SWINTON THOMAS LJ: This is an application by the defendant, Mr J.,
for leave to appeal and a stay of execution in respect of an order of
Sir Ronald Waterhouse, sitting as a High Court judge, on 18 July 1996,
whereby he ordered that Mr J.'s application to set aside an order of
Master Tennant of 14 June 1995, registering a default judgment made on
6 October 1993 by the Brussels tribunal of first instance in Belgium, was
dismissed. The master's order was served on Mr J. on 1 May 1996.
It is not necessary to set out the facts in detail, nor the history of
the proceedings. On 13 April 1992, whilst Mr J. was living in rented
accommodation in Belgium, a piece of glass fell from a window in his
flat on to a car owned by the plaintiff company. The defendant's case
on liability was that the landlord was responsible. Judgment was given
against Mr J. in default on 6 October 1993. As I have said, the application
to register the judgment was not made until 14 June 1996.
Mr J.'s case is that he was never served with the originating process.
He left Belgium in 1993 and no document relating to these proceedings
was ever sent to him. The case for the plaintiffs was, and is, that the
documentation was served on him by delivery at his address in Belgium.
Mr J. takes three points in his notice of appeal:
(1) That the plaintiffs did not comply with the provisions of Ord 71, r 28.
(2) That the documentation, in particular the originating summons, was
not served on him in accordance with Belgian law.
(3) That there was no evidence before Sir Ronald Waterhouse that there
was a finding by the Brussels tribunal of first instance that the summons
had properly been served on him.
Order 71, r 28 provides:
"(1) An application for registration under section 4 of the Act of 1982
must be supported by an affidavit -
(a) exhibiting -
(i) the judgment or a verified or certified or otherwise duly authenticated
copy thereof together with such other document or documents as may be
requisite to show that, according to the law of the State in which it has
been given, the judgment is enforceable and has been served;
(ii) in the case of a judgment given in default, the original or a certified
true copy of the document which establishes that the party in default
was served with the document instituting the proceedings or with an
equivalent document;..."
That requirement was not complied with by the plaintiffs. The judge dealt
with that aspect of the case by saying that if he quashed the order made
by Master Tennant the plaintiffs' solicitors would be free to apply again
for registration of the judgment, armed with the appropriate exhibit to
the affidavit, and he could not see any provision under which the master
would be justified in refusing registration because of the history which he,
the judge, had related.
As to the second point, art 27(2) of the Brussels Convention provides:
"A judgment shall not be recognised:
(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."
The question then arises as to whether, once the issue is raised, there is
a duty laid on the court in the country asked to recognise the judgment
to investigate whether service was properly effected in accordance with
the law of the country in which the proceedings took place, in this case
Belgium. The judge held that art 27 did not confer on the English court
jurisdiction to reinvestigate compliance with the requirement for service
on the Belgian court once a Belgian court had been satisfied that there
had been proper service.
This matter is dealt with in some detail in Halsbury's Laws of England,
Fourth Edition, Volume 8, Pt I, at paras 1046 et seq. and particularly at
para 1048. It is not, I think, necessary for me to recite those passages
in detail. A number of cases are there referred to, including the case
referred to by Sir Ronald Waterhouse in his judgment, Klomps v Michel
[1981] ECR 1593. Also referred to is the relevant case set out in Mr J.'s
skeleton, Pendy Plastic Products BV v Pluspunkt Handelsgesellschaft
mbH [1982] 1 ECR 2723, [1983] CMLR 665. Mr J., in his, if I may say so,
excellent and also extremely helpful skeleton argument, sets out a short
passage from Dicey & Morris at page 537, which says:
"It seems that the English court may reopen the question whether there
has been due service under the law of the original court, provided that
the original court has not been seised of the question in adversarial
proceedings."
-- the important word, from Mr J.'s point of view, being "adversarial". In
Thierry Noirhomme v Walklate [1992] 1 Lloyd's Rep 427, Judge Kershaw
QC, sitting as a High Court Judge, appears to have taken the view that it
was for the English court to investigate whether the defendant had been
duly served with the process although, in that case, he found as a matter
of fact that he had.
The final point taken is that there was no evidence, save perhaps by
inference, that the Belgian court had made a finding that the proceedings
had been properly served on Mr J..
As I indicated to Mr J. at the outset of this hearing, we do not wish to
give undue encouragement to him, particularly as he will inevitably
involve himself in further costs in so far as the other side is concerned.
However, in my judgment the points that he has raised undoubtedly merit
consideration by this court and, for my part, I would grant him leave to
appeal.