JUDGMENT
THE DEPUTY JUDGE:
[1] This case calls for me to decide whether an order made in a French
court on 24 September 1991 is capable of being registered in the English
High Court pursuant to the Civil Jurisdiction and Judgments Act 1982, that
is, the 1982 Act.
[2] The case involves questions of European law which do not seem to
have been decided or even canvassed hitherto in litigation within the
European Community. It came before me in chambers on an appointment
originally estimated to last only half a day but it rapidly became clear that
important and difficult questions of principle were involved and in the end,
with full encouragement from the bench, the argument extended over
more than three days. In view of the potential importance of the matter in
issue to a wide range of litigants I am giving my judgment in open court.
Only one of the five parties who have been represented before me has
had objections to raise to my so doing.
[3] The present issue arises in connection with litigation which has
been proceeding in France in the Commercial Court of Nanterre. The
litigation relates to a substantial office building in central London which
has recently been constructed and in respect of which problems appear
to have arisen referable to the curtain walls. I infer that the problems are
potentially major and expensive ones, if only because there are 15 parties
to the French litigation. The plaintiff, itself a French limited company, was
concerned with the design, supply and installation of the curtain walls and
the defendants had the following bases and roles.
[4] The first defendant, in common with the second and fourth
defendants, is based in England and was the main contractor for the
building, albeit that above the main contractor there came the third
defendant, described in the judgment as le maitre de l'ouvrage whose
parent company, the second defendant, is also joined in the proceeding.
The fourth defendant is the firm of architects involved in the construction.
Defendant five, a French firm, had responsibility for drawings and for
controlling compliance with the contractual specifications. Defendants
six to 11 were all concerned with the manufacture and/or supply and in
one case also the design of various materials or component parts used
in the curtain walls; these defendants being respectively another French
firm, three more French limited companies, a Dutch and then a Belgian
company. Defendants 12 and 13 were concerned with subsidiary parts of
the installation, each of these defendants being French. Finally, there is an
intervener defendant 13, a Belgian company which appears to wish to be
substituted in the proceedings for defendant 11. Defendants ten and 12
have either not appeared or are not yet represented in the litigation.
[5] On and following 9 September 1991 the plaintiff initiated summary
procedures in France to have an expert appointed by the court. It is
not clear from the judgment of the French court, and there has been
nothing in the evidence or the argument to inform me, whether this is
the date when the French litigation began. What is clear enough is that
the litigation is still at a preliminary stage; the plaintiff asserts that the
building has been completed but that the first and third defendants,
following the advice of the architects, refused to accept the building;
and there is asserted a series of complaints about the building in the
judgment which, if established, relate to the curtain walls as a whole and
the various aspects of them for which the fifth and following defendants
were responsible. There are also allegations of delay in completion.
[6] At the time of the judgment, 15 days after the plaintiff's original
application, the main contractor had expressly reserved its position in a
number of respects and I am told that there may be a challenge hereafter
to the jurisdiction of the French court to involve the maincontractor in the
proceedings, although this point does not emerge with any clarity from
the terms of the judgment.
[7] The order which the French court made sounds eminently practical
and sensible if it works as intended. I shall summarise its effect at this
stage. Two experts are appointed at a relatively modest fee; they are
to go to the building and inspect the works, to listen to people with
information to give, and to get hold of all the documents they need for
their mission. Then they have to decide whether the works conform
with contract specification and proper practice, to identify any defects
or omissions and the cause of these and to declare whether these,
presumably in the experts' opinion, justify the third defendant's refusal to
accept the work. If they declare the work acceptable they are to advise on
the conditions subject to which it should be accepted and if unacceptable
to say what needs to be done to make it acceptable. They are to give
views on responsibilities for the state of the works and on whether
loss and damage has occurred. They are to consider the contractual
programme and the progress of the works and, if they establish that there
were delays, to say who in their opinion was responsible for them, and to
settle accounts between the various parties.
[8] In case of some emergency or danger that the experts identify the
plaintiff is authorised by the court to have the necessary work carried out,
at its own expense in the first instance, but ultimately for the account
of the party held liable; and the experts have to file a preliminary report
about this emergency work with the court, and there are certain other
provisions with regard to such work. The experts are finally enjoined,
before carrying out any such mission, to approach the parties in an
attempt at mediation with a view to the amicable resolution of matters in
dispute.
[9] It was said in the course of argument that this last provision was a
plain breach of Article 240 of the French Civil Code. I do not believe that
a submission of that kind can be the concern of the judge of an English
court at this stage of these proceedings. The experts are told, somewhat
optimistically, to produce a preliminary report within a month and a final
report within two months. As I have indicated, if all parties co-operated
with the experts in the carrying out of their mission, the order in question
could result in an enviably swift and economical disposal of a dispute
which is potentially very complex and costly.
[10] The order concerns an English building and the plaintiff has brought
the order to England with a view to its registration, and has duly obtained
such an order ex parte from Master Murray. As will presently emerge,
the process of registration is intended to be a very swift and summary
procedure. The law which governs the matter is laid down primarily in
the 1968 Convention on Jurisdiction and the Enforcement of Judgments
in Civil and Commercial Matters which, in its form as amended on the
accession of the United Kingdom to the European Economic Community,
is given the force of law in the United Kingdom by virtue of the 1982
Act. The text of the 1968 Convention was incorporated in the Schedule
to the 1982 Act, but I have to remind myself for all the purposes of this
judgment that the English text is only one version of a convention which
is repeated in a number of different European languages, all of which
are of equal force and authority. In this as in every other investigation of
European law, it is necessary to avoid approaching my task by reference
to the mere language and technical construction of the English text.
My task will be to decide the scope and the application of the relevant
provisions of the Convention.
[11] It will be convenient to begin in the middle of the 1968 Convention
with a review of registration procedures. Article 31, which appears at the
head of Section 2 of Title III under the headline of 'Enforcement,' reads,
so far as material:
'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, the order for its enforcement has been issued there.
However, in the United Kingdom, such a judgment shall be enforced in
England and Wales... when, on the application of any interested party, it
has been registered for enforcement in that part of the United Kingdom.'
[12] By Article 32 application is submitted in England and Wales to the
High Court, with separate special provision being made for a maintenance
judgment. There are provisions for determining the jurisdiction of local
courts. No argument has been directed to these.
[13] Article 33 stipulates that the procedure for making the application is
governed in England by the law of England. Certain documents required
by Articles 46 and 47 have to be attached to the application, as they were
in the present instance. The impossibility of furnishing such documents
in the important European case of Denilauler v. SNC Couchet Freres
contributed in some degree to a decision by the European Court of Justice
that ex parte orders do not fall within the scope of the recognition and
enforcement provisions of the 1968 Convention.
[14] Article 34 should be read in full:
'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 submission 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.'
One can incidentally see the relevance of Article 34 to my refusal to
entertain a submission based on Article 240 of the French Civil Code.
[15] I can pass over Article 35. Article 36 allows the party against whom
the enforcement is sought to appeal against a decision authorising
enforcement within one month of service of the decision. In the case of a
party domiciled outside the local jurisdiction two months from the date of
service are allowed. No extension of time may be granted on account of
distance.
[16] There are two points to mention with regard to Article 36. The first is
that the fourth defendant, having issued its summons within one month
of service, failed to serve the summons within that time and was some
13 days out of time with service. The other three defendants lodged their
appeals in time and the plaintiff takes no point on the lack of diligence of
the fourth defendant. This matter has come quickly before the court; all
the parties are here; no delay has been caused by the error of the fourth
defendant. I therefore grant leave to it to appeal out of time.
[17] The second point is that as regards defendants five to 14 the time
for appealing Master Murray's order may well not have expired at the time
when the hearing of these appeals began and indeed as regards one or
more might even not have elapsed as I give judgment. The point was not
brought up during argument and I can say no more about it.
[18] Nothing turns on Article 37, except that the only contest which is
allowed for my present decision is a single further appeal on a point of
law; and Article 38 has not been relied upon for present purposes.
[19] Under Article 39, the present appeals having been brought, no
measures of enforcement may be taken in respect of the order of the
French court other than protective measures taken against the property of
the party against whom enforcement is sought.
[20] I note from Article 40 and 41 that where ex parte registration of a
judgment is refused, an appeal from that refusal takes place inter partes
and again there is a single further appeal on a point of law. Article 42 is
interesting:
'Where a foreign judgment has been given in respect of several matters
and enforcement cannot be authorised for all of them, the court shall
authorise enforcement for one or more of them. An applicant may request
partial enforcement of a judgment.'
An applicant for enforcement of a foreign judgment may not be required
to provide security on the grounds, for instance, of residence outside the
jurisdiction (see Article 45).
[21] The appeals were presented in the order in which they were initiated,
with the second and third defendants opening the attack, the first
defendant following after, and the fourth defendant bringing up the rear.
The arguments have been skilful, knowledgeable and comprehensive on
every side and I am much indebted to counsel for the care with which
each side's case has been conducted.
[22] The three sets of appellants take slightly different grounds of appeal.
In the case of defendants two and three it is contended, in effect, that
the French judgment generally is not within the scope of the 1968
Convention and alternatively, in so far as the judgment requires those
defendants to provide copies of documents or to make witnesses available
for examination of questioning by the experts, it is outside that scope.
The first defendants takes this line:
1. That the French order or part of it is not a judgment within the
meaning of the 1968 Convention.
2. That the order is not susceptible to recognition and/or enforcement in
the United Kingdom.
3. That recognition of the order is contrary to the public policy of the
United Kingdom.
The fourth defendant takes only the first ground relied upon by
defendants, two and three.
[23] Predictably, in presenting the arguments each defendant was minded
either to canvass or at least to adopt the full range of contentions made
by each other defendant. This course was not objected to nor could
it sensibly be by the plaintiff. However, the divergences at the outset
between the ways in which the various defendants approached the issues
served to underline the difficulties of the court in bringing the problems
and their solution into focus.
[24] I turn back for a moment to the 1982 Act. Section 4(3) is important:
'A judgment registered under this section shall, for the purposes of its
enforcement, be of the same force and effect, the registering court shall
have in relation to its enforcement the same powers, and proceedings for
or with respect to its enforcement may be taken, as if the judgment had
originally been given by the registering court and had (where relevant)
been entered.'
For practical purposes and even though there may be difficulty in
understanding the language of the judgment, which will not be in English,
a judgment once registered has the same effect as if pronounced on its
original date by the English court. 'Judgment' has the same meaning as is
given by Article 25 of the 1968 Convention whose language is, as will be
seen, very wide.
[25] Section 3 of the 1982 Act is crucial for it deals with interpretation
of the 1968 Convention. Section 3(1) and (2) requires meaning and
effect to be determined in accordance with the principles laid down by
the European Court, with judicial notice to be taken of any decision of
the European Court. I have already reminded myself of some of the
implications. Very significantly, by section 3(3) the reports by Mr. P.
Jenard on the 1968 Convention and the 1971 Protocol and by Professor
Peter Schlosser on the Accession Convention may be considered in
ascertaining the meaning or effect of any provision of the Conventions,
and shall be given such weight as is appropriate in the circumstances.
[26] It is the Schlosser Report which lies at the heart of the defendants'
case. In paragraph 187 he reaches the conclusion that:
'Interlocutory decisions which are not intended to govern legal
relationships of the parties but to arrange the further conduct of the
proceedings should be excluded from the scope of Title III of the 1968
Convention.'
[27] Reduced to its bones, the principal case for the appellants is
this. It is appropriate to classify as procedural those decisions which
Schlosser says should be excluded from the scope of Title III and as
substantive those judgments which either determine or regulate the
legal relationships of the parties, adopting the phrase from Schlosser's
paragraph 184. When you look at the French order by this criterion, say
the defendants, it is procedural and therefore excluded. Alternatively,
those parts of the order which deal with evidence and documents are
procedural and by virtue of Article 42 that much of the order is incapable
of registration. This is a subsidiary contention.
[28] The plaintiff's case is attractively simple. The order of the French
court is a judgment within the meaning of Article 25; it is made
recognisable by Article 26; recognition is not defeated by any ground
within Article 27 or 28; therefore it must be recognised with a view to its
enforcement.
[29] Before proceeding with other matters I shall briefly review these
articles.
'For the purposes of the convention under Article 25 "judgment" means
any judgment given by a court or tribunal of a contracting state, whatever
the judgment may be called, including a decree, order, decision or writ of
execution.'
And I can stop there.
[30] The reasons for a judgment, for which in England we use the same
word, form no part of 'judgment' as defined, but the definition is plainly
wide enough on its face to include any procedural order or decision in civil
or commercial litigation.
[31] Article 26 provides that a judgment given in a Contracting State
shall be recognised in the other Contracting States without any special
procedure being required and the Article goes on to deal with litigation
involving issues of recognition. It is tempting to suggest that there may
be judgments as defined in Article 25 which are susceptible of recognition
even though incapable of enforcement but no specific argument was
addressed to the point and it may well not be open in the face of the
Denilauler case. Indeed Jenard observes that recognition must have
the result of conferring on judgments the authority and effectiveness
accorded to them in the State in which they were given. It is clearly safest
to treat questions of recognition and enforcement as being inextricably
intermixed.
[32] The only ground within Article 27 which arises for consideration in
respect of the French order is the first, that is:
'A judgment shall not be recognised if such recognition is contrary to
public policy in the state in which recognition is sought.'
[33] This is one of the few areas of the Convention where a reference to
purely domestic law is appropriate. At this stage I shall emphasise only
that it is recognition of the judgment which has to be contrary to domestic
policy and there are, I imagine, clear limitations upon the extent to which
public policy can be invoked. It almost amounts on looking at the foreign
judgment, to the court addressed concluding that this is not a judgment
which the court can in conscience recognise and enforce; and I would
expect an objection founded on public policy to be more likely to fail than
to succeed. Historically this seems to be the case.
[34] Article 28 is not of direct significance in the present case as none
of the grounds of non-recognition available under it can be advanced.
I note only that subject to inapplicable exceptions the jurisdiction of
the originating court may not be reviewed, and that the public policy
argument may not be applied to the rules relating to jurisdiction. Finally I
note from Article 29 that in no circumstances may a foreign judgment be
reviewed as to its substance.
[35] Adverting for a moment to the first defendant's opening ground
of appeal, subject to one point which will be considered in a moment
I can see no reason for not regarding the French order as a judgment
within the meaning of Article 25. That Article forms part of Title III but
it is introductory to the sections on recognition and enforcement; hence
the French order may be a judgment within Article 25 as a matter of
definition and still fall outside the scope of Title III. This is in line with the
Denilauler decision and the conclusion in no way weakens the force of the
first defendant's argument on its second ground of appeal.
[36] There are, however, a number of other arguments which if correct
will win this appeal for the defendants. One such argument, advanced
primarily by the main contractor, is a further submission that the French
order is not a judgment within Article 25 because Article 1 of the 1968
Convention itself excludes the French order from the scope of the
Convention. That Article applies the Convention to civil and commercial
matters excluding Revenue, Customs and administrative matters followed
by four specific further categories of exclusion.
[37] Before the accession of the United Kingdom Article 1 was much
simpler because, it seems, the founder members of the European
Community were well aware of the ambit of civil and commercial matters.
Lines of demarcation are less clear cut in English law and it was important
for the Convention to spell out what was not included. It was not sought,
and this is obviously right, to argue that when the court makes procedural
orders in the course of civil litigation they come directly within the term
'administrative.' The argument was put in this way, that procedural
directions by the court are a matter between the litigants and the State
and, in that sense, an aspect of public law which falls outside the private
field to which civil and commercial matters relate. I cannot accept that
contention; I regard it as plain that procedural directions form part of the
civil matter to which they belong.
[38] It was argued with much more force that if the French order
constituted a judgment within the language of Article 25 it was by its
nature contrary to the public policy of the law of England and accordingly
excluded from recognition by Article 27(1). In support of this contention
my attention was drawn to the Hague Convention and to the 1975 Act,
which implements this convention in England, and in some respects goes
well beyond it.
[39] The case of Re Westinghouse was relied upon to explain the effect
of that Act and to show that the mission of the experts under the French
order was a process of gathering evidence. Also strongly relied upon was
the contention that the terms of the order were such as to affect third
parties, and that it was quite unacceptable, within the principle laid down
by the Court of Appeal in Babanaft International Co. SA v. Bassatne, for a
foreign court to make an order which required or might be read by third
parties as requiring persons in England who are not party to the foreign
proceedings to take or, I suppose, refrain from taking steps at the order
of the foreign court. These are two different aspects of the public policy
argument, one general and one specifically related to the terms of the
French order.
[40] As regards the general argument it is, in my judgment, far
too parochial. If I assume for this purpose that Title III of the 1968
Convention dealing with recognition and enforcement of judgments
applies to the French order, so far as it gives directions relating to
documents, evidence and so on, then the primary public policy of any
member nation of the European Community would be to give effect to
the 1968 Convention. I do not see how the public policy of the United
Kingdom could operate to reject a significant area of recognition and
enforcement which by acceding to the 1968 Convention the State had
elected to accept or adopt. If it be urged that other Contracting States
would take a similar view of public policy the answer is this; that the
incompatibility of the Hague Convention with the recognition of such
procedural judgments, if there is indeed such incompatibility, may be
a reason for deciding that those judgments are not within the scope of
Title III, but not for deciding, once they are within the scope, that public
policy forbids their recognition. Seen in this way the general public policy
argument is really no more than an element of the Schlosser conclusion, if
right. I shall of course return to this matter later.
[41] I reject the specific argument based on public policy for two reasons.
First, I do not believe that the Babanaft case itself can be extended in the
way that is argued so as to apply to the order of the French court. In so
concluding I have in mind all the passages that were cited to me from
Kerr L.J., from Neill L.J. and from Nicholls L.J. I do not think that the case
gives guidance at all to the attitude that the English court would take to a
foreign order whose enforcement is sought in England even in the field of
Mareva type injunctions, let alone those of a different character.
[42] Secondly, even if the Babanaft decision can be so applied and
should be taken to bar the enforcement of a foreign judgment affecting
third parties in England, I do not understand how the language of the
French order, whether or not registered in English, could be construed
by someone in England who is not a party to the French proceedings as
obliging him to do anything. For other purposes the defendants have
strongly urged on the Court, and with some persuasive force, that the
French order does not oblige the parties themselves to do anything. If the
experts in the course of their mission ask questions or seek documents
from third parties it is plain that whatever they get will be volunteered.
[43] There is a much more difficult contention related to the 1970 Hague
Convention and the 1975 Act although it does not necessarily affect
the entirety of the French order. The contention involves consideration
of Article 57 of the 1968 Convention which, in terms which may be
conceptually difficult for some lawyers, preserves the validity of other
conventions to which member nations of the Community are or will
become parties. The Hague Convention 1970 is one of those that Article
57 has in contemplation, and I find it easy to agree with Professor
Schlosser that the Hague Convention takes precedence over the 1968
Convention. Where a specific subject matter is dealt with in a separate
convention it can be readily understood as a matter of philosophy that the
signatories to the 1968 Convention intend the other convention, whether
already in existence or subsequently to come into existence or to become
binding on member nations, to take precedence.
[44] What the plaintiff says in answer to this argument is that Article 57
applies to a situation of overlap and I think what is meant by that is the
two conventions dealing with identical subject matter. In amplification the
plaintiff contends that the Hague Convention and the 1975 Act do not deal
with matters of jurisdiction but only with methods of obtaining evidence,
documents and so on.
[45] On the other side, the defendants say, and I think they must be
right in this, that the 1970 Hague Convention is the foundation for the
extensive jurisdiction which the subsequent Act gives to the English court
to deal with requests from abroad to assist with obtaining evidence,
documents and the other matters with which the Act deals in aid of
foreign litigation, whether originating within or outside the European
Community. Be it noted that the 1975 Act is careful to lay down protection
for third parties whose participation is required for the purposes of the
foreign court; and the defendants point to the absence of equivalent
protection in case the French order, or some other procedural order upon
registration, affects and imposes some obligation upon third parties.
[46] It is necessary, therefore, on the plaintiff's argument for procedural
judgments to be capable of registration, and to co-exist where
appropriate with the 1975 Act procedures, notwithstanding the overlap of
jurisdiction.
[47] These further considerations arise. First, the 1975 Act extends to
foreign countries generally; there are no special rules which apply to
signatories to the Hague Convention. Secondly, Professor Schlosser does
not come down against co-existence per se; he gives reasons why the
problem that I am considering has not arisen among the original member
countries, and suggests that when it comes to matters of obtaining
evidence and so on the Hague Convention procedures will ordinarily be
used and no difficulty will exist. Next, it should be noted that not all the
member nations of the Community are signatories to the 1970 Hague
Convention. Belgium is not, neither is Greece; independent arrangements
no doubt exist as regards these countries. Irrespective of that, the 1975
Act will potentially aid litigants there, but the Article 57 argument would
have to be applied differently in the case of those states if available at
all. Finally it can be assumed that neither the English court nor any other
court of a Contracting State would, save under the strictest safeguards,
enforce against a person not party to the proceedings an order of the
court which that person had had no opportunity to challenge. Such an
order would probably be incapable of registration if it originated abroad,
under the Denilauler principle. It is conceded by all the parties that the
Denilauler case has no direct application to the present one.
[48] The matters just reviewed are equal pointers to the conclusion
that Article 57 does not of itself prevent the French order from being
registrable. I turn back, therefore, to what has been identified as the
key question in the case: are orders of the character of the French order
outside the scope of the provisions of Title III dealing with recognition and
enforcement?
[49] The defendants here unite in urging me to adopt a purposive
approach to the 1968 Convention. In essence they say that it is clearly
outside the purpose of the Convention to provide for the enforcement
of procedural directions and the like, which are substantially incapable
of enforcement except by the foreign judge who is seised of the whole
proceedings. The plaintiff predictably takes a more literal approach.
Counsel points to Article 25 and asserts that the court is bound to view
the French order as a judgment. He then points to Article 31 and says
that the only forum where enforceability is relevant is the originating
court and that there is no issue as to enforceability there, which appears
on the face of the documents required to be put before the English court
not least in the final part of the judgment itself. That argument gains
strong support from the opening language of Article 31 but gives little
weight to the point that Section 2 is all about enforcement within the
jurisdiction of the court addressed.
[50] At this point I want to look briefly at Article 24. This contemplates
proceedings in courts outside the jurisdiction of the originating court
which are brought exclusively for relief in aid of the main litigation. The
1982 Act caters for this possibility by the provisions of section 25 which in
turn excludes from its ambit warrants of arrest of property and provisions
for the obtaining of evidence, plainly because these are dealt with by
other statutory codes.
[51] The defendants accept, rightly, I am sure, that Article 24 jurisdiction
can be invoked in parallel with the registration of a foreign judgment. I
consider, too, that in a suitable case the jurisdiction can be invoked in
parallel with procedures for the obtaining of evidence in accordance with
the Hague Convention and the 1975 Act.
[52] In addition to considering the Schlosser Report all parties have
prayed in aid passages in the Jenard reports. The plaintiff relies on Jenard
to stress the importance of the free movement of judgments throughout
the European Community and stresses the absence of any commentary
at the date of those of those reports to mirror the analysis of Professor
Schlosser in paragraphs 184 to 187; that is to be found at the opening
of Chapter 5 on Recognition and Enforcement in the passage indexed in
O'Malley and Layton. Yet was any such commentary appropriate, given
the general similarity of the legal systems of the founder members?
[53] The defendants urge that attention be paid to these words from the
begining of Section IV:
'The ideal solution would certainly have been to apply the Convention to
all civil and commercial matters. However, the Committee... limited the
scope of the Convention to matters relating to property rights...'
and the reasons for that are given, primarily the absence of an overall
solution to the problem of conflict of laws. That is found in O'Malley and
Layton.
[54] The need for simplicity and speed and the comprehensiveness of
the Title III code for enforcement was adverted to on all sides, and the
Calzaturificio Brennero and the Deutsche Genossenschaftsbank were cited
in support of the propositions which are fairly obvious in themselves.
There was also cited Van Dalfsen v. Van Loon, to illustrate the limited
jurisdiction of the court addressed to relieve against the provisions of an
order the subject of recognition and enforcement, in a case where relief
had been or might have been applied for in the court of origin.
[55] I have gained only limited assistance from the citation of authority
other than the Denilauler case. Certainly, if simplicity is the main criterion,
it is far simpler to adopt the plaintiff's expedient of recognising and
registering any judgment which does not fall foul of Article 17 or 28, than
to recognise a distinction between procedural decisions and substantive
ones so as to enforce only the latter. Scrutiny of the present French order
highlights the difficulty. Is the direction for experts to inspect the building
and for the plaintiff conditionally to have work carried out to the building
procedural or substantive?
[56] Before answering this question, which has to be addressed if I rule
generally in favour of the defendants, I want to examine the enforceability
of the French order outside France, which has been the subject of much
debate. The way in which the English court enforces procedural orders
was much discussed; the use for example of 'unless' orders or debarring
orders and the scant use, indeed the inappropriateness in a procedural
context, of powers of sequestration and committal for contempt.
[57] A European Court would have much wider knowledge than is
available to an English judge of the no doubt very different procedures
which are used by other courts in the European Community. What is
evident is that the court which is seised of the main proceedings will have
far greater opportunity, whether by disciplining the parties or otherwise,
to secure the enforcement of its procedural orders than a foreign court
would have; looked at broadly, that is to say, for, if one were to suppose
in the instant case that a visit by the experts to the office building was
to be physically obstructed in some way, it might be far easier for the
English court on the spot to determine whether one of the parties was
responsible than for the French court to do so at long range. I envisage
that whichever view I take of the scope of the Convention at the end of
the day anomalies will emerge.
[58] One such possible anomaly came to light when I asked what would
happen if the court on an ex parte application registered a judgment
which was incapable of registration, nobody appealed, and the plaintiff
took steps to enforce the judgment well after time for appeal and expired.
The defendants' answer was that the court would, in the inherent exercise
of its jurisdiction, take note of the irregularity and decline to enforce
the judgment in practice. This may be right, but it comes very close
to the plaintiff's proposition that it is not for the English court to ask
questions at the stage of registration and that it is only when enforcement
in England is actually sought that the court looks at the extent to which
the registered order is enforceable.
[59] This submission was backed with powerful illustrations of judgments
which would unequivocally be registered in England but very difficult
to enforce: for instance, so it was said, a mandatory order made by a
foreign court of which the English court might have taken the view at
the outset that the order was too difficult to police. I have had to be
careful not to be drawn too far down this route. Registrability cannot
properly be determined by an English court's view at the time of the
application to register of the practicability of enforcement in England,
although it may well fall to be determined, as a matter of principle at that
date, in the light of the general practicability of enforcing orders of that
character throughout the territories of the Contracting States outside the
jurisdiction of the court of origin. This reminder brings one back to the
underlying requirement to determine the scope of the 1968 Convention.
[60] I must acknowledge that in the course of the argument my mind has
wavered back and forth between one side's case and then the other's. A
number of textbook citations have been made. I have considered these.
I have considered footnote 45 on page 663 of O'Malley and Layton and
I have looked at the report of Lord Maxwell in Scotland. All these carry
the matter little further. They all go back to the Schlosser Report as
the source of, and fundamentally the only reason for, the defendants'
arguments. The Schlosser Report had, however, been published by the
time the 1978 Accession Convention was signed. Should I therefore follow
or must I express my dissent from this part of the Schlosser Report?
[61] In giving my final answer I look to see whether there is a divergence
of approach between the Jenard and Schlosser reports each of which
deals with the scope of the Convention. For my part the key that unlocks
the door that leads to the solution is Jenard's proposition that the
Committee limited the scope of the Convention to matters relating to
property rights. It seems to me that if Jenard at that stage had been
specifically asked, 'Do you therefore regard the scope of the Convention
as extending to interlocutory decisions which are not intended to govern
the legal relationships of the parties but to arrange the further conduct
of the proceedings?' his answer would have been, 'No, not unless those
decisions affect the property rights of the parties.' I have therefore, with
much hesitation, reached this conclusion: that interlocutory decisions
in the course of civil and commercial litigation which do no more
than regulate procedural matters and which neither govern the legal
relationships of the parties nor affect their proprietary rights are outside
the scope of the recognition and enforcement proceedings of Title III of
the 1968 Convention
[62] As I have indicated previously, the conclusion that I have recited by
no means leads to a simple, clear cut solution of the right way in which to
deal with this order of the French court. How does a judge in considering
an order which is or may be procedural arrive at a simple view of whether
to recognise the whole order or, failing that and pursuant to Article 42,
some part? My answer is this, that a judgment within the meaning of
Article 25 requires recognition and enforcement unless it is clear to the
court addressed that the decision is one that does no more than regulate
procedural matters in accordance with the test set out above.
[63] Prima facie, then, any order of the court or tribunal of another
Contracting State in a civil or commercial matter requires recognition and
enforcement. Recognition will only not be accorded to such parts of the
order as can clearly be seen to constitute procedural matters of the kind
described. Only, I believe, if the test is applied in this decisive way can the
policy of the Convention to procure the swift and summary recognition of
judgments between all Contracting States be implemented.
[64] Applying the test just recited to the French order under
consideration, there are parts of it which can clearly be seen to be
procedural but I cannot clearly so conclude as to the whole. In so far as
the experts are appointed to visit the office building, and in so far as the
plaintiffs are authorised under certain conditions to carry out or cause to
be carried out works to the building I cannot be clear that these orders do
not, according to their tenor, govern the legal relationships of the parties
or affect their proprietary rights. I do not believe that it matters in this
connection that if, for example, it becomes appropriate for the plaintiff to
carry out work to the building some recourse might be had to the court
of origin for amplification or modification of the order made. By the same
token it might be convenient for the plaintiff or another of the parties to
bring before the English court some ancillary proceedings in aid. In either
case the recognition and therefore possible enforcement of the origin
order will not be prejudiced.
[65] Subject, therefore, to any further submission of the parties
consequent upon this judgment of mine I hold that the following parts
of the French order do not fall to be registered: first, from, 'Entendre
toutes personnes informees...' on page 7 of the order to '... faire les
comptes entre les parties' on page 8. Secondly, from 'Disons qu'avant
d'entreprendre...' to '... Reservons les depens...' again on page 8. To this
extent the appeals must be allowed.
[66] I add only one further observation. In so far as I have reached the
conclusion that the French order is not registrable I must not be taken
to have assented to the proposition put forward by the defendants that
there would therefore be some illegality or impropriety in the French
experts carrying out the full mission laid down by the French court. I
believe that the legal position is simply this, that to the extent that the
order is not registrable the parties can, for the time being, look only to
the French court for control or guidance as to its implementation. To the
same extent, the English court is unable to adopt the order as an order of
its own, and no party would be able to invoke the aid of the English court
in support of the order, unless by some independent proceedings which
have their independent justification in the eyes of the court.
Order recognised in part.