JUDGMENT
GRIFFIN J.:
[1] The Jurisdiction of Courts and Enforcement of Judgments (European
Communities) Act 1988 ('the Act') came into force on 1 June 1988 in
pursuance of the 1988 Commencement Order 1988 (S.I. No. 91 of 1988).
The purpose of the Act, in so far as is material to this case, was to give
the force of law to
(a) the Convention on Jurisdiction and the Enforcement of Judgments
in Civil and Commercial Matters (including the Protocol annexed to
that Convention) signed at Brussels on 27 September 1968 ('the 1968
Convention');
(b) the Protocol on the interpretation of that Convention by the Court of
Justice of the European Communities signed at Luxembourg on 3 June
1971 ('the 1971 Protocol'), and
(c) the Convention providing for the Accession to the 1968 Convention
and the 1971 Protocol of the State, Denmark and the United Kingdom,
signed at Luxembourg on 9 October 1978('the 1978 Accession
Convention').
Accession to the 1968 Convention, which had been in force between the
original six member-States since 1973, and to the 1971 Protocol, was a
condition of the State's membership of the European Communities (Article
220 EECand Article 3 of the Act of Accession of 1972). Section 3(1) of the
Act accordingly provides that (inter alia) these Conventions and the 1971
Protocol shall have the force of law in the State and judicial notice shall be
taken of them.
[2] 'Contracting State' is defined in section 1(1) of the Act, in so far
as this case is concerned, as meaning one of the parties acceding to
the 1968 Convention under the 1978 Accession Convention (the State,
Denmark, and the United Kingdom), being a state in respect of which
the 1978 Accession Convention had entered into force in accordance with
Article 39 of that Convention, i.e. when it has been ratified by the six
original member-States of the Community together with at least one new
member-State, and that if by then one or both of the other new member-
States have not ratified, it will enter into force when they do so.
[3] Article 38 of the 1978 Accession Convention requires that the
Convention shall be ratified by the signatory States and that the
instruments of ratification shall be deposited with the Secretary-General
of the Council of the European Communities. Article 40requires the
Secretary-General to notify the signatory States of the deposit of each
instrument of ratification and of the dates of entry into force of that
Convention for the Contracting States.
[4] The enforcement provisions of the 1968 Convention are contained
in Article 31 to 45 of Title III. The provisions relevant to this case are as
follows:
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, the order for its enforcement has been issued there.'
Article 32
'The application shall be submitted... in Ireland, to the High Court.'
Article 33
'The procedure for making the application shall be governed by the law of
the State in which enforcement is sought.
The applicant must give an address for service of process within the area
of jurisdiction of the court applied to. However, if the law of the State in
which enforcement is sought does not provide for the furnishing of such
an address, the applicant shall appoint a representative ad litem.
The documents referred to in Articles 46 and 47 shall be attached to the
application.'
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...
Under no circumstances may the foreign judgment be reviewed as to its
substance.'
Article 35
'The appropriate officer of the court shall without delay bring the decision
given on the application to the notice of the applicant in accordance with
the procedure laid down by the law of the State in which enforcement is
sought.'
Article 36
'If enforcement is authorized, the party against whom enforcement is
sought may appeal against the decision within one month of service
thereof.'
Article 37
'An appeal against the decision authorizing enforcement shall be lodged in
accordance with the rules governing procedure in contentious matters...
in Ireland, with the High Court.'
Article 46
'A party seeking recognition or applying for enforcement of a judgment
shall produce:
1. a copy of the judgment which satisfied the condition necessary to
establish its authenticity.'
Article 47
'A party applying for enforcement shall also produce:
1. documents which establish that, according to the law of the State
in which it has been given, the judgment is enforceable and has been
served.'
Article 34 of the 1978 Accession Convention (which is one of the
Transitional Provisions)
1. 'The 1968 Convention and the 1971 Protocol, with the amendments
made by this Convention, shall apply only to legal proceedings instituted
and to authentic instruments formally drawn up or registered after the
entry into force of this Convention in the State of origin and, where
recognition or enforcement of a judgment or authentic instrument is
sought, in the State addressed.'
[5] Section 5 of the Act provides that an application for... the enforcement
in the State of a judgment shall be made to the Master of the High
Court and shall be determined by him by order (including an order for
the... enforcement of a judgment in part only) in accordance with the
Convention.
The facts
[6] On 18 July 1988 the abovenamed defendant ('T.') obtained judgment
in each of four actions instituted by it against the abovenamed plaintiff
and L. C. Co. (U.K.) Ltd., a company owned and controlled by him, in
the Queen's Bench Division of the High Court of Justice in England. The
aggregate of the sums awarded to T. on foot of the four judgments was
the sum of £1,412,771 sterling. The plaintiff was legally represented at
the hearing of the actions at which the claim of T. was fully contested
on his behalf. From the decision of the High Court in each of the four
actions the plaintiff appealed to the Court of Appeal in England and on the
hearing of each of the appeals he was represented by Queen's Counsel
and Junior Counsel. After a hearing lasting two days the appeals were
dismissed by the Court of Appeal. It appears from the judgment of the
Court of Appeal that the judgments in the four actions were in respect
of dishonoured bills of exchange accepted by the plaintiff's company
for goods delivered to it, backed by the plaintiff in each case by way of
indorsement.
[7] On 9 December 1988, pursuant to section 5 of the Act the defendant
applied ex parteto the Master of the High Court under Article 31 of the
1968 Convention for the enforcement of its judgments against the plaintiff
in this jurisdiction. Two affidavits grounding the application to the Master
were made by Donogh Crowley, a partner in the firm of A. C. & Co., T.'s
solicitors, on 6 December 1988 and 9 December 1988 respectively. In
paragraph 2 of the affidavit of 6 December he stated that the firm of A.
C. & Co. had been authorised to accept service of documents on behalf
of the applicant (T., the defendant in this action) for the purpose of the
applications and that such documents might be served at 41/45 St.
Stephen's Green, Dublin 2. The documents required by Articles 46 and
47 were produced, being exhibited in that affidavit. On that date, the
Master made an order that the judgment debt amounting to £1,412,501,
and interest, be enforced in the State. (The Master's order is for a sum of
£270 less than the judgment debt due to a typographical error--one of the
judgments is for £170,413 and that appears in the order as £ 170,143.)
The Enforcement Order was issued on 23 December 1988 and was served
on the plaintiff on the same day.
[8] The Rules of the Superior Courts (S.I. No. 14 of 1989), made as a
consequence of the coming into force of the Act, did not come into force
until 1 February 1989. As the time limited by Article 36 for appeal by the
plaintiff expired on 23 January 1989, on 20 January 1989 the plaintiff
issued a plenary summons in which he claimed against T. a declaration
that the said order of the Master was ultra vires the provisions of the
Act and was invalid and of no effect; an order by way of appeal against
the decision of the Master; and claiming an order setting aside that
decision. No point is taken by T. as to the propriety of bringing the appeal
in that form. A statement of claim was delivered on 21 February 1989.
Two motions, one by T. claiming a dismissal of the plaintiff's claim in
the action, and one by the plaintiff seeking the determination of certain
questions of law by way of a special case pursuant to Order 34 of the
Rules of the Superior Courts, were heard by Carroll J. on 13 March 1989.
On that date she made an order for the determination of two questions
without further pleadings or the taking of evidence, i.e.:
1. whether the said order of the Master is a nullity and ultra vires the
provisions of the Act upon the grounds that;
(a) the order contained no address of the plaintiff for service of process
within the area of the jurisdiction of the High Court,
and/or
(b) the order failed to disclose on its face that the said judgments were
judgments of a court of a Contracting State, and
2. whether the Master was entitled to authorise enforcement of the said
judgments as judgments to which the provisions of the [1968] Convention
applied.
[9] These questions of law were tried by Blayney J. on 15 March 1989.
As to question 1, it was submitted on behalf of the plaintiff that Article
33 required that the defendant's address for service of process within
the jurisdiction must appear on the face of the Master's order, and that
the order served on the plaintiff should also disclose on its face that
the judgments in respect of which the enforcement was sought were
judgments of a Contracting State--in this case, the United Kingdom. If, it
was said, these matters did not appear on the face of the Master's order,
the order did not comply with the Convention and was invalid, and ultra
vires the provisions of the Act.
[10] Blayney J. held that these submissions were not well founded, and
that neither of the matters in respect of which it was claimed there had
been default is a requirement of the Convention. In respect of question
1(a) he held that all the Article 33 required was that the address for
service of process should be given at the time of the application to
the Master and as part of that application, and that it was clear from
the evidence that this was done. As to question 1(b), he held that, in
regard to a judgment in a case which was contested, it is not necessary
to specify expressly the Contracting State in which the judgment was
obtained, as this is information which must necessarily be known by the
person against whom the judgment was given, and the judgments in this
case were clearly identified in the Master's order.
[11] As to the second question, i.e. whether the Master was entitled to
authorise enforcement of the judgments as being judgments to which the
Act and the Convention applied, the argument advanced on behalf of the
plaintiff in the High Court was that, by virtue of Article 34 of the 1978
Accession Convention (one of the transitional provisions in Title V), not
only was it necessary to establish that the Convention was in force at the
time when the application was made to the Master on 9 December 1989,
but also that the proceedings in the United Kingdom were instituted after
the Convention came into force there, and that, as there was no evidence
before the Master that the proceedings were instituted after 1 January
1987, the Convention did not apply to this case and the Master should not
have made the enforcement order.
[12] Blayney J. was satisfied that the documents before the Master
established that the writs of summons in all four actions were issued
on 29 October 1987, 24 November 1987, 26 January 1988, and 11
April 1988 respectively. He held that all the proceedings were therefore
instituted after the Convention came into force in the United Kingdom and
that the Master was accordingly entitled to authorise enforcement of the
judgments. In the result, he answered the first question in the negative,
and the second question in the affirmative, and dismissed the plaintiff's
claim in the action.
[13] From that decision the plaintiff appealed to this Court. The
submissions upon which the plaintiff relied on the hearing of this appeal
were substantially similar to the submissions made on his behalf in the
High Court. It was, however, also submitted that Article 33 should be
construed by this Court as if the second paragraph of Article 33 read:
'The applicant must in the decision authorising enforcement give an
address for service of process...',
and also that it should be implied that Article 33 and 36 required that
the decision (i.e. the Master's order) should state that the judgments
sought to be enforced were judgments of a court of a Contracting State
which was a party to the Convention. It was also sought to argue that
there was no evidence that the Convention had come into force in the
United Kingdom, or of the date on which it came into force. On this latter
question the attention of counsel for the plaintiff was drawn to the fact
that it was apparent from the judgment of the learned trial Judge that the
plaintiff had, in the High Court, accepted that the Convention came into
force in the United Kingdom on 1 January 1987, an acceptance that would
seem to be quite proper having regard to the provisions of Article 38 and
40 of the 1978 Accession Convention already referred to. At page 2 of his
judgment, Blayney J. unequivocally stated that:
'The 1968 Convention was brought into force in the United Kingdom on 1
January 1987,'
and on page 12, in relation to the second question, he said:
'Counsel submitted that the effect of this Articlewas that for the Master
to be entitled to authorise enforcement, it had to be proved not only that
the 1968 Convention was in force in the State at the time the application
was made, but also that it was in force in the United Kingdom at the time
the proceedings were instituted there, and he submitted that this had not
been done as it has not been proved that the proceedings were instituted
in the United Kingdom after 1 January 1987.'
[14] It was pointed out to Counsel for the plaintiff that the submission
made in the High Court on the second question was wholly inconsistent
with the submission sought to be made in this Court, i.e.that there was
no evidence that the Convention was brought into force on 1 January
1987, and that such a submission could not therefore be advanced on this
appeal.
The scheme of the enforcement provisions of the conventions
[15] The 1968 Convention is clearly designed to provide an expeditious
and comparatively simple and uncomplicated method of enforcing a
judgment of one Contracting State against the judgment debtor in the
Contracting State in which he is domiciled, and in which State his assets
are therefore likely to be. Article 33 provides that the procedure is to be
governed by the national law of the State in which the enforcement is
sought. Apart from requiring that the applicant must give an address for
service of process, and that the documents referred to in Articles 46 and
47 shall be attached to the application (these being the requirements of
Community law), all the procedures, including the necessary proofs to be
adduced, are to be governed by national law. Article 34 provides for the
application to be made ex parte and that under no circumstances may the
foreign judgment be reviewed as to its substance. These are provisions
which would be obvious to include in any such Convention. For example,
if the application was to be made on notice to the judgment debtor, this
would give him an opportunity of transferring his moveable assets outside
the jurisdiction before the application is heard. The need for expedition
is emphasised in Articles 34 and 35, under which the Court to which the
application is made must give its decision without delay and the decision
must also without delay be brought to the notice of the applicant. Article
36 gives to the judgment debtor a right of appeal within one month of the
service of the enforcement order.
Question 1(a)--should the address for service of process be specified in
the enforcement order served on the judgment debtor?
[16] I am quite satisfied that the learned trial judge was correct in
holding that Article 33 requires only that the address for service should
be given in the course of the application to the Master and that it is not a
requirement of the Convention that it should have been stated on the face
of the enforcement order served on the plaintiff. The provisions of Article
33 have been interpreted by the European Court of Justice in Carron v.
Germany, to which Blayney J. referred in his judgment. In the course
of the judgment of that Court, it is stated at paragraphs [10] to [14]
inclusive that:
[10] 'It is clear from [the provisions of Article 33 of the Convention] that
the law of the State in which enforcement is sought (lex loci executionis)
governs the entire procedure for making the application and that the
furnishing by the applicant of an address for service of process is part
of that procedure. Where the lex loci executionis does not indicate the
exact time at which an address for service is to be given, it must be
held, in accordance with the aims of the Convention, that it must be
given sufficiently early to ensure that the proceedings are not improperly
delayed and that the rights of the party against whom enforcement is
sought are safeguarded. At the latest it must be given when the decision
authorising enforcement is served.
[11] The answer to be given to the first question submitted by the
national court must therefore be that Article 33(2) of the Convention of
27 September 1968 on Jurisdiction and the Enforcement of Judgments
in Civil and Commercial Mattersmust be interpreted as meaning that
the obligation to give an address for service of process laid down in that
provision must be fulfilled in conformity with the rules laid down by the
law of the State in which enforcement is sought, and if that law is silent
as to the time at which that formality must be observed, no later than the
date on which the decision authorising enforcement is served.
[12] Mr. Carron takes the view that since it is Community law which
requires that an address for service should be given before a decision
authorising enforcement has been issued, it is likewise Community law
which determines the sanction attaching to any failure to do so. In view of
the imperative wording of Article 33(2), and the requirement under Article
35 of the Convention that the court to which application is made must
"without delay" notify its decision to the applicant, the sanction can only
be that the application is held to be void.
[13] The Court must agree with the German Government and the United
Kingdom that inasmuch as the Convention provides no sanction for failure
to comply with Article 33 that sanction must like the other procedural
rules referred to in that article, be determined by the law of the State in
which enforcement is sought.
[14] The law of the State in which enforcement is sought must, however,
conform to the aims of the Convention, thus the sanction provided for
may neither cast doubt on the validity of the enforcement order nor in
any way prejudice the rights of the party against whom enforcement is
sought.'
[17] That judgment establishes three principles:
1. The law of the State in which enforcement is sought governs the
entire procedure for making the application for enforcement, of which
the furnishing by the applicant of an address for service of process forms
part;
2. At the latest, notice must be given no later than the date when the
decision authorising enforcement is served;
3. The sanction for failure to comply with the requirements of Article
33 must be determined by the law of the State in which enforcement is
sought.
[18] The finding of that Court that the address for service of process must
be given at the latest when the decision authorising enforcement is served
is, in my opinion, wholly inconsistent with the submission that it must
be stated in the order issued by the Master. The evidence in this case
established that the address was given at the time the application was
made to the Master, and this clearly satisfied the requirements of Article
33.
Question 1(b)--should the order have disclosed on its face that the
judgments are judgments of a Contracting State which is a party to the
Convention?
[19] In the Articles of the Convention providing for enforcement of
judgments there is no provision requiring that the enforcement order
shall state that the judgments in question are judgments of a Contracting
State which is a party to the Convention. This question is therefore
governed by national law. For the purpose of this appeal I am prepared
to assume, without deciding, that it is a procedural requirement of our
law that the order of the Master should, on its face, have stated that the
judgments were judgments of a Contracting State which is a party to the
Convention. On that assumption, the sanction for any failure to comply
with such a requirement must be determined by national law. The Court
must therefore ascertain where the balance of justice lies between the
parties--in other words it must determine whether the interests of justice
require that the plaintiff should be permitted to rely on the breach of
the procedural requirement in the Master's order, or whether T. should
be permitted to enforce the order notwithstanding such breach. I have
no doubt that the interests of justice overwhelmingly require that this
conflict should be resolved in favour of T.. Each of the four judgments in
the High Court of Justice in England was in respect of dishonoured bills
of exchange, accepted by the plaintiff's company for goods supplied to
it by T., and 'backed' or guaranteed by the plaintiff. All the actions were
fully contested in England by the plaintiff both in the High Court of Justice
and in the Court of Appeal, and the plaintiff cannot have been under
the slightest misapprehension as to the judgments on foot of which the
enforcement order was made by the Master, or of the court of the State
in which those judgments were recovered. The learned trial judge found
that the U.K. is a Contracting State and that the Convention came into
force there on 1 January 1987. I would therefore uphold the finding of the
learned trial judge that question 1 should be answered in the negative.
Question 2--was the Master entitled to authorise enforcement of the
judgments as judgments to which the Act and the Convention applied?
[20] Earlier in this judgment I have set out the submissions made by the
plaintiff in the High Court and the findings of Blayney J. in respect thereof.
Similar submissions were made in this Court. In my opinion, on the
evidence contained in the documents before him, all of which were also
before this Court, Blayney J. could have come to no other conclusion but
that each of the four actions was instituted after 1 January 1987, the date
upon which the Convention came into force in the United Kingdom, and I
entirely agree with his reasoning and his conclusions on this question. I
would therefore answer this question, as he did, in the affirmative.
[21] At the conclusion of the submissions advanced on behalf of the
plaintiff, his counsel invited this Court to consider the appropriateness of
referring the questions for decision in this Court to the European Court of
Justice for preliminary rulings pursuant to Article 177(3) EEC. That Article
provides that where any question of Community law is raised in a case
pending before a court of a member-State, against whose decision there
is no judicial remedy under national law, that court shall bring the matter
before the Court of Justice. However, before any question is referred to
that Court under this Article, this Court must consider that a decision on
the question referred is necessary to enable it to give judgment.
[22] In my opinion, there is in this case no question of Community law
in respect of which a decision is necessary to enable the Court to give
judgment. The only question of Community law which arose in the case
is as to the giving an address for service of process pursuant to Article
33 of the Convention. That question has already been determined by
the European Court of Justice in Carron's Case. The question in issue in
question 1(a) is whether the order should have contained the address,
and that is a matter of national law. In respect of question 1(b), the
procedures involved in that question are also matters of national law.
Likewise, in respect of question 2, it is clear from Carron's Case that the
national law governs the entire procedure for making the application
for an enforcement order and the documentary proofs are mater of
procedure. In addition, the issue which the learned trial judge had to
determine in respect of this question was whether the proceedings had
been instituted in the United Kingdom after 1 January 1987, and that
is not a question of Community law. I would accordingly refuse the
application of the plaintiff for a reference to the European Court of Justice
under Article 177(3).
[23] I would dismiss the appeal of the plaintiff and affirm the order of
Blayney J.
Appeal dismissed.