THE COURT OF APPEAL  
CIVIL  
 
 
NO REDACTION NEEDED  
Neutral Citation No. [2021] IECA 303  
Court of Appeal Record No. 202 1/33 
High Court Record No. 2019/ 16FJ 
 
 
 
Whelan J.  
Murray J.  
Barniville  J.  
 
 
IN THE MATTER OF REGULATION (EU) NO. 1215/2012  
AND  
PURSUANT TO ORDER 42A OF THE RULES OF THE SUPERIOR COURTS 
(JURISICTION, RECOGNITION AND ENFORCEMENT OF JUDGMENTS) 2017  
AND  
IN THE MATTER OF A JUDGMENT OF THE SOFIA CITY COURT, REPUBLIC 
OF BULGARIA  
 
 
 
 
BETWEEN  
 
HENRY ALEXANDER BROMPTON GWYN -JONES  
 
APPLICANT/APPELLANT  
 
- AND -  
 
RICHARD WILLIAM MCDONALD  
 
RESPONDENT  
 
 
 
JUDGMENT of Mr. Justice Murray delivered on the 12th day of November 2021  
 
 
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 Background  
 
1. The legal and factual context to this appeal  is described in my judgment in closely 
related proceedings between the same parties ([2021] IECA 206).  Essentially, legal 
entities then related to and/or controlled by the appellant and respondent became 
involved in the acquisition of a shopping c omplex  in Bulgaria  (‘the Burgas Plaza ’).  
That transaction  was initiated  in November 2007 and was completed by January 2009. 
It was effected via a Maltese special purpose vehicle  which acquired the shares of a 
Bulgarian company, MB Izgrev EAD .  This latter entity  subsequently changed its name 
to Burgas Plaza AD.    
   
2. The companies directly  involved in the transaction were (insofar as relevant for present 
purposes) Gort (Holdings) Ltd. (‘Gort’) (the vehicle used by the appellant to make his 
investment) , Balkan Hol dings Limited, now known as MRP Brazil Ltd. (‘MRP’) (the 
vehicle  representing the interests of the  respondent)  and Burgas Holdings Ltd. (‘BHL’) 
(the Maltese special purpose vehicle used for the purpose of the investment).   The 
appellant now claims that the  respondent made fraudulent misrepresentations to him at 
the time of this transaction, but for which he would not have made the investment in 
the Burgas Plaza.  This claim is the subject of arbitration proceedings commenced by 
Gort against MRP and various other corporate bodies before the I nternational Chamber 
of Commerce  International Court of Arbitration (‘ICC’) in late 2014  (‘the first 
arbitration’) , in aid of which certain interlocutory freezing orders were made against 
MRP by the Isle of Man High Court. 
 
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3. In 2011, and following the completion of the Burgas Plaza transaction, the appellant 
and respondent entered into three identically worded agreements by which the latter 
lent monies to the former (those agreements being dated March 28, April 18 and April  
26 2011 ).  The monies advanced on foot of these agreements were not repaid, and 
proceedings were brought by the respondent before the Sofia City Court for judgment 
on foot there of.   
 
4. Two separate actions were commenced .  One action was to enforce the March 28 and 
April 26 agreements, and the other to enforce the agreement of April 18.   The action to 
enforce the agreement of April 18 resulted in a judgment of the Sofia City Court of 
November 11 2016. The action on foot of the March 28  and April 26 agreements 
resulted in a judgment of the Sofia City Court of October 31 2017.  While this appeal 
is concerned with the recognition and enforcement of the judgment of October 31 2017, 
as matters have developed the two judgments have become irr etrievably intertwined.  
 
The judgment of the Sofia City Court of November 11 2016  
   
5. The proceedings seeking to enforce the loan agreement of April 18 were purportedly 
served on the appellant at his home in Cork on 19 August 2016.  The appellant did not 
defend those proceedings at first instance, contending thereafter that he had not been 
duly or properly served with them.  Upon the granting by the Sofia City Court on 
November 11 2016 of judgment in those proceedings in the sum of €119,522.24 and 
the service of that judgment on the appellant on 26 June 2017, the appellant sought to 
set this  judgment aside before the Bulgarian Supreme Court of Cassation (‘SCC’) , 
relying to that end upon Article 303 of the Bulgarian Civil Procedure Code.  When by 
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decision of 17 July 2018 , the SCC refused t his application, the appellant sought to have 
the SCC r econsider its decision .  This request was refused on 25 January 2019.   
 
6. In the meantime, the appellant (in July 2018) brought proceedings before the High 
Court seeking orders refusing the recognition and/or enforcement of this judgment of 
the Sofia City Court.  In that application he claimed that the proceedings had not been 
duly or properly served upon him, as well as advancing an argument based upon public 
policy and a fraud the appellant contended had been perpetrated upon him.  He also 
relied upon the  fact that in January 2020 and shortly before the hearing the appellant 
had commenced a second arbitration commenced before the ICC in which he personally 
sought relief against the respondent arising from the alleged fraud  (‘the second 
arbitration’) .  In a  judgment delivered in May 2020 Meenan J. ([2020] IEHC 240) 
refused the appellant that relief.  That decision was unsuccessfully appealed to this court 
resulting in the judgment to which I have referred above ( [2021] IECA 206 ). 
 
 
The judgment of the Sofia City court of October 31 2017    
   
7. Unlike the procedure leading to the first judgment, t he action seeking judgment on foot 
of the agreements of March 28 and April 26 2011 was fully contested by the appellant 
at first instance, and the judgment granted agai nst him on October 31 2017 (following 
a hearing on 5 October 2017) was unsuccessfully appealed to the Court of Appeal, Sofia 
Civil Division  (the hearing before which was on 5 November 2018 , judgment being 
delivered on 6 December 2018).  An application to the SCC  to allow the appellant to 
make a further appeal to it was rejected by decision of 10 October 2019 .  The j udgment  
thereby obtained by the respondent was in the sum of €425,926 together with interest.   
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8. In those proceedings the appellant did not den y the fact of the loan agreements nor the 
fact that the monies advanced thereunder had not been directly repaid by him.   Instead, 
he asserted that the loan agreements were connected with agreements between two 
corporate entities pursuant to which advertis ing space was leased in the Burgas Plaza .  
He said that the parties had agreed that instead of the appellant  fulfilling his obligations 
under the loan agreements, a contract for the lease of space in Burgas Plaza would be 
entered into with a company owned by the respondent thereby granting to the 
respondent the opportunity to profit from that arrangement. The respondent was, under 
this agreement , to pay a rental price to a company controlled by the appellant, that rental 
payment being deducted over time fro m the sums the appellant owed under the loan 
agreements.  In this way, it was said, the appellant had discharged his obligations under 
the loan contracts by deducting the amount he believed to be due for income rental. 
This defence is described in the Bulg arian decisions in terms that the loan obligations 
in question were extinguished ‘ by giving instead of performance’ .   
   
9. The court of first instance , the Court of Appeal and the SCC rejected the defence.  The 
Court of Appeal said that there was no evidenc e that the respondent had agreed to the 
arrangement alleged by the appellant, and it upheld the finding of the court of first 
instance that it could not establish a connection between the legal relationship arising 
under the loan contracts and the legal re lationship arising under the lease contract, the 
former being between the appellant and the respondent and the latter being between 
corporate bodies.  
 
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10. In December 2019 p roceedings were  brought by the appellant in this jurisdiction 
seeking orders refus ing recognition and/or enforcement of  this judgment  or, in the 
alternative, a stay on the recognition or enforcement  thereof .   The appellant contended 
he was entitled to that relief because (a) the loan agreements formed part of a frau d 
perpetrated by the respondent and companies controlled by him on the appellant and 
(b) because there was an arbitration proceeding pending before the ICC arising from 
that fraud. Barr J. ([2020] IEHC 689) rejected this application . It is from that decisi on 
that this appeal is brought.   
 
The proceedings before Barr J.  
 
11. The proceedings before Barr J. came on for hearing following the decision of Meenan 
J. and while the appeal from that decision was pending before this court.  In that action  
the appellant re lied (as he had done in the proceedings heard by Meenan J.) upon the 
fact that in February 2014 Deemster Gough in the Manx High Court had granted a 
freezing injunction in proceedings brought by Gort against MRP and upon the 
conclusion reached by the Manx H igh Court that the evidence in that application 
disclosed a sufficiently clear prima facie case of fraud to ground such an order.  
Ultimately, those proceedings culminated in the appointment in July 2016 by th at court 
of receiver s to MRP.   
 
12. The appellant contended before Barr J. that the respondent was controlling the contracts 
the subject matt er of the Bulgarian judgment for and on behalf of MRP and/or that those 
contracts formed part of the series of agreements  entered into as part of the alleged 
fraud arising from the Burgas Plaza transaction.  The factual basis for this claim was 
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outlined by  a lawyer with the French firm representing the appellant in the ICC 
arbitration and in the Isle of Man proceedings. He said that but for the fraudulent 
conduct of the respondent in inducing the appellant to enter into a series of contracts 
and actions to acquire the shares of Burgas Plaza AD subsequent contracts, including 
the advertising contract and related loan contracts , would not have been entered into.  
 
13. Another lawyer with th e same firm assert ed that the respondent agreed to advance a 
sum of funds to  the appellant personally equal to the established value of funds that the 
respondent would be required to send to the appellant from the advertising company 
profits.  He continued:  
 
‘Consequently, the conduct of Mr . McDonald to induce Mr. Gwyn -Jones to 
invest through his companies in Burgas Plaza AD are directly related to the 
loans and advertising contracts. I confirm therefore that Gort and Henry Gwyn -
Jones are claiming in the ICC Proceedings that both the loan contracts and the 
advertising contracts wou ld never have been entered into if Mr. Henry Gwyn -
Jones did not acquire the shares in Burgas Plaza AD as Mr. Henry Gwyn -Jones 
and Gort would  have no reason or basis to enter into such contracts’ . 
   
14. As in the application before Meenan J., the appellant contended before Barr J. that it 
was contrary to the public interest in this jurisdiction to allow enforcement of a foreign 
judgment obtained on foot of an agreement which had itself been procured by fraud.   
Reliance was also placed upon the second ICC arbitration.  
 
The decision of Barr J.    
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15. Barr J. resolved th ese issue s as follows.  First, he expressed his agreement with the 
conclusion reached by Meenan J. that the existence of a worldwide freezing order made 
by the Isle of Man High Court was not of relevance as those proceedings concerned 
corporate entities while the en forcement action was as between the appellant and 
respondent personally.  Second, Barr J. determined that the argument based upon the 
public policy against fraud was not made out as all the appellant had in that regard was 
an allegation that the contract b etween Gort and MRP and other contracts were induced 
by fraudulent representations, but (a) that there had been no finding by any court or 
arbitral tribunal that Gort or the applicant had been defrauded by the respondent or by 
any company controlled by him  and (b) that the judgment of Deemster Gough did no 
more than find that the appellant had an arguable case of misrepresentation or deceit. 
This, the court found, was not sufficient to enable it to conclude that it would be 
contrary to public policy to refu se recognition or enforcement of the judgment.  
   
16. Barr J. also rejected the application made by the appellant for a stay preventing 
enforcement of the Bulgarian judgment pending the outcome of the second arbitration 
proceedings before the ICC. Regulation ( EU) No . 1215/2012 of the European 
Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition 
and Enforcement of Judgments in Civil and Commercial matters (recast)  (‘the Recast 
Regulation ’) did not expressly provide for such relief.  Insofar as the appellant argued 
that this arbitration was relevant because in the event that findings were made in favour 
of the appellant , he would bring an application to the SCC seeking to set aside the 
judgment, this also was found not to affo rd a basis for relief.  Barr J. referred to Article 
51(1) of the Recast Regulation  (at para. 80) , which provides that t he court to which an 
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application for refusal of enforcement is submitted  may stay the proceedings if an 
ordinary appeal  has been lodged a gainst the judgment in the Member State of origin or 
if the time for such an appeal has not yet expired .  Stressing the phrase ‘ ordinary 
appeal’ in Article 51 (1) Barr J. said that here, no such appeal had been lodged , further 
suggesting that even if a chal lenge were brought to the judgment  before the SCC  that 
would not be an ‘ ordinary appeal’  for the purposes of this provision  (at para. 81) . 
   
The appeal in the proceedings relating to the judgment of the Sofia City Court of 
November 11 2016     
 
17. Before the appeal against the judgment and order of Barr J. came on for hearing, this 
court heard the appeal against the judgment and order of Meenan J. rejecting the 
appellant’s application for orders refusing to recognise or enforce to judgment of the 
Sofia City Court of November 11 2016.  I delivered a judgment explaining why I 
believed that the appeal should be dismiss ed.  The other members of the Court (Whelan 
J. and Costello J.) agreed . 
 
18. The conclusions I reached in that judgment as to the legal princ iples governing the fraud 
and public policy arguments can be summarised thus:  
 
(i) While the Recast Regulation enables the refusal of recognition and/or 
enforcement by the courts of one Member State of the judgment of c ourts  
of another  Member State  where to do  so would be manifestly contrary to 
public policy in the Member State addressed, this is a power that should be 
strictly construed  and which arises only exceptionally  and where there is a 
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manifest breach of a rule of law regarded as essential in the legal order of 
the State in which enforcement was sought or of a right recognised as 
fundamental within that legal order . 
   
(ii) The courts of the State in which enforcement is sought may not refuse to 
recognise or enforce that judgment on the basis only that there is a 
discrepancy between the legal rule applied by the court of the State of origin 
and that which would have been applied by the court of the State in which 
enforcement is sought . 
   
(iii) In theory, where it is established that the judgment of the foreig n court has 
been procured by fraud, this may afford a basis on which the courts in this 
jurisdiction may , exceptionally,  refuse enforcement or recognition . 
 
(iv) Where there was a remedy for an alleged fraud in obtaining the judgment 
in the jurisdiction in which it was issued, the courts of the Member State 
addressed should ordinarily leave the defendant to pursue his remedy there . 
 
(v) The courts in this jurisdiction should not normally entertain a challenge to 
a judgment to which the Regulation  applies where it would not permit a 
challenge to an Irish judgment.  This means that the power should operate 
exceptionally, should arise only where the person resisting recognition and 
enforcement establishes a knowing and deliberate deceit of the court and 
where the fraud alleged affects the impugned decision in a fundamental 
way. 
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19. Having regard to those principles, I determined that the app ellant had failed to establish 
the conditions for the application of the public policy exception on the ground of f raud.  
The basic reason for that conclusion was that the applicant was not in truth alleging that 
the judgment had been procured by fraud  in the sense that the court had been deceived 
into giving it , but instead was claiming that the contract on foot of wh ich the judgment 
issued had itself been the consequence of fraudulent misrepresentation by the 
respondent.  That, I de cided , was not a n admissible  public policy objection  of the kind 
envisaged by Article 45(1)(a) of the Recast Regulation , but was instead a n 
impermissible attack on the merits of the underlying decision. I concluded that t he case 
advanced by the app ellant  depended on the incorrect assumption that fraud as a ground 
of public policy for the non -recognition or non -enforcement of the judgment of the 
courts of another Member State of the European Union captured an objection based 
upon the substantive law of contractual misrepresentation, deceit and set off  in 
circumstances where these were matters for the courts of the Member State of origin .  I 
also found that the evidential basis relied upon by the app ellant  to support his 
application was ‘ conspicuously vague as to how – exactly – the loan document sued 
upon by t he defendant was itself procured by fraud’  (at para. 74).  
   
20. In the course of my judgment I observed the lack of clarity around the legal basis on 
which the appellant contended that the fact of the second arbitration enabled the court 
to refuse to recognis e or enforce the judgment .  I found that the only evidence before 
the court germane to the contention was the loan agreement itself , which submitted any 
dispute relating thereto to the jurisdiction of the Bulgarian courts.  I also refused an 
application th at enforcement of the judgment be stayed pending the outcome of the 
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arbitration, noting the failure of the appellant to identify any legal basis for that 
application.  
 
This appeal  
   
21. The appellant has raised three objections to th e judgment  of Barr J.  in his Notice of 
Appeal.  First, he says that the trial Judge erred in failing to refuse enforcement of the 
Bulgarian judgment on the grounds that to permit same would be contrary to public 
policy as provided for in Article 45(1)(a) of the Reca st Regulation.  Second, he claims 
that the trial Judge erred in refusing enforcement given that the appellant had recently 
initiated arbitration proceedings in the ICC against the respondent personally alleging 
that the respondent had defrauded the appella nt of €26M and that the contracts the 
subject of the Bulgarian judgment were procured as a result of that alleged fraud.  Third, 
he said that the trial J udge erred in refusing to stay enforcement of the Bulgarian 
judgment pending the hearing and outcome of  the arbitral proceedings before the ICC.  
 
22. The fact that this court determined the appeal against the judgment and order of Meenan 
J. as it did  posed a significant challenge for the appellant in seeking to contend that Barr 
J. had erred in the conclusions he had reached.  Indeed, the respondent issued a motion 
to dismiss the appeal contending that, as a consequence of that judgment, the appellant 
was precluded by res judicata from prosecuting the appeal.  This was not, I think, quite 
correct.  The claim here is on foot of a different judgment  so that cause of action 
estoppel does not arise.  T he only aspect of res judicata that might prevent this Court 
from revisiting the question s decided in the first appeal is the possibility of an issue 
estoppel arising , precluding the appellant from re -opening issues determined in the 
other case which, of course, was between the same parties.  Issue estoppel, however, is 
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a more flexible princip le than cause of action estoppel, incorporating a ‘ special 
circumstances’ exception (see McDermott ‘Res Judicata and Double Jeopardy ’ (1999) 
at para. 2.04).  I would certainly have been prepared to entertain an application by the 
appellant to exceptionally  permit argument as to why the judgment in the first appeal 
was incorrect in its reasoning  if some basis had been advanced as to why this should be 
done and why the conclusions were in error.  
   
23. In the course of the oral hearing, counsel when asked to identify the precise basis on 
which he contended that the decision in the first appeal was in error made clear that he 
was relying in this regard exclusively on his written appeal submissions.  Those 
submissions argued as follows:  
 
 
(i) The court could in prin ciple come to a different conclusion in relation to the 
specific factual and legal issues argued in this appeal, the appellant being 
entitled to have a separate appeal heard and determined by the court. 
   
(ii) The terms of a consent order in the ICC arbitratio n proceedings combined 
with the decision of the Isle of Man High court comprised sufficient 
evidence to show the nature of the underlying fraud perpetrated by the 
respondent . 
 
(iii) The fraud and deceit thus evidenced show that ‘ the judgment herein were 
[sic.] obtained by an underlying fraud’ . 
   
24. I will deal separately with the issue around the consent order .  However , even assuming 
that this constitutes additional evidence to which regard should be had by this court, 
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and even assuming that it advances the conten tion that the respondent engaged in a 
fraud that can be connected to the loan agreements, two factors show that it is not 
sufficient to displace the conclusions that follow from my judgement in the first appeal.   
   
25. First, the appellant does not engage at  all with the conclusion that the basis for its 
invocation of the public policy objection to enforcement – that the fact that the loan 
agreements in question were connected to a broader fraud arising from the appellant’s 
investment in Burgas Plaza and/or t hat the respondent misrepresented the purpose of 
the agreements for advertising space and the loan agreements  - was not (having regard 
to the findings of law I have summarised above) a cognisable  public policy exception 
at all, but instead an attack on the  substance of the Bulgarian court decision.  
 
26. Second, he does not identify any legal provision pursuant to which this court would 
have jurisdiction to either refuse recognition or enforcement or place a stay on 
enforcement of the Bulgarian order by reason of the ICC arbitration.   The absence of 
such provisions formed the basis for my conclusion on these issues in the first appeal.  
   
27. For these reasons alone, I would hold that the appellant has failed to identify any basis 
on which the decision of Barr J. was wrong.  However, in this case there is a further 
and equally critical factor, which did not arise in the appeal from the judgment of 
Meenan J.   In relation to the loans the subject of the decision by Barr J.  the appellant 
did defend  the claim on the merits, yet never raised before the Bulgarian courts the 
argument that the agreements in question were unenforceable as being vitiated by fraud.  
While he contended – unsuccessfully - that the loan agreements and the advertising 
contracts  were interconnected (seemingly for the purposes of an argument as to set off), 
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he never made the case either (a) that the loan agreements were obtained as a result of 
a fraud relating to the advertising agreements, or (b) that the loan agreements were one  
aspect of a broader fraud which was enabled only because of the respondent’s alleged 
misrepresentations regarding his investment in the centre .  In fact, in the evidence most 
recently tendered to this court (and to which I will return further below) the a ppellant’s 
Bulgarian lawyer testifies that ‘ as of my knowledge Mr. Gwyn -Jones has never made a 
claim of fraud against Mr. McDonald before any Bulgarian court.’    
 
The failure to raise the objection based upon fraud before the Bulgarian courts  
 
28. The failure of the appellant to raise this objection before the Bulgarian courts combine d 
with his failure to proffer any  credible  explanation for the fact that he did not do so is 
itself fatal to the appellant’s attempt to rely upon the allegedly fraudule nt conduct of 
the respondent as a basis for non -enforcement of the judgment.  It is an inevitable 
consequence of the exceptional nature of the public policy exception in Article 45(1)( a), 
of the principle of mutual trust and confidence between the courts o f Member States 
underlying the Recast Regulation, of the requirement imposed by that Regulation that 
the enforcement of the judgments of courts of Member States be effected swiftly and 
of the practical consideration that it is the court of the Member State  of origin usually 
applying its local law and always applying its own procedures that is best placed to 
determine all issues touching the merits of a dispute before it, that the courts of a State 
to which a judgment is addressed under the Regulation must g enerally defer to the 
process before the courts of the State of origin.   It follows that they s hould normally 
only entertain a public policy challenge to such a judgment where either (a) the 
challenge could not have been raised before the court issuing th e judgment, or (b) that 
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challenge was raised but for reasons which themselves represent a public policy 
objection to enforcement  they were rejected by the trial court, that refusal not be ing 
capable of being remedied on appeal in the courts of the Member S tate of origin.  
 
29. It was essentially for these reasons that Phillips J. in Interdesco v. Null ifire [1992] 1 
Lloyds Rep. 180  (a decision I considered at some length in my judgment in the first 
appeal ) rejected an objection to enforcement based on public policy arising from the 
contention that the claimant in proceedings before the French courts had obtained the 
judgment sought to be enforced by deliberate falsehoods before the trial court.  The 
objecti on, he held, was properly addressed before the French courts, which afforded a 
procedure enabling this to be done and, moreover, an English court should not, he said, 
entertain a challenge to a judgment of the courts of a Convention State in circumstances 
in which it would not permit a challenge to an English judgment on the basis of res 
judicata  or issue estoppel (including the ‘ rule’ in Henderson v. Henderson  (1843) 3 
Hare 100 ).  While stressing that principles of issue estoppel had to be applied flexibly  
and with care in relation to foreign proceedings, this meant that – at least presumptively 
– a ground of objection which could have been but was not agitated in the foreign 
proceedings should not usually be entertained in the courts of the Member State 
addressed in proceedings seeking to prevent recognition or enforcement.  
   
30. That was also the conclusion reached by Cooke J. in Smith v. Heurtas  [2015] EWHC 
3745  (Comm) .  There, the public policy objection taken to the enforcement of a French 
judgment arose f rom a litany of complaints about the fairness of the procedures before 
the court of trial which, it was contended, amounted to a breach of Article 6 of the 
European Convention on Human Rights.  Rejecting the challenge, inter alia  because it 
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would have been  possible for the claimant to have raised the objections before the 
French courts, including on appeal, and concluding that in order to sustain his challenge 
to the judgment the claimant would have to have established that the system of legal 
remedies in F rance did not afford a sufficient guarantee of his rights, Cooke J. explained 
(at para. 2 1): 
‘Where the factors relied on as being contrary to public policy in England are 
factors which the court has already considered in the foreign jurisdiction or are 
factors which could have been raised by way of objection in that jurisdiction, it 
appears to me self -evident that the foreign jurisdiction must be treated as the 
best place for those arguments to be raised and determined. To do otherwise 
would be contrary to  the spirit of the Convention and, where issues of unfairness 
are raised which are capable of being the subject of appeal in the foreign 
jurisdiction, the court in the enforcing jurisdiction would be much less able to 
assess them than the original court wh ich was familiar with its own forms of 
procedure. It is plain that an enforcing court will have much more difficulty in 
understanding the overall foreign system and its procedures for ensuring that 
justice is done than the appeal court of the original juri sdiction itself. There is 
moreover a highly unattractive element in a defendant not raising points which 
he could have raised in the original jurisdiction, by way of appeal against the 
judgment and only seeking to raise those matters when the judgment is e xported 
to an enforcing jurisdiction under the Convention as matters of public policy 
for that court. ’ 
 
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31. That conclusion reflects another principle embedded in the Recast Regulation.  A 
judgement given in a Member State should be treated as if it had been given in the 
Member State addressed (Recital 26).  It follows that the public policy preclusion in 
Articl e 45(1)(a) must insofar as it is reasonably practicable to do so, be applied in the 
same way to the judgment of the courts of another Member State as it would operate 
vis a vis a domestic judgment  (Article 41(1)) .  Thus, as I explained in my judgment on 
the first appeal, the courts in this jurisdiction will – in certain limited and exceptional 
circumstances – set aside a domestic judgment that has been procured by fraud.  There 
is, however, no version of the law whereby a defendant could expect to defend a case 
for breach of contract on one basis, lose , and then seek to avoid enforcement of the 
resulting judgment on the basis that the original contract was, in fact , part of a broader 
fraudulent scheme  which although known at the time of the first trial, was never agitated 
before the court hearing the matter.  That, however, is the precise outcome which the 
appellant seeks to achieve  here. 
   
The application to admit fresh evidence  
 
32. It is in this context that the focus of this appeal  shifted shortly before it came for hearing.  
The applicant issued a motion seeking an order pursuant to Order 86A , rule (4)(b) of 
the Rules of the Superior Courts to admit additional evidence comprising a  consent  
award made by Sir Bernard Eder QC arbitrator in ICC case No. 20711/TIO between 
Gort (Holdings) Limited and MRP Brazil Limited (formerly Balkan Holdings Ltd.) and 
BHL (which it will be recalled was the special purpose vehicle established to execute 
the acquisition) , together with certificat es and copies of translations of applications 
made to the SCC on 24 September 2021 seeking annulment/revocation of the 
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judgement the subject of the enforcement proceedings.  The evidence thus sought to be 
admitted was exhibited in an affidavit of the appel lant’s solicitor sworn on the 29 
September 2021, to which the respondent’s solicitor replied on October 5.  Th e affidavit 
sworn by the respondent ’s solicitor exhibited an affidavit from Emil Emanuilov, a 
Bulgarian lawyer representing the respondent, sworn on October 4.  On October 13, the 
appellant’s solicitor delivered a further affidavit exhibiting an affidavit of Yordan 
Yordanov.  Although not expressly the subject of the motion, it follows that the 
appellant also sought liberty to adduce this expert evi dence of Bulgarian law.   
   
33. On the basis of that additional evidence the appellant sought to advance a new 
argument .  He said  that the court should stay enforcement or execution of the judgment 
in question pending the outcome of the application to the SCC .  It will be noted that 
this argument in those terms was not advanced to the High Court, so that in fact the 
appellant was seeking not merely to admit new evidence, but to advance a new ground 
of appeal based upon a claim that had not been a rgued  in the H igh Court. 
 
34. The court -  above the objection of the respondent – determined to admit this evidence 
at the hearing of the appeal de bene esse .  It is my view, having regard to the decisions 
in Lough Swilly  Shellfish Growers Co -op Society Ltd. v. Bradley [2013] IESC 16, 
[2013] 1 IR 227 and Allied Irish Banks v. Ennis [2021] IESC 12, that this evidence 
should be admitted and that the appellant should be allowed to agitate the new ground 
of appeal he advances having regard to the following:  
 
(i) While the argument sought to be advanced was not made in the High Court, 
a closely related argument was proposed.  The appellant contended before 
Barr J. that the court should stay enforcement pending the outcome of the 
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arbitration between the appellant and the respondent because if he prevailed 
in the arbitration he would then apply to the SCC to vacate the judgment.  
The claim he now seeks to make is that the court should grant such a stay 
because in fact such an applicati on has been made  to the SCC.  Thus, the 
foundation for the argument was advanced – insofar as it could have been 
made at the time – before the High Court. While that argument was addressed 
to a potential outcome in a different arbitration, I do not see thi s as affecting 
the essential connection between and similarity of the case made in the High 
Court, and the argument now sought to be advanced on appeal.  
   
(ii) For reasons to which I will return, it is possible for this court to adjudicate on 
the issues arisin g from that evidence without remitting the matter to the High 
Court, and without resolving disputed issues of fact . 
 
(iii) The respondent has himself sought to deploy in the hearing a procedural 
ruling made by the second arbitral tribunal in September 2021.  
 
(iv) The evidence in question was not available at the time of the High Court 
proceedings: the fresh application to the SCC was, as I have observed, made 
in September 2021, and was based upon the consent award of the arbitrator 
of June 28 2021.  
 
35. The respondent’s objection to the admission of this evidence was that it was ‘ wholly 
irrelevant to this appeal’ .  Specifically , he emphasised that the focus in the High Court 
was on the arbitration between the appellant and the respondent, whereas the consent 
- 21 - 
 
award was made in a different arbitration between Gort and MRP and other legal 
entities.  This is true.  However, the two arbitrations are closely related .  What is critical 
is that the appellant contended before the High Court that he should have a stay b ecause 
he would, in certain events, make an application to the SCC, and that he now seeks a 
stay because such an application has in fact been made.  For the reasons I have noted 
above, it is appropriate that the appellant be permitted to make the case he s eeks to 
advance regarding the effect of the application to the SCC and to that extent the material 
he seeks to adduce in evidence is relevant.  
 
The arbitrations  
   
36. To understand the asserted relevance of the new evidence it is necessary to visit in more 
detail the sequence of events around the arbitrations.  The original request for 
arbitration (ICC Case No. 20711/TO) was submitted under the ICC Rules on December 
18 2014.  The claimant was Gort and the respondents were MRP, Bridgecorp AD (a 
company said to be controlled by the respondent which it was originally intended to use 
in the acquisition but which was later substituted by MRP) and B HL. 
   
37. The referral to arbitration was said to arise from provisions in the original Memorandum 
of Understanding on foot  of which the investment proceeded , together with  a series of 
subsequent Loan Agreements.  Neither the appellant nor the respondent were party to 
these agreements , and were not parties to this arbitration as thus constituted.   The 
arbitrator is Sir Bernard Eder QC.  Between September 2015 and August 2020 he made 
a series of procedural rulings, one of which (in April 2015) confirmed that the 
claimant’s claim against Bridgecorp  AD was withdrawn with no order as to costs , 
- 22 - 
 
leaving  two respondents MRP (which was in receivership) and B HL (of which both 
appellant and respondent were directors).  
 
38. In January 2020 the second arbitration was commenced before ICC (ICC Case No. 
25093/70).  Here the claimants were the appellant and Gort, and  the respondents were 
the respondent to this appeal, Bridgecorp AD , MRP Brazil Limited and other corporate 
entities.  Those proceedings alleged that a number of agreements (including the loan 
agreements) would not have been entered into but for the fraudul ent misrepresentation 
of the respondent.  It is specifically claimed in the Request for Arbitration that the 
respondent as executive director of Burgas Plaza AD arranged for a contract between a 
firm set up by him to purchase the a dvertising space in the B urgas shopping centre for 
resale to advertisers at a profit.  It is claimed that the respondent fraudulently induced 
the appellant to consent to this contract b y indicating that the respondent would provide 
a series of limited personal loans to him that wo uld then be repaid through a share of 
the advertising profits generated in the advertising company through this contract with 
Burgas Plaza AD.  In this way, it is said, the respondent ‘ effectively agreed to advance 
the value of Mr. Gwyn -Jones ’ share of tho se anticipated profits and for the loans to be 
repaid in this manner’ .  It is claimed that the respondent failed to honour this 
arrangement and that the proceedings in Bulgaria to recover on foot of the loans were 
‘abusively’ commenced.   
   
39. On June 22 202 0 the ICC court decided that th is second  arbitration would proceed 
between the appellant, Gort, the respondent and Bridgecorp AD.   Proceedings were 
brought before a Paris court challenging the exclusion of the other parties.  It is apparent 
from the additi onal evidence before this court that the Paris court ruled against the 
- 23 - 
 
appellant in April 2021, with the result that this second arbitration remains constituted 
as directed by the ICC in June 2020.  The arbitral panel comprises Stephen Jagusch QC, 
George B urn and John Beechey  CBE . 
 
The consent award  
   
40. In December 2020 the parties to the first arbitration advised the arbitrator that they 
wished to submit the text of a settlement agreement to be recorded as an award by 
consent under Articles 16 and 32 of the ICC Rules of Arbitration.  After issuing a 
procedural ruling, the Settlement Agreement  was submitted to the Arbitrator on April 
8.  That Agreement was signed on 7 April 2021 on behalf of Gort by the appellant and 
on behalf of MRP by the appointed receiver.  The appellant also signed the agreement 
on behalf of B HL, his authority to do so deriving from a re solution of the general 
meeting of that company following the removal of the respondent as a director there of.  
The additional evidence furnished to the court discloses that the entitlement of the 
appellant to so represent B HL is to be challenged before th e Maltese courts by a 
shareholder in that company.  
   
41. The settlement agreement provided that the claimant was entitled to payment by the 
respondents of damages in the amount of £18,770,539.95 together with £3,200,000 for 
fees and expenses.  It also contain ed (in Part III thereof) a series of admissions to the 
effect that the respondent committed a civil fraud whereby the appellant was induced 
to invest sums and to provide guarantees to banks in order that Gort would invest in the 
Burgas Plaza project.  MRP and B HL acknowledged in this part of the agreement that 
they were used by the respondent as legal vehicles to facilitate this impropriety and to 
- 24 - 
 
assist in the civil fraud and that they considered that the respondent was liable for the 
damage caused to the appellant. A sequence of agreements are identified as having been 
entered into and as  being  ‘relevant and directly related to this dispute’.  These included:  
 
‘Personal loans between Messrs. Henry Gwyn -Jones and Richard M cDonald 
related to advertising cont racts of Burgas Plaza AD for which Mr. McDonald 
has obtained Bulgarian Court Orders and related Irish Court Or ders related to 
enforcement of those Bulgarian Court Orders.’    
 
42. In his consent award  dated 28 June 2021 , the arbitrator confirmed his satisfaction that 
inter alia the appellant was the proper representative of B HL with power and authority 
to sign the settlement agreement.  However, the arbitrator was clear that he was neither 
adjudicating upon the merits of  the dispute nor had he considered the admissions 
contained in Part III of the settlement agreement.  Paragraph 18 of the consent order 
states:  
 
‘However, the Tribunal emphasises and hereby makes clear that it has not 
considered the merits of the disputes between the Parties;  not the allegations 
or admissions of the Parties as recorded in the Settlement Agreement including, 
in particular, the matters set out in Section III of the Settlement Agreement 
(which, for the avoidance of doubt, the Tribunal does no t adopt and forms no 
part of this Award) ; nor has it considered the reasonableness or otherwise of 
the terms of the Settlement Agreement.’  
 
  (Emphasis added).  
- 25 - 
 
   
The new applications to the SCC  
   
43. Shortly after the issuing of this consent award, the appel lant brought two applications 
to the SCC seeking the annulment/revocation of both of the Bulgarian judgments.   
Those applications relied upon the consent award  by the arbitrator of June 28, referring 
to Part III thereof, which it described as ‘ an integral part of the Arbitration Award’ .  
From there it is said that ‘the decision rendered by the Arbitration court at the ICC 
contains recognition of unfavourable facts for Richard McDonald’ which are said to 
involve ‘ the existence of civil fraud constit uting grounds for annulment of loan 
agreements’ .  It is said that on the basis of this evidence the court of first instance should 
uphold the appellant’s allegations of a direct link between the procedural loan 
agreements and the advertising contracts.  
   
44. The parties adduced conflicting expert affidavit evidence addressing the prospects of 
success enjoyed by t his application.  The respondent’s expert, Mr. Emanuilov , 
expressed the view that the application could not succeed as the arbitrator’s award did 
not constitute new circumstances or new evidence comprising, as it does, a judicial act.  
Moreover, he says that does not establish fraud of a kind envisaged by the relevant 
provision of Bulgarian law - Article 303 of the Bulgarian Civil Procedure Code - as it 
does not evidence fraud on which the judgment was established or in connection with 
the adjudication of the case.  He also emphasises the statement by the arbitrator that the 
allegations made in the settlement were not being adopted by him, stating that t here is 
‘no possibility’  of the SCC adopting as new facts in evidence the allegations contained 
in the arbitral award having regard to that statement.  
- 26 - 
 
 
45. Mr. Yordanov disputes many of these propositions. He says that the consent of the 
parties to the award i s a new fact for the purposes of the applicable provision of 
Bulgarian law, and that those applications are with merit and that the appellant will 
prevail in them.  He emphasises that the court appointed receiver of MRP signed the 
settlement and thereby co nfirmed his understanding that this company was used by the 
respondent to commit the deceit and civil fraud alleged.  
 
46. Mr. Yordanov referred in the course of his affidavit to the fact that the appellant had 
applied to the arbitrators in the second arbitrati on for orders preventing the respondent  
from enforcing the Bulgarian judgments (and orders for costs made in the Paris 
proceedings determined in April 2021) stating that the fact of that application also was 
a circumstance upon which the set aside applicat ions were based .  In fact, he appears to 
have been unaware that on 16 August 2021 that Arbitral Tribunal had issued its decision 
on that application, refusing it.  The Arbitral Tribunal found that the appellant had failed 
for the purposes of that application to make out  a prima facie case that the claimants 
could establish that the Tribunal had jurisdiction over the appellant or the respondent, 
and that he had failed to  prove to the requi red standard  such a case on the merits of his 
claim.1 
 
1 Following the hearing of this appeal on October 22 2021 but before the delivery of the unapproved judgment in 
the matter on November 12, the Tribunal in the second arbitration issued (on October 26) a new procedural order, 
Procedural Order No. 3.  This ord er (which was not drawn to the attention of this court prior to its delivering 
judgment) arose inter alia from the application of the respondent to bifurcate the arbitration and to hear first by 
way of preliminary issue an application for the determination  of the Tribunal’s jurisdiction.  The Tribunal refused 
this application stating inter alia  that this was not a case in which the Tribunal could form the view that it was 
dealing with a manifestly impecunious claimant pursuing an ‘ obviously hopeless case’  (at para. 303).  The 
appellant applied to the court to reflect this finding in its final judgment.  The court is happy to do this, while 
noting that the Tribunal also stated its agreement with the respondent’s submission that there had been no 
substantive c hange since the Tribunal issued Procedural Order No. 2 which ‘ should cause the Tribunal to take a 
different view as to the question of its prima facie jurisdiction’  (at para. 402  to 404).  
 
- 27 - 
 
 
The jurisdiction of the Court to stay enforcement of the Bulgarian judgments    
 
47. The Bulgarian law experts, however, are in agreement as to the following four matters.  
First, the SCC has jurisdiction to entertain an application of the kind filed by the 
appellant and, if that application is successful, to set aside the decision of the Sofi a City 
Court in whole or in part and return the case for a new hearing to the competent court.  
Second, that the making of such an application does not itself stay enforcement of the 
relevant judgment.  Third, that the SCC has the power to grant such a sta y before 
determining the application.  Fourth, where such a stay is sought the appellant must  
furnish ‘ due security’ . 
   
48. These four considerations are important in identifying and applying  the legal basis for 
the application now made by the appellant for a  stay on the enforcement of the 
Bulgarian order pending the outcome of the application to the SCC.  That legal basis  
arises from the combined effect of two provisions of the Recast Regulation – Articles 
44 and 51.2  These distinguish between the suspension of the enforcement proceedings 
(addressed in Article 44) and the staying  of the proceedings seeking refusal of 
enforcement (provided for in Article 51).   It is important to stress the different role of 
 
2 Article 38 of the Recast Regulation allows the court or authority  before which a judgment given in another 
Member State is invoked to ‘ suspend the proceedings’ if ‘the judgment is challenged in the Member State of 
origin’ .  The provision appears in Chapter III Section 1 of the Regulation which addresses (Article 36) two 
scenarios – the right of an interested party to apply for a decision that there are no grounds for refusal of 
recognition of a judgment, and the situation in which the outcome of proceedings in a court of a Member State 
depends on the determination of an incidental question of refusal of recognition.   It follows that the ‘ proceedings’ 
with which Article 38 is concerned are those comprising either a pre -emptive application for a declaration that 
there are no grounds for refusal of recognition of a forei gn judgment in accordance with Article 36 of the 
Regulation, or where an incidental question arises in an action which is dependent upon whether recognition 
should be refused (see Dickinson and Lein ‘ The Brussels I Regulation Recast’  (Oxford, 2015) at para . 13.138 fn. 
131).   Clearly, the application the subject of this appeal is not within the scope of Article 38.  
  
- 28 - 
 
these provisions : ‘ the Art. 51 stay only h alts challenges  (and related appeals) to the 
enforcement of the judgment in the Member State addressed: it does not stay the 
enforcement of the foreign judgment itself’ (Fitchen ‘Enforcement of civil and 
commercial judgments under the new Brussels 1a Regul ation ’ (2015) 26(4 ) ICCLR 
145).   Such a stay on enforcement  proceedings  can only be obtained under Article 44.  
 
49. However, the  provisions are  closely linked insofar as the power to suspend enforcement 
proceedings (where there has been no suspension in the Me mber State of origin) 
appears only to arise where proceedings seeking refusal of enforcement have been 
instituted and are at the time of the making of an application for suspension, still extant.   
In this regard I should emphasise that my conclusions in re lation to these provisions are 
necessarily somewhat tentative: the court was not addressed in any detail as to the legal 
basis for this aspect of the appellant’s application . 
 
50. Article 44(1)  is as follows:  
 
‘In the event of an application for refusal of enforcement of a judgment 
pursuant to Subsection 2 of Section 3,  the court in the Member State addressed 
may, on the application of the person against whom enforcement is sought:  
 
(a)  limit the enforcement proceedings to protective measures;  
(b) make enforcement conditional on the provision of such security as it shall 
determine; or  
(c) suspend, either wholly or in part, the enforcement proceedings’   
 
(Emphasis added)  
 
- 29 - 
 
51. The discretion is  self-evident ly broad , being limited only by the stipulation in Article 
44(2) that if enforcement is suspended in the Member State of origin, the competent 
authority in the Member State addressed is mandated to suspend enforcement 
proceedings.  However (a) as the first highlighted phrase  make s clear, Article 44(1) 
assumes that there is a  pending application for refusal of enforcement3 and (b) what is 
to be suspended pursuant to the provision is the ‘ enforcement proceedings ’.  The former 
– the application for refusal of enforcement - is governed by Section 3  subsection 2 of 
Chapter III of the Regulation, comprising Articles 46 to 51 inclusive .  Article 46 
provid es that the basis for refusal of enforcement is as iterated in Article 45, which 
includes the public policy grou nd relied upon in these proceedings.  The latter – the 
enforcement proceedings which Article 45 allows to be suspended if there is a pending 
action for refusal of enforcement – is governed by the law of the Member State 
addressed.  
   
52. But for the applicatio n to stay enforcement of the Bulgarian judgment, this appeal 
would – for the reasons I have explained above – have been dismissed.  That being so, 
at least at this stage of the process, one would have to question whether there is any 
basis on which the court could now resort to the power of suspension of enforcement 
provided for by Article 44.  Article 44 does not grant a free -standing power to arrest 
enforcement of a foreign judgment because there is an appeal pending in the Member 
State of origin.  It pre vents enforcement where the Member State of origin has 
 
3 Recital 31 to the Recast Regulation reflects the assum ption  that Article 44 is directed to a situation in which an 
application for refusal of  ‘enforcement’ is pending.  It states:  
 
‘Pending a challenge to the enforcement of a judgment, it should be possible for the courts in the Member 
State addressed, during the entire proceedings relating to such a challenge, including any appeal, to 
allow th e enforcement to proceed subject to a limitation of the enforcement or to the provision of security’    
 
- 30 - 
 
suspended the judgment, but otherwise it appears to require that there be a proper 
pending challenge to enforcement on the grounds identified in Article 45 (or, at least 
arguably, where there is a disp ute as to whether a judgment falls within the scope of the 
Regulation) before suspension is possible.   The Recast Regulation, in other words, 
consigns the effect of a  challenge to a judgment to which the Regulation applies to the 
law of the Member State of  origin before whose courts that challenge has been brought 
save where a duly constituted challenge to enforcement is pending.  
 
53. If that is wrong, and if this court could at this stage stay  these proceedings thereby 
preserving the application to stay these proceedings so as to ground an application under 
Article 44(1), its only power so to do derives from Article 51.  It states as follows:  
 
 ‘The court to which an application for refusal of e nforcement is submitted … 
may stay the proceedings if an ordinary appeal  has been lodged against the 
judgment in the Member State of origin or if the time for such an appeal has not 
yet expired’  
 
(Emphasis added).  
 
54. In Industrial Diamond Supplies v. Luigi R iva Case 43/77 [1977] ECR I-2175 , the issue 
was whether an appeal ‘ in Cassation’  brought against a judgment of the Civil and 
Criminal Court in Turin to the Supreme court of Appeal in Rome was an ‘ ordinary 
appeal’ for the purpose of Articles 30 and 38 of the Brussels Convention.   Following a 
detailed analysis, the Advocate General concluded (a) that the concept of ‘ ordinary 
appeal’ had to be given an autonomous meaning independent of the definition 
according to the law of the Member State concerned, (b) th at the  term ‘ordinary appeal’ 
- 31 - 
 
assumed that the appeal must be lodged within a short period of time of the decision 
appealed against and (c) that it was an appeal which could lead to annulment or 
amendment of the judgment with effect for parties to the proc eedings for enforcement.  
The Court of Justice similarly made it clear that the term ‘ ordinary appeal’ as it 
appeared in Articles 30 and 38 had to be given an autonomous meaning within the 
framework of the Convention itself.  It said that within those prov isions:  
 
‘any appeal which is such that it may result in the annulment or the amendment 
of the judgment which is the subject -matter of the procedure for recognition or 
enforcement according to  the Convention and the lodging of which is bound, in 
the State in which t he judgment was given, to a period which is laid down by 
the law and starts to run by virtue of that same judgment constitutes an 
‘ordinary appeal which has been lodged or may be lodged against a foreign 
judgment’ .   
 
55. It was on this basis that i n Interdesc o v. Nullifire  it was held that an application in 
accordance with the applicable French procedure to set aside a judgment (a ‘ recours en 
revision’ ) was not an ordinary appeal for the purposes of Article 30 of the Brussels 
Convention  because it was an appli cation that could be brought at any time.  The same 
is the case as regards the application under Article 303  of the Bulgarian Civil Procedure 
Code which, insofar as the evidence before this Court discloses, is not subject to any 
time limit  and is analogous to the ‘recours en revision’ in that it allows an application 
at any stage to set aside a judgment as opposed to an appeal as ordinarily understood . 
 
The exercise of the discretion to stay enforcement  
- 32 - 
 
   
56. If I am for whatever reason mistaken i n this analysis  and if, whether pursuant to Article 
44 or otherwise , the Court has a broader discretion  to grant this relief, I would not 
hesitate to refuse to do so. Any such exercise of discretion would have to strike a 
balance between two competing cons iderations.  One arises from the interests of the 
appellant in not facing enforcement of a judgment which is ultimately unwound in the 
Member State that issued it, and from the undesirability of a situation in which there 
are conflicting judgments from Mem ber State courts, one enforcing a judgment and the 
other vacating it.  The other arises from the interests of the respondent in obtaining the 
fruits of  the judgment s he has obtained in Bulgaria and which ha ve already been the 
subject of multiple appeals in  that jurisdiction.   
 
57. Both of these perspectives have to be judged in the light of the purpose of the Recast 
Regulation, and , in particular , the objective of ensuring the rapid enforcement and free 
circulation  of judgments of Member State courts, the principle of mutual trust as 
between those courts and the fact that it is the courts of the Member State of origin 
before which  issues on the merits between the parties are properly resolved.    It follows 
from the foregoing that the courts of the Member State addressed should approach an 
application for such a stay attaching primacy to whether it is possible to obtain such an 
order in the Member State of origin.  Where this is possible and  such an application has 
either been made and refused, or not been made  at all , the courts of the Member State 
addressed should (at least absent either a change in circumstances or an identified 
urgency) be most hesitant in making any order having the same effect.   While decisions 
addressing the power of the courts of the Member State addressed to suspend 
proceedings under the Brussels Convention or Regulation 44/2001 must be approached 
with caution as the criteria are arguably different given the abolition of the procedure 
- 33 - 
 
of exequa tur by the Recast Regulation, I think that this broadly reflects the analysis 
suggested in Petereit v. Babcock International Ltd. [1990] 1 WLR 350 (at p . 361). 
 
58. Bearing th ese factors in mind I would exe rcise any discretion this court had against a 
stay on enforcement, for the following reasons . 
 
59. First, i t is clear that Bulgarian law provides a process for imposing a stay on the 
enforcement of the judgment pending the application before the SCC.  The applicant 
has failed to invoke that procedure .  Second, n o credible explanation has been advanced 
for that failure.   Third, i nsofar as it is suggested that such an application has not been 
brought because it would require the lodgement of security, no justification has been 
suggested fo r the refusal of the appellant to do this.   Fourth, t o the extent that the 
applications before the SCC are dependent upon the ruling of the Tribunal in the first 
arbitration, it is absolutely clear that the Tribunal did not (contrary to the statement to 
the SCC in the application to it) incorporate any of the admissions contained in Part III 
of the Settlement Agreement into its order.   Fifth, t o the extent that the applications 
before the SCC are dependent upon the application to the Tribunal in the second 
arbitration, that Tribunal has ruled that the appellant has failed to establish a prima facie 
case that the arbitration clause binds the appellant and respondent.4 
   
60. Sixth and finally , while it is of course a matter for the Bulgarian courts as to whether  
they accede to an application to set aside a judgment on a basis that could have been, 
but was not, argued before the courts granting the judgment in question, insofar as this 
court has any discretion in the matter , I would attach considerable significanc e to the 
fact that no explanation of any kind has been provided to this court as to why the 
 
4 See f.n. 1 infra . 
- 34 - 
 
allegations of fraud now deployed against the respondent were not raised before the 
Sofia City Court or Court of Appeal.  To repeat the averment of Mr. Yordanov: ‘ as of 
my knowledge Mr. Gwyn -Jones has never made a claim of fraud against Mr. McDonald 
before any Bulgarian court.’   The suggestion that this only became possible because of 
the realisation of the facts recorded in Part III of the Settlement Agreement , does not 
withstand scrutiny in circumstances where at the same time it is contended that the 
findings of Deemster Gough in proceedings initiated in 2014 support the claim.  
 
Conclusion  
   
61. Thus, and in conclusion, this appeal should be dismissed and the Order of Barr J. 
affirmed. The application of the respondent to dismiss the appeal in limine  is refused, 
and the application of the appellant to admit further evidence granted.  The applicati on 
made for staying enforcement of the judgement pending the outcome of the application 
under Article 303 to the SCC is refused.   
   
62. It is my preliminary view that no order should be made in respect of the costs of either 
motion, but that the respondent s hould obtain his costs of this appeal.  If either party 
disagrees with this preliminary view they should advise the Court of Appeal Office 
within ten days of the date of this judgment whereupon a further hearing will be 
convened to address the question of costs.  
   
63. Whelan J. and Barniville  J. agree with this judgment and the Orders I propose.  
 
 
 
- 35 -