defendant, pursuant to Order 12 Rule 26 of the Rules of the Superior Courts (“the Rules”) to set aside service of the notice of originating summons and discharge the Order of Ferriter J., dated the 19th of June 2023. The motion also seeks a determination that the Defendant is entitled to assert sovereign immunity by way of objection to the exercise of the jurisdiction of this court and that the court should decline to assume jurisdiction in the proceedings, however that later was not pressed. Background 4. The Plaintiff is involved in the business of aircraft leasing while the Defendant is an executive agency of the Government of Libya, in essence an emanation of the State of Libya, responsible for providing flights for senior government ministers and officials in Libya. 5. The aircraft was subject to an aircraft service agreement in 2010 between the Defendant and a Ukrainian registered state-owned private entity called Antonov company (“Antonov”). Antonov had agreed to service and maintain the aircraft on the payment of certain fees. By early 2017 the Defendant was indebted to Antonov for significant sums and the matter was referred to the International Commercial Arbitration Court. In March of 2017 the Defendant agreed to assign to the Plaintiff responsibility for yard fees and the maintenance and payment of debts relating to the maintenance of the aircraft along with its repair and operation. 6. By the agreement, the subject matter of these proceedings, dated the 28th of August 2017, the Plaintiff agreed to hire, and the Defendant agreed to let the aircraft on terms. The lease was for five years. The Plaintiff had, with the Defendants written approval, the right to sublease or charter the aircraft. Through a complex series of arrangements, the Plaintiff paid over $1 million, on behalf of the Defendant, which it says is was now due and owing. The Application for Service Out of Jurisdiction 7. An application for leave to issue proceedings out of jurisdiction pursuant to Order 11 Rule 11(e) (iii) of the Rules was made before Ferriter J. on the 19th of June 2023, grounded on an affidavit of the Plaintiff’s solicitor, sworn on the 6th of June 2023. The affidavit is particularly relevant to this application and therefore I shall deal with it in some detail. 8. After the usual averments, he stated that the contract, by its terms is governed by Irish law and therefore the Irish courts have power, pursuant to Order 11 Rule 11(e) (iii), to grant leave to issue a plenary summons and serve notice of originating summons on the Defendant, out of jurisdiction in Libya. He then set out the nature of the agreement and dispute, as set out above and quotes Clause 23 (the Applicable Law) among others, which I have also set out above. 9. At Paragraph 28 he said the reference to Libyan law was put beyond doubt by the Defendant’s inclusion in the agreement that the Plaintiff's choice of Irish law governing the agreement is valid and binding. He then referred to the next paragraph in the contract regarding jurisdiction, not quoting it in full but in the following terms: - “Regarding jurisdiction, the respondent (the Defendant) required the Applicant, (the Plaintiff) by way of the Agreement, 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”. 10. That is an important averment in circumstances where the Defendant says not only did it not insist that the matter could be determined before the Irish High Court, but it was never asked. 11. However, the real issue in this case relates to paras. 30 and 31. Again given their importance I shall set them out in full. “30. Should this Honourable Court accede to this application the court would do no more than permit the Applicant to issue and serve the intended proceedings, and the Respondent may choose not to enter an appearance and let the Applicant secure judgment against it in this jurisdiction or may prefer to bring an application to set aside the Order granting leave, and if successful that would be the end of the matter. 31. However, should this application be refused, the Applicant would be without a forum and more particularly, a competent forum, to determine the distribution and therefore it would be left without a remedy. I say and believe this where the Applicant agreed to submit to the “High Court of Justice of Ireland”, and no other, any dispute in respect of the Agreement. Should the application be refused, the Applicant would be prohibited by the Agreement from having any dispute in respect of the Agreement adjudicated by courts of any other jurisdiction. I say I believe but where the Agreement requires it to be governed by and construed in accordance with Irish law, no courts, other than those of the Republic of Ireland, would be as well positioned to adjudicate on of issues of Irish law. For these reasons, and such further reasons as are submitted by Counsel at the hearing of this application, I believe Ireland to be the most convenient jurisdiction to hear such an action”. (emphasis added) 12. There are a number of things to say about these paragraphs. Firstly, the Plaintiff’s solicitor submitted, in very strong terms, that the agreement requires to be governed by and construed in accordance with Irish law. However as is clear from Clause 23.01, the agreement is to be governed by and construed in accordance with two legal systems: the Libyan legal system and the Irish legal system. This presumably depends on whether the proceedings are first instituted in Libya or Ireland. Therefore, it is somewhat confusing simply to say that the contract is governed by and construed in accordance with Irish law alone, that is a matter of construction. I shall deal with it below since it is an issue which is raised in this application. 13. The second point to note is that he again states, in clear and emphatic terms, that if the application is refused the Plaintiff would be without a forum to determine the dispute and therefore it would be left without a remedy. While the paragraph goes on to include the words “competent forum”, any reader of this affidavit would clearly take from it that were the application to be refused the applicant would be left without a remedy. As it transpires that is incorrect. The Tripoli Proceedings 14. What the Court did not know was that the Plaintiff had issued another set of proceedings in the North Tripoli First Instance Court (“the Tripoli proceedings”), 17th of January 2023, five months before the moving of the application before Ferriter J., dealing with precisely the same issue. Nor was it stated that the Plaintiff had appeared before the Tripoli court on five occasions, between the 30th of January 2023 to the 5th of June 2023. 15. 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. The Motion and Affidavits 16. Following the application, notice of the originating summons and the Order of the 19th of June 2023, were served on the Defendant in Libya. A conditional appearance was duly entered, and this motion was served. 17. The grounding affidavit sworn by the General Director of the Defendant, Mohamed Elsabti, set out the dispute, the contract and jurisdiction clauses, as well as the status of the Defendant (for the purposes of making a sovereign immunity argument). Crucially at para. 34 he deals with the Tripoli proceedings and exhibits them. 18. In a replying affidavit the Plaintiff’s solicitor was very careful to state that he swore the affidavit only for the sake of expediency and that his client would swear a supporting affidavit. Quite remarkably the issue of the nondisclosure of the Tripoli proceedings was only referred to at the very end of his affidavit. His answer is again of some importance so I should set it out:- “33, The Plaintiff readily acknowledges the Libyan Proceedings were commenced and that, were the Court of First Instance of Northern Tripoli an ordinary court with normal legal standing and seisin, it might, by virtue of having commenced those proceedings, be estopped from pursuing the herein proceedings before this Honourable Court. However, as Mr. Elsabti has himself acknowledged, judgment of the Libyan Court has been indefinitely reserved. 34. The evidence of the independent Libyan legal expert will confirm that the Libyan courts do not, in any conventional sense, function as normal national courts and that there is no reality to the Libyan Proceedings, which are incapable of producing any kind of enforceable decision against the Defendant. 35. Mr. Hesham has confirmed that the decision to pursue the Libyan Proceedings was made due to considerations of cost and convenience and that it has become clear that these are sham proceedings which were presided over by a tribunal that does not have the key features of a Court of normal jurisdiction and standing. This will be confirmed by the opinion of the independent Libyan counsel.” (emphasis added) 19. The next affidavit was from Hesham Ghadah, the General Director of the Plaintiff, (the gentleman referred to above), he said that an independent Libyan legal expert, Dr. Abuhunyk would confirm that the Libyan courts do not, in any conventional sense, function as normal national courts. He went on to say that the Libyan court system was characterised by deep systematic dysfunctions including bribery, corruption and administrative and logistical obstacles such that decisions were not amenable to effective enforcement. He also confirmed that cost and convenience were central to the decision to pursue the Triploi proceedings. He concluded that there was no reality to those proceedings since, in his opinion, they were presided over by a tribunal that did not have key features of a court of normal jurisdiction and standing. 20. That affidavit was sworn in on the 13th of November 2024, which was one month after the Plaintiff, itself, had appeared before the Tripoli court. 21. The independent Libyan legal expert, Dr Abuhunyk, was far more circumspect in what he said on this issue. He said that the Libyan judiciary had been practising in a turbulent situation “which is a matter of praise for those in charge of maintaining justice”. There is no reference to bribery or corruption. As for the implementation of the court rulings, he said that such matters are governed and influenced by many factors such as the slow and prolonged litigation procedures, which sometimes reached 20 years. He said that some state authorities created legal obstacles because of deficiencies in litigation legislation which caused delays in the implementation of court decisions. 22. What is notable is that he did not say that the Libyan courts did not function as normal national courts in any conventional sense. Nor did he say that there is no reality to the Libyan proceedings, or that they were incapable of producing any kind of enforceable decision against the Defendant, as the Plaintiff’s solicitor and Mr. Hesham had said. Crucially no where did he say that the Tripoli proceedings were a sham. 23. Mr. Elsabti, the General Director of the Defendant, in a further affidavit said that allegations that the proceedings were sham was a very extreme allegation. He noted that such allegations had not been made in the Tripoli court and that there had been a number of adjournments at the request of the Plaintiff’s lawyers, something which has not been disputed. He exhibited a transcript of the various appearances before the court. 24. This was followed by another affidavit from of the Defendant’s independent Libyan legal expert, Dr. Ali Mohammed. He said that there were no impediments to the execution of judgments, exhibiting statistics to prove the point. 25. A series of further affidavits were exchanged but they do not add anything significantly more to the case but suffice to say the parties are not an agreement on the core issues. 26. What is remarkable about the affidavits emanating from the Plaintiff, is that at no stage do they seek to explain, excuse or even refer to the failure to disclose the Tripoli proceedings, something which was raised in the Defendant’s very first affidavit. The Submissions 27. Mr. Lehane SC for the Defendant focuses on three core issues: the failure to disclose the existence of the Triploi proceedings amounting to material non-disclosure, the contract and the choice of law (forum non conveniens) and finally the issue of sovereign immunity. He brought the court through the various affidavits and legal opinions from the Libyan lawyers and the law relating to Order 11, which I will deal with in some detail below. He also brought me to the key legal authorities, but it is agreed that I could consider older authorities on the same point so long as they are not contradictory. He points to the failure to refer to the Tripoli proceedings and the impact that that can have up on the court’s discretion. He says the contract is crucial in determining the issue of forum non conveniens and relies upon the case of Trafalgar Developments Ltd and others v Mazepin and others [2020] IEHC 13. He says that the choice of jurisdiction is that of his client. At all times the burden of proof rests with the Plaintiff. In relation to the issue of sovereign immunity he rests on his legal submissions which are comprehensive. 28. In response Mr. Tchrakian B.L. for the Plaintiff, notes that given Order 12 Rule 24, it is always open to the Defendant having been served to apply to set it aside, as it has done here. Such an application is a de novo application and therefore applications to serve out of the jurisdiction tend to be dealt with on a relatively summary basis, since the judge who grants the service outside the jurisdiction is effectively leaving it up to the Defendant to determine whether there is a reason to set that jurisdiction aside. 29. He notes there is no application for a stay, which would be normal in such an application where the defence of forum non conveniens arises, since the difference is important because with a stay the proceedings can await the outcome of other proceedings, but if the service is set aside that is the end of the matter. 30. He acknowledges that the failure to disclose the Tripoli proceedings was unfortunate and material. However, he argues that even if it had been disclosed, the overwhelming probability is that the order would have been made, since the jurisdiction and governing law clauses clearly refers to the courts of Ireland, which fit neatly into Order 11. He points to Petersen Energía Inversora S.A.U. v Argentine Republic [2025] IEHC 463, as authority that the lack of disclosure must be material. 31. He submits that due to the delays and the volatile situation in Libya there is no chance of two conflicting judgments in this matter in two different jurisdictions. 32. He says he has put evidence of an independent Libyan lawyer before the court which shows that Libya would not be an appropriate jurisdiction to hear the case, noting the lengthy delays and the volatile political situation together with other alleged abuses. He says that the Rules are there to prevent injustice not to punish litigants and, on that point, he is undoubtedly correct. 33. He believes that the choice of law is that of his client although he acknowledges that Clause 23.01 is not well drafted. He accepts that the contract dictates that his client can only issue proceedings in either Libya or Ireland. In hindsight, however, he acknowledges that probably it would be better if the proceedings had started in Ireland. 34. In reply, Mr Lehane says that there is no authority for the proposition that such applications are somewhat summary. Regarding Petersen, he says that the non-disclosure has to be something that would have impacted on the decision-making. He says that the submissions that it would not have made any difference if everything was before Ferriter J. is speculative, particularly where the burden of proof rest on the Plaintiff. To put a stay on the proceedings, something which the court raised, would be to allow two sets of proceedings in two jurisdictions on the same issue with the court having some form of supervisory role. Order 11 Rule 1 (e) (iii) 35. The starting point in this application must be the Rule itself. While it has been suggested both in the written and oral submissions that such an application is often granted on a relatively summary basis, both the Rule and the case law that follows, would suggest otherwise. 36. The Rule was amended in 2024, before the application to Ferriter J. was made, introducing a new Rule 2. Therefore, that Rule has no relevance to the ex parte application moved on the 19th of June 2023. 37. The old Rule 1 (e) (iii) reads as follows: - “Provided that an originating summons is not a summons to which Order 11A applies, service out of the jurisdiction of an originating summons or notice of an originating summons may be allowed by the court whenever: (e) the action is one brought to enforce, rescind, dissolve, annul, or otherwise Affect a contract, or to recover damages or other relief for or in respect of the breach of a contract; (iii) by its terms or by implication to be governed by Irish law, or is one brought in respect of a breach committed within the jurisdiction of a contract wherever made, even though such breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction;…” 38. It is interesting to note that the new Rule 2 mandates the court to have regard to the generally recognised principles of international law and may for that purpose require the filing of written submissions. The requirement to have regard to the generally recognised principles of international law, is something which a court would always have to consider, even before the Rule was amended. The Law Relating to Service Out and Non-Disclosure 39. The law relating to service out of jurisdiction is of some antiquity going back to before the commencement of the State. (see Dunlop v Dunlop Rubber Company [1920] 1 IR 280) The most authoritative view as to the exercise which the court should undertake when making an order under Order 11, is probably Fennelly J.’s in Analog Devices B.V. v Zurich Insurance Company [2002] IESC 1. In that case he set out the law in relation to the jurisdiction of the court. He said at page 281: - “It is convenient to assess in the first instance the case for the existence of primary jurisdiction under the Rules.... When the court grants leave for the service out to the jurisdiction of proceedings, it requires a person, not otherwise within the jurisdiction of our courts, to appear here and to answer the claim of a person made in what is for him a foreign court rather than leaving the plaintiff to pursue his remedy against that person in that other jurisdiction. The international comity of the courts have long required, therefore, that our courts examine such applications with care and circumspection. The applicant must furnish an affidavit verifying the facts upon which he bases his cause of action. It is not sufficient that he assert that he has a cause of action. The court judges the strength of the cause of action on a test of a “good arguable case”…. It is in this context that the plaintiffs submits that the Court should apply a test of a “fair arguable case” leaving the resolution of any disputes to the trial of the action. That approach needs to be applied with especial circumspection in a case where the issue in contention is whether the court can take upon itself jurisdiction over a foreign person or corporation”. (emphasis added) 40. Therefore, the issue is one of jurisdiction, which the court is invoking by making such an order. He went on to point out that in some circumstances the courts apply a “fair arguable case” such as seeking an interlocutory relief or applying for judicial review. But he observed in those cases the position of the opposing party is not irrevocably affected. That party may succeed at the trial of the action though an introductory injunction has been granted against him or at the substantive application for judicial review. He went on to say: - “This case is different. If the court grants leave to effect service out of the jurisdiction, it asserts that it has jurisdiction. The foreign defendant is required to submit to that jurisdiction and fails to do so at his peril. In particular, if the court declines to set aside an order for service, that ends the dispute about jurisdiction. There is no later opportunity to reopen the matter”. 41. It is not a summary or pro forma application. It should be sworn on an affidavit of the moving party not his solicitor (See Analog). In this case I appreciate that during this application the Plaintiff’s solicitor, for sake of convenience and speed, swore an affidavit, but there were no such considerations applicable at the time that the application was initially moved. Given that the choice as to when the ex parte application could be moved was that of the Plaintiffs 42. legal team, I see no reason why a representative of the Plaintiff could not have sworn the affidavit, as was done subsequently. Had that occurred the issues which have dogged this case may not have arisen. 43. Further decided cases put beyond doubt the importance of the contents of the affidavit which grounds the application for service out of jurisdiction. This is particularly so given that the order is discretionary. The fact that the proceedings come within one or more of the categories specified in the order does not entitle the applicant, as of right, to succeed in the application. (See Delaney McGrath 5th Ed). 44. In Vodafone v ILIV [2016] IEHC 321, Barrett J, noted: - “There is a heavy burden on the court to examine the circumstances of each case before exercising its discretion to grant leave for service out of the jurisdiction. It would be as inappropriate (i) to refuse such an order on the application of a technical rule which insists on one element occurring in the jurisdiction as (ii) to grant leave where the case had only a tenuous connection with Ireland on its facts and in terms of the law likely to govern questions of liability and related matters”. 45. In SGB Finance SA v The Owners of “Connoisseur [2018] IEHC 699, McDonald J. observed: - “In any ex parte application the court relies on the good faith of the party making the application. It is well settled that such a party is under an obligation to make full and frank disclosure to the court of all relevant material (even material which is adverse to the position of that party). In my view, it is essential that if anyone is concerned that full and frank disclosure has not been made, those concerns should be brought to the attention of the court at the earliest possible time. (emphasis added) 46. Recently in Petersen, Roberts J, noted that the party who obtained the ex parte order, bears the burden of demonstrating that the order was properly granted, a point accepted in this case. However, it should be noted that in that case the issue of alleged non-disclosure was one of a number of arguments made by the defendants to set aside the service, which dealt with complex litigation. 47. At para. 182 she said: - “It is well settled law that any party seeking to invoke the jurisdiction of the court ex parte is bound by a duty of candour and utmost good faith towards the court. The courts can set aside an order granting leave to serve proceedings outside the jurisdiction where the order was made on foot of an affidavit that is misleading, even if it is not intentionally misleading, if the facts that ought to have been disclosed were material to the exercise of the Court’s discretion” (emphasis added) 48. While I do not think such an omission as simply a breach of a duty of candour, which is, to certain extent, a public law concept, I see it clearly within the court’s inherent jurisdiction and the obligation of uberium fides. The key issue is whether the omission was material. 49. In the course of her judgement, she referred to the decision of Clarke J., as he then was, in Bambrick v Cobley [2005] IEHC 43 where an order was made by the High Court on an ex parte application for an interim Mareva injunction restraining the defendant from reducing her assets in the jurisdiction below €100,000. At the interlocutory hearing it was claimed that the plaintiff had failed to disclose, when applying for the interim order, that the defendant’s solicitors had undertaken to hold €50,000 on trust. On the facts Clarke J held (at page 89) that: “.. the non-disclosed facts were of significant materiality. …there is a very real possibility that the court would either have made no order or potentially required short service and considered an order only in respect of a significantly lesser sum had it been apprised of the full facts”. The interim order was discharged. While Clarke J was not prepared to hold on the evidence that the plaintiff had deliberately misled the court, he found that as a solicitor the plaintiff ought to have been aware of his duty to disclose all material facts and must be regarded as “significantly culpable” in failing to do so in that case. It seems to me that the same issues arise here. He went on to deal with the consequences which may flow at page 89: - “It is therefore necessary to consider, in general terms, the criteria which the court should apply in the exercise of such discretion. Clearly the court should have regard to all the circumstances of the case. However the following factors appear to me to be the ones most likely to weigh heavily with the court in such circumstances: 1. The materiality of the facts not disclosed. 2. The extent to which it may be said that the plaintiff is culpable in respect of a failure to disclose. A deliberate misleading of the court is likely to weigh more heavily in favour of the discretion being exercised against the continuance of an injunction than an innocent omission. There are obviously intermediate cases where the court may not be satisfied that there was a deliberate attempt to mislead but that the plaintiff was, nonetheless, significantly culpable in failing to disclose. 3.The overall circumstances of the case which lead to the application in the first place...." Application of the Law to the Facts - Non-Disclosure 50. As I noted above, there was no particular urgency to the application to serve out of jurisdiction. Nonetheless the Plaintiff’s solicitor chose to swear the affidavit. In so doing he took it upon himself the duty to ensure that all material facts were before the court, before it could exercise its discretion in granting the relief. 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. He does not attempt to stand over this mistake. He is quite right to take that approach. However, notwithstanding that approach, the fact remains that the order was granted in circumstances where key information was not put before it. 51. It has been conceded that that information was material, but the argument made is that it would not have made any difference. 52. Applying the test set out by Clarke J. in Bambrick, there is no doubt as to the information’s materiality. 53. It is impossible to say to what extent it can be said that the Plaintiff or the Plaintiff’s solicitor were culpable in respect of the failure to disclose, since no explanation of any description has been put before the court to explain the glaring failure. 54. Given that the Plaintiff’s solicitor is an officer of court, I can only conclude that it was information which he was not aware of. Nonetheless I am concerned by the use of the phrase “competent forum”. It seems to imply more then it says. 55. However, the matter must be seen from the position of the Plaintiff, not the Plaintiff’s solicitor. It is hard to see how it could be said that it was a simple mistake or an error not to disclose this information. It must have been a decision taken since at the same time as the application was being moved in this jurisdiction, the Plaintiff was engaging in the litigation in Tripoli. 56. The senior members of the company must have been aware of the importance of this information, given that having litigated and continued to litigate in one jurisdiction and were now seeking to do exactly the same thing in another jurisdiction. That would have been a big decision, with financial implications involving the hiring of solicitor and counsel in this jurisdiction. Since the affidavit was sworn on behalf of the Plaintiff, it must have been approved by it, as subsequent affidavits were. In those circumstances, the contents of para. 33 are remarkable and in the context of this application, damning. 57. The Plaintiff’s solicitor said that should the application be refused, the Plaintiff would be “without a forum, and more particularly a competent forum, to determine the dispute and therefore it would be left without a remedy” and that should the application be refused, the Plaintiff “would be prohibited by the agreement from having any dispute in respect of the agreement adjudication by courts of any other jurisdiction”. This averment is not only wholly incorrect, to say the least, but materially misleading. The Plaintiff was not left without a forum to determine the dispute since, at its own volition, it had instituted proceedings in Tripoli. It was also wholly incorrect to say that the Plaintiff would be prohibited from having the matter adjudicated in any other jurisdiction since at the very time it was litigating the matter in another jurisdiction. 58. In those circumstances I find that the non-disclosure was material and was, on balance of probabilities, culpable. However, I do not have to come to that view, bearing in mind the views expressed by Roberts J in Peterson, where she said the courts can set aside an order granting leave to serve notice of proceedings, where the order was made on foot of an affidavit that is misleading, even if it is not intentionally misleading. 59. 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. 60. In regard to the submission that had there been full disclosure the same order would have been made, I cannot agree. The obligation on the court is to examine such applications with “care and circumspection” (as per Fennelly J. in Analog). There is “a heavy burden on the court to examine the circumstances of each case” before exercising its discretion to grant leave, (as per Barrett J. in Vodafone). 61. In my view, it is beyond all reasonable doubt that had the fact of the Tripoli proceedings being disclosed, Ferriter J. would have raised serious questions. The first question would be why the Plaintiff is litigating the same matter in another jurisdiction. Thereafter the court might have questioned whether by so doing the Plaintiff had confirmed one jurisdiction over the other, thereby excluding the Irish court’s jurisdiction. Further the court may have enquired as to what would to happen if the courts in the two jurisdictions came to a different view on the issues. These are fundamental questions and there maybe more, which would have been asked by any judge in these circumstances. 62. Given that the burden rests with the Plaintiff, I find that that burden has not been discharged. The court must ensure that any applicant is “not forum shopping” or seeking inconsistent remedies or manipulating procedural rules. 63. I do not see this as the court punishing the Plaintiff as has been suggested, it is a matter of jurisdiction. As Fennelly J. pointed out, if the order for service out is made, it mandates a citizen or legal entity of another country to become the subject to the orders of the Irish courts. They fail to do so at their peril, a fact which was to the fore in the grounding affidavit of the Plaintiff’s solicitor, where he noted that the Defendant could choose not to enter an appearance and let the Plaintiff secure judgement against it in this jurisdiction. That would have been an intolerable situation had not the Defendant acted and brought this application. 64. Therefore, I find that the facts ought to have been disclosed since they were material to the exercise of the Court’s discretion. I have little hesitation in concluding but the service should be set aside on the grounds of non-disclosure and breaches of the obligation of ubriem fides. If for some reason I am incorrect in this matter, then I turn to the second ground for setting aside the service. The Contract the Choice of Law and forum non conveniens 65. As Barniville J (as he then was) said in Trafalgar the fact that the proceedings fall within one of the gateways in Order. 11, Rule 1 does not mean that a plaintiff is entitled, as of right, to obtain service out of the jurisdiction. He or she must also provide evidence enabling the court to exercise its discretion under Order. 11, Rule 2, namely, that having regard to the amount or value of the claim or property affected and the comparative costs and convenience of proceedings in Ireland or in the place of the defendants’ residence, Ireland is a “convenient” forum i.e. a suitable or appropriate forum to hear and determine the proceedings. 66. In Trafalgar [2022] IEHC 167 Barniville J., said at para. 321: - “I must also bear in mind that the case law makes clear that an Irish court would have to exercise particular restraint before concluding that a party would not receive substantial justice by reason of the lack of independence or other systemic inadequacies in the other jurisdiction, having regard to the requirements of international comity of courts. Clear and cogent evidence is required in order to sustain this factor as a reason for either refusing a stay on forum non conveniens grounds or for rejecting a challenge to jurisdiction on some other basis, such as a claimed lack of jurisdiction under O.11.” (emphasis added) 67. Turning to the evidence, 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. Clause 23.01 then provides that the agreement is to be governed and construed under both Libyan and Irish law while Clause 23.02 adds, that for the Defendant’s exclusive benefit, the Plaintiff “irrevocably and unconditionally” submits to the Libyan judiciary and to “the jurisdiction of the High Court of Justice in Ireland” — a formulation whose meaning is far from clear. 68. As Counsel for the Plaintiff says, one cannot submit to the judiciary of a country, only the court of a country. Further the phrase for “the exclusive benefit of the lessor” is confusing. Mr Lehane in his submissions interprets this as being that is the choice of his client, the Defendant, as to which jurisdiction to choose and that is how the court should interpret Clause 23.01 and 23.02. That is being conceded for the purposes of this application only. 69. Therefore, all other things being equal both the courts of Libya and the courts of Ireland could claim jurisdiction over the matter, but they both cannot. 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. It would be bizarre if in those circumstances the Irish courts could claim to have jurisdiction over a matter which is being heard in another jurisdiction. 70. In that regard counsel for the Plaintiff has urged the court to look at the views of the two Libyan lawyers. Leaving aside the views expressed by the Plaintiff’s solicitor and the General Director of the Plaintiff, and in particular the opinion of the independent Libyan lawyer Dr. Abuhunyk. However, he says no more than the Libyan judiciary has been practising under a turbulent situation and that it is a matter of praise for those in charge of maintaining justice. 71. While he criticises implementation and delay and that there are obstacles preventing execution of rulings, it goes nowhere near the assertions contained in the supporting affidavits. I cannot agree therefore that his evidence amounts to “clear and cogent evidence” (as per Trafalgar) so as to reject the challenge to jurisdiction of this court. There is not enough evidence that there is a real risk that justice will not be obtained in the courts of Libya. Presumably he did not take that view when proceedings were issued in the first place. It seems it is only as matters have progressed that he has become unhappy. 72. I am struck be the averment contained in the affidavit of Mr. Ghadah, the General Director of the Plaintiff, that proceedings were issued in Libya because of cost and convenience considerations. These are precisely the considerations which the Irish court must consider in an application under Order 11. 73. Ireland could hardly be the natural or logical forum for a dispute between two Libyan entities, about a plane in Ukraine. 74. 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. 75. Therefore, on this ground too I shall set aside the service of the proceedings. 76. The final matter relates to sovereign immunity, in the circumstances that I have already decided the matter on the other two grounds, I see no reason to decide this issue. If I were forced to decide the issue, however, I would be inclined to let the matter be determined at trial. Conclusion 77. For the reasons set out above I shall set aside the service of proceedings pursuant to Order 12 Rule 26 of the Rules. 78. As to legal costs, my provisional view is that the Defendant, having been successful in these proceedings, would be entitled to recover its costs against the Plaintiff in accordance with the default position under Section 169 of the Legal Services Regulation Act 2015. However, if the Plaintiff wishes to argue for an alternative order, it may apply within seven days to have the matter listed for a short hearing on costs. If, however, a hearing on costs is requested and if, having heard the parties, the Court makes the order it has, provisionally indicated, then the Plaintiff may be at risk of having to pay the additional costs incurred as a result of the hearing.