„(…) Lord Phillips MR:
This is the judgment of the Court.
Introduction
1. Mr Maronier is a citizen of the Netherlands. He appeals against the
decision of his Honour Judge Richard Seymour QC (sitting as a Judge at
the Queen’s Bench Division). He dismissed an appeal against the Order
of Deputy Master Chism made on 2nd February 2001. By that Order the
Deputy Master set aside registration of a judgment of the District Court
of Rotterdam dated 30th December 1999. By that judgment Mr Maronier
was awarded damages assessed at 17,864 Netherlands Guilders, together
with interest and costs. As we shall explain, the procedure followed in this
case has gone awry, but it is accepted that this Court has jurisdiction to
entertain the appeal.
2. This appeal raises an issue as to the manner of application of Article
27(1) of the 1968 Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters (‘the Brussels Convention’).
With effect from 1 March 2002 a new regime for the enforcement of
Community judgments was introduced under the Civil Jurisdiction and
Judgments Order 2001. Under the transitional provisions that Order has
no effect on this appeal. The Order does, however, render the issues
raised on this appeal of limited general interest. That is all the more so
as those issues arise in the context of facts which are quite extraordinary.
Furthermore, the evidence before the Court leaves unclear a number of
matters which are or might be material.
Events in Holland
3. These facts are derived piecemeal from a series of witness statements
provided by the parties and by Dutch lawyers instructed on their behalf.
Sources of information and belief are not always clear, but no point has
been taken on the admissibility of this evidence.
4. Mr Larmer, the Respondent, is now aged 68. Since 1991 he has lived
at an address in Kingston upon Thames. Between 1978 and 1991 he
practised as a dentist in Rotterdam. One of his patients was the Appellant,
Mr Maronier. In 1983 Mr Maronier complained to the Rotterdam Dental
Association, which is a local branch of the Dutch Association of Dentists,
about treatment that he had received from Mr Larmer. This complaint
led, after an informal hearing, to Mr Larmer being fined the equivalent
of about £1,600 and subsequently being ordered to pay the costs of
remedial treatment by another dentist.
5. On 12 March 1984 Mr Maronier commenced proceedings in the District
Court of Rotterdam in which he claimed damages in respect of the
treatment that he had received, which he alleged was negligent, in the
sum of 57,059 guilders. That is the equivalent of approximately £17,000.
The proceedings were duly served on Mr Larmer in the Netherlands. Mr
Larmer consulted the firm of de Bliek Linssen, which appears to have
been a partnership of Mr de Bliek and Mr Linssen. Mr Linssen filed a
defence on Mr Larmer’s behalf. There was then an exchange of pleadings
and statements, ending with a statement filed by Mr Maronier on 2 May
1986.
6. A statement filed on behalf of Mr Maronier by Mr Jacobs, a lawyer
whom he instructed later in the story, informs us that the proceedings
brought against the Appellant were delayed due to the fact that the
Appellant was working abroad for long periods and also suffered chronic
health problems and that the proceedings in the District Court of
Rotterdam were stayed. Surprisingly, Mr Jacobs omits to state why the
proceedings were stayed. The reason is that on 20 May 1986 Mr Maronier
went bankrupt. The bankruptcy was dissolved on 3 March 1987.
7. Before leaving for England in 1991, Mr Larmer left his address in
England with the City Hall in Rotterdam and the Dutch Association of
Dentists.
8. Nothing that is relevant then occurred until, in July 1998, Mr Maronier
instructed a new firm of lawyers, of which Mr Jacobs was a partner, to
pursue his claim. These lawyers, a firm called Kniestedt Jacobs & Duijs,
wrote a letter dated 23 July 1998 to Mr Linssen, which was not put in
evidence. Mr Linssen had by this time dissolved his partnership with Mr de
Bliek. Mr Linssen’s reply dated the 24 July 1998 read:
“In the above mentioned matter we received your letter of the 23 July
1998.
This matter is unknown to me; the matter is not a current matter and
does not show in our records. Apart from that, I have had no contact
with the client for a number of years. According to my information, the
client is presently living in England. I am sorry that I cannot inform you
otherwise.”
9. What then occurred is described by Mr Jacobs as follows:
“When the proceedings were reactivated, the Defendant was represented
before the District Court of Rotterdam by his solicitor, Mr J de Bliek. At
the point the proceedings recommenced, Mr de Bliek declared himself
to be ‘incapable’, which in Holland means a solicitor withdraws from a
case due to problems encountered with his client. The withdrawal of
Mr de Bliek from the proceedings was agreed by the District Court of
Rotterdam as can be seen from the front page of the judgment dated the
30th December 1999….
I believe, in this current matter, that Mr de Bliek withdrew from the case
as he could not obtain any instructions from his client.”
10. The judgment to which Mr Jacobs refers records Mr Larmer as
‘residing in Rotterdam’ and adds: ‘attorney initially Mr J. de Bliek,
presently not represented anymore in law’. That judgment awarded Mr
Maronier 17,864 guilders together with ‘statutory interest’ and costs.
Interest vastly exceeded the capital sum awarded, and the total amount
of the judgment was 70,234 guilders.
11. Under Dutch procedure there was a right of appeal against this
judgment. That right expired, however, 3 months after the judgment, at a
time when Mr Larmer was not yet aware of the reactivation of the action,
let alone of its outcome. It is common ground that the judgment is now
‘unassailable’ in Holland.
Matters not in evidence
12. The following matters cannot be deduced from the evidence before
us:
what Mr Larmer could reasonably expect to happen to the proceedings
once the action was stayed;
what Mr Larmer could reasonably expect to happen to the proceedings
when he left for England approximately 5 years after the last step had
been taken in the action;
whether Mr Larmer should have instructed de Bliek Linssen to continue to
represent him in the action.
what, if any, grounds were required for reactivating the action, after so
long a delay;
what procedures had to be followed to reactivate the action;
what duty, if any, either Mr Linssen or Mr de Bliek owed to Mr Larmer
when the action was reactivated after 12 years of inactivity;
what explanation Mr de Bliek advanced to the Court when obtaining
permission to withdraw from the case;
whether, as the judgment suggests, the Court believed that Mr Larmer
was resident in Rotterdam;
the basis upon which the rules of the Rotterdam District Court permitted
the claimant to proceed to obtain a judgment in the absence of Mr
Larmer;
the nature of the time limit placed on the exercise of the right of appeal
and in particular whether the District Court had any discretion to extend
the period within which to appeal if Mr Larmer was unaware of the
judgment;
how Mr Maronier obtained Mr Larmer’s address in Kingston upon Thames,
which he succeeded in doing for the purpose of enforcement.
Provisions of the Brussels Convention
13. In addition to its application under the transitional provisions of the
Civil Jurisdiction and Judgments Order 2001, the Brussels Convention
remains applicable between Member States and Denmark. We shall refer
to its effects in the present tense, despite its limited field of application.
14. The Brussels Convention has the force of law in the United Kingdom
by virtue of the provisions of s.2 of the Civil Jurisdiction and Judgments
Act 1982. The following provisions of the Convention are material:
“Article 26
A judgment given in a Contracting State shall be recognised in the other
Contracting States without any special procedure being required.
….
Article 27
A judgment shall not be recognised:
1. if such recognition is contrary to public policy in the State in which
recognition is sought;
2. where it was given in default of appearance, if the defendant was not
duly served with the document which instituted the proceedings or with
an equivalent document in sufficient time to enable him to arrange for his
defence;
….
Article 31
A judgment given in a Contracting State and enforceable in that State
shall be enforced in another Contracting State when, on the application of
any interested party, it has been declared enforceable there.
However, in the United Kingdom, such a judgment shall be enforced in
England and Wales, in Scotland, or in Northern Ireland when, on the
application of any interested party, it has been registered for enforcement
in that part of the United Kingdom.
Article 32
1. The application shall be submitted:
….
1. in England and Wales, to the High Court of Justice,….
….
Article 33
The procedure for making the application shall be governed by the law of
the State in which enforcement is sought.
….
Article 34
The court applied to shall give its decision without delay; the party
against whom enforcement is sought shall not at this stage of the
proceedings be entitled to make any submissions on the application.
The application may be refused only for one of the reasons specified in
Articles 27 and 28.
Under no circumstances may the foreign judgment be reviewed as to its
substance.
….
Article 36
If enforcement is authorised, the party against whom enforcement is
sought may appeal against the decision within one month of service
thereof.
….
Article 37
1. An appeal against the decision authorising enforcement shall be lodged
in accordance with the rules governing procedure in contentious matters:
….
(a) in England and Wales, with the High Court of Justice,….
….
2. The judgment given on the appeal may be contested only:
….
in the United Kingdom, by a single further appeal on a point of law.”
The error of procedure
15. The procedure for recognition and enforcement of a judgment
required by the Convention differs from that normal in this jurisdiction
in the following respect. The application for enforcement is made to a
Master without notice to the judgment debtor. Under normal procedure
the judgment debtor would be entitled to apply to have an Order made
in such circumstances set aside. The Convention requires, however, that
he is not allowed to make any submissions on the application, but is to
have a right to appeal. When Mr Maronier’s judgment was registered, the
material provision of the Civil Procedure Rules, sc71.33, provided:
(1) An appeal under article 37 …must be made to a judge by application
in accordance with CPR part 23.
16. The Order obtained by Mr Maronier, which was made by Master Trench
on 14 July 2000, provided:
IT IS ORDERED that the Judgment dated the 30 December 1999 of the
District Court of Rotterdam be registered in the Queen’s Bench Division of
the High Court of Justice pursuant to the Civil Jurisdiction Act 1982.
AND IT IS FURTHER ORDERED that the said Bryan Larmer shall
have liberty within two months after service upon them of Notice of
Registration of the Judgment to appeal against such registration and
execution shall not issue to enforce the Judgment until after the expiry of
that period or until after any such appeal has been determined.
17. This Order was served on Mr Larmer on 10 August 2000 at his home
in Kingston. This was the first notice that he received that the Rotterdam
proceedings had been reactivated.
18. What Mr Larmer should have done, in accordance with the procedure
set out above, was to appeal against this Order to a High Court Judge.
Instead, those acting for Mr Larmer ‘appealed’ to Deputy Master Chism.
He, despite protest from those representing Mr Maronier that he had
no jurisdiction, entertained the appeal and allowed it. He did so on
the ground that it was contrary to public policy in this country for Mr
Maronier’s lawyers, in the circumstances described above, to revive his
case without making any attempt to trace Mr Larmer in order to give
notice of what they were doing.
19. The appropriate course in these circumstances is to disregard the
hearing before Deputy Master Chism as a procedural aberration and treat
the judgment of His Honour Judge Seymour as if it had been delivered
pursuant to a first appeal.
The judgment below
20. His Honour Judge Seymour upheld the decision of Deputy Master
Chism. He reviewed relevant European case precedent, which we consider
below. He expressed his conclusion as follows:
“The right to an effective opportunity to defend oneself in civil as in
criminal proceedings is thus, in my judgment, an important public policy
in England and Wales as throughout the European Union.
On the facts of the present case, Mr Larmer has been denied that right.
I am satisfied on the evidence that he personally is not in any way to
blame for that state of affairs arising. A suggestion by Mr Pryce, that in
relation to an action in which no steps had been taken by the claimant
for five years before Mr Larmer left the Netherlands, he should have kept
the District Court of Rotterdam notified of his address, or kept in touch
with his Dutch lawyers, I regard as fanciful. Mr Larmer’s uncontradicted
evidence is that he notified the City Hall in Rotterdam, and the Dutch
Association of Dentists, of his address in England. In the result, I am
satisfied that the recognition of the judgment of the District Court of
Rotterdam is contrary to the public policy of England and Wales because
the procedures of the Dutch court have made it possible for a very stale
claim to be revived and pursued to judgment without the defendant ever
being aware of what was going on and in circumstances in which he was
not personally at fault, he having every reason to suppose that the claim
had been abandoned.”
The issues
21. On behalf of Mr Maronier, Mr Ralls QC advanced two submissions:
The Judge had erred in carrying out a review of whether Mr Larmer had
received a fair trial before the Rotterdam District Court;
The Judge erred in his finding as to absence of fault. He should have
found that, though Mr Larmer might not be personally at fault, his lawyers
were at fault for withdrawing from representing him without informing
him that the action was being revived. In such circumstances there was
no justification for denying recognition of the judgment.
22. For Mr Larmer, Mr Foy QC contended that protection of the right to
a fair trial, which was a requirement under Article 6 of the European
Convention on Human Rights, was a requirement of public policy in
England. If a defendant had not had a fair trial, then recognition of the
judgment was contrary to public policy. As to the facts, Mr Foy submitted
that the Judge had correctly concluded that no fault lay with Mr Larmer.
The same was true of his lawyers. To conduct the trial when Mr Larmer
was ignorance that it had been revived had violated his right to a fair trial
under Article 6. Quite apart from this, a delay in pursuing the claim for 12
years was an independent violation of that Article.
Public policy and the right to a fair trial
23. Mr Ralls submitted forcefully that Holland, as a party to the Human
Rights Convention, is committed to ensuring that Article 6 is observed.
Dutch courts would automatically have regard for the requirements
of Article 6. It was contrary to the scheme of the recognition and
enforcement provisions of the Brussels Convention for one Member State
to review or ‘second guess’ compliance with Article 6 by the courts of
another Member State.
24. We sympathise with the broad thrust of Mr Ralls submissions. As
the European Court observed in Solo Kleinmotoren GMBH v Boch (Case
C-414/92) [1994] ECR I-2237 at paragraph 20, one of the fundamental
objectives of the Brussels Convention is to ‘facilitate, to the greatest
extent possible, the free movement of judgments by providing for
a simple and rapid enforcement procedure’. This objective would be
frustrated if courts of an enforcing State could be required to carry out a
detailed review of whether the procedures that resulted in the judgment
had complied with Article 6.
25. Court procedures differ from one State to another and the Courts
of this Country should apply a strong presumption that the procedures
of other signatories of the Human Rights Convention are compliant with
Article 6. What we cannot accept is that we must apply an irrebuttable
presumption that a judgment given in another Member State cannot have
resulted from a violation of Article 6.
26. Where the State first seised of a dispute reaches a decision of
substantive law, even if it is a decision on its own jurisdiction, the court
of a State asked to enforce the resultant judgment cannot decline, on
grounds of public policy, to enforce the decision on the ground that it
infringes Community law. As the European Court observed in Regie
Nationale des Usines Renault SA v Maxicar SPA (Case C-38/98) at
paragraph 32: ‘It is for the national courts to ensure with equal diligence
the protection of rights established in national law and rights conferred
by Community law’. There is, however, a distinction in principle between a
decision that resolves an issue of substantive law and a decision reached
by a procedure that violates the fundamental human right to a fair trial.
27. The provisions of Article 27(2) expressly recognise the paramount
importance of one aspect of the right to a fair trial. The trial process
must ensure that the defendant has a fair chance to defend himself. The
court must hear both parties: see Hendrikman v Magenta Druck (Case)
C-78/95) [1997] QB 426 at p.441 paragraph 15 and cases there cited.
28. In Krombach v Bamberski (Case C-7/98) [2000] TLR 247 the
European Court considered an objection under Article 27(1) to the
enforcement in Germany of an award of damages made, following the
conviction of the defendant at a criminal trial in Paris. The Defendant
declined to attend the relevant hearing in person, but sought to be legally
represented at the hearing. He was not allowed to do so. He challenged
enforcement of the subsequent award of damages on the ground that
he had been denied a fair hearing in violation of his Article 6 rights. The
Bundesgerichtshof sought a ruling on whether this was a matter to which
it could legitimately have regard under Article 27(1). At paragraphs 25
and 26 of its judgment the Court observed that:
“The Court has consistently held that fundamental rights form an integral
part of the general principles of law whose observance the Court ensures.
For that purpose, the Court draws inspiration from the constitutional
traditions common to the Member States and from the guidelines supplied
by international treaties for the protection of human rights on which the
Member States have collaborated or of which they are signatories. In that
regard, the European Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter the ECHR) has particular significance.
The Court has thus expressly recognised the general principle of
Community law that everyone is entitled to fair legal process, which is
inspired by those fundamental rights.”
29. The Court went on to hold at paragraphs 42 to 44:
“…it follows from a line of case-law developed by the Court on the
basis of the principles referred to in paragraphs 25 and 26 of the
present judgment that observance of the right to a fair hearing is, in all
proceedings initiated against a person which are liable to culminate in
a measure adversely affecting that person, a fundamental principle of
Community law which must be guaranteed even in the absence of any
rules governing the proceedings in question.
The Court has also held that, even though the Convention is intended to
secure the simplification of formalities governing the reciprocal recognition
and enforcement of judgments of courts or tribunals, it is not permissible
to achieve that aim by undermining the rights to a fair hearing.
It follows from the foregoing developments in the case-law that recourse
to the public-policy clause must be regarded as being possible in
exceptional cases where the guarantees laid down in the legislation of
the State of origin and in the Convention itself have been insufficient
to protect the defendant from a manifest breach of his right to defend
himself before the court of origin, as recognised by the ECHR. ”
(We have omitted the authorities cited in support of these propositions)
30. It is thus clear that, in an exceptional case where the procedure of
the court first seised has resulted in a defendant being prevented from
putting his case to the court, Article 27(1) of the Brussels Convention can
justify a refusal to enforce the resultant judgment on grounds of public
policy.
Fault
31. Mr Ralls submitted that Mr Larmer’s predicament in this case was
attributable to breach of duty on the part of de Bliek Linssen in failing to
inform Mr Larmer that the Rotterdam proceedings had been reactivated.
This submission was based on a complaint made by Mr Larmer in his first
witness statement. He stated that he had been in correspondence with
Mr Linssen about another matter in 1991. Thus Mr Linssen should have
been aware of his English address. Alternatively he should have obtained
this from the Rotterdam Town Hall. Mr Larmer alleged of the firm ‘Being
lawyers acting on my behalf and being on the Court record in the matter
they owed me a duty of care to undertake such enquiries’.
32. We would not conclude on the evidence before us that the two
partners of de Bliek Linssen retained, or were under a duty to retain, Mr
Larmer’s address over the 12 years that elapsed since the Rotterdam
action was stayed, or that they were under a duty to seek out his address
in order to inform him that the proceedings had been reactivated. We
note that Mr Jacobs makes no such allegation. He simply comments that
‘it is clear that if Mr Larmer believes Mr de Bliek wrongly withdrew from
the case the Defendant’s recourse lies in an action against Mr de Bliek for
damages sustained by him as a result’
33. As we have noted above, Mr Jacobs’ understanding was that Mr de
Bliek withdrew because he could not obtain any instructions from his
client. He added:
“The matters referred to by Mr Larmer in relation to the lack of attention
given to this matter by his own lawyers is not a matter which can concern
the Claimant. When a solicitor withdraws from proceedings on behalf of a
party in Holland, this is entirely at the risk of the party represented. Dutch
law does not demand any action from the other party, neither from the
Court. If no new solicitor is appointed on behalf of the party in question,
the proceedings will continue without the party.”
CONCLUSIONS
34. The facts of this case have some similarities to those considered by
the European Court in Debaecker v Bouwman (Case 49/84) [1986] 2
CMLR 400. That case concerned the application of Article 27(2) of the
Brussels Convention. A tenant of business premises in Antwerp suddenly
left leaving no forwarding address. The landlords issued a summons,
claiming damages for breach of the lease, which was duly served on the
tenant in accordance with Belgian procedural rules by being delivered to
the Antwerp police headquarters. The tenant then wrote repudiating the
lease and leaving a contact address. The landlords did not contact the
tenant, but entered judgment in default, relying on the fact that service
had been validly effected under Belgian law. The landlords sought to
enforce their judgment in Holland. The Hoge Raad sought the decision of
the European Court on a number of questions including whether, for the
purposes of Article 27(2), the adequacy of service fell to be considered
having regard to the facts existing at the time of service, or whether it
was legitimate to have regard to subsequent events. In particular, the
Court was asked whether the plaintiff could be required, as a result of
events which took place after service, to take further steps to inform
the defendant of the pending action or whether the fact that it was the
defendant’s own fault that he was not served personally prevented the
court from having regard to events after service was effected.
35. The Court held at p.422 that the Convention did not impose any
obligation on the plaintiffs to take steps to alert the defendant to the
proceedings once service had been effected. It continued, however:
“The failure to take such steps is in reality merely a factor which must be
taken into account in order to establish whether service was effected in
sufficient time.
Seen in that light, the fact that the plaintiff, after service, learns of the
defendant’s new address does not compel him to take any further steps,
but renders his subsequent behaviour important for the purpose of
determining whether service was effected in sufficient time. By notifying
the defendant at his new address, the plaintiff ensures that the court in
which enforcement is sought cannot decide that the defendant’s change
of address is an exceptional circumstance which prevents the service
effected at his former address from being regarded as having been
effected in sufficient time.”
36. There is much that we find surprising about the present case. We
find it surprising that the procedure of the Rotterdam Court permitted Mr
Maronier to reactivate an action that had been stayed for 12 years without
requiring fresh service of an appropriate process to be effected on Mr
Larmer. We find it surprising that full interest was awarded to Mr Maronier
for the whole of the period of the delay, which appears to have been
entirely of his own making. We find it surprising that, having regard to the
fact that Mr Larmer was unaware that the action had been reactivated,
the three month limit for appealing renders the judgment ‘unassailable’
without the court apparently having any discretion to reopen the matter.
We are, however, acutely aware that, as we demonstrated early in this
judgment, there are many matters which are unclear on the evidence and
nothing that we have said should be taken as criticism of the Rotterdam
District Court or the procedure that it was applying.
37. It may well be that in a normal case, a defendant to an action in
Holland should continue to retain lawyers to act on his behalf in relation to
proceedings which have been stayed. This is not, however, a normal case.
We feel sure that a stay lasting 12 years of a simple claim for medical
negligence must be quite extraordinary. On the basis of the facts before
us, we are driven to the conclusion that Mr Larmer was denied a fair
trial in Rotterdam because he was unaware that proceedings had been
reactivated until even the time for an appeal had passed. It may well
be that Dutch procedure did not require Mr Maronier to ensure that Mr
Larmer received notice of the reactivation of the action. Mr Linssen’s
letter of 24 July 1998 and Mr de Bliek’s withdrawal from representing
Mr Larmer put Mr Maronier’s lawyers on notice that Mr Larmer was
probably unaware of the fact that the action had been re-activated. Dutch
procedure appears to have permitted the action to proceed without the
presence of Mr Larmer or anyone representing him. The consequence is,
nonetheless, that he has manifestly not received the fair trial that Article
6 of the Human Rights Convention required.
38. On the, happily, unusual facts of this case we are in no doubt that
the Judge was correct to conclude that it would be contrary to the public
policy of this country to enforce Mr Maronier’s judgment. Accordingly, this
appeal will be dismissed. (…)“