JUDGE KERSHAW QC: The defendant is an Englishman. In 1988 he went
to work in Belgium. He took a house there for himself and his family. The
niceties of Belgian land law are not material. For practical purposes it is
sufficient to say that he took a furnished tenancy of it from the plaintiff.
In due course the defendant vacated the house. The plaintiff alleged that
there was damage for which the defendant was liable. The plaintiff started
an action in the Belgian Court.
The Belgian originating process was sent (at this stage I avoid the use
of the word "served") to the defendant at his home in England by post.
He accepts that he received it. He took no formal step in the action and
in due course judgment was given against him in the Belgian Court in
his absence. That judgment has now been registered in England and the
defendant appeals against the registration.
Article 27 of the Brussels Convention provides that a judgment shall not
be recognized:
(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.
For the defendant Mr Buckley submits that this creates two separate
requirements, both of which much be fulfilled if a judgment is to be
recognized. They are (1) that the defendant has been duly served and
(2) that the service was at such a time as to enable the defendant to
arrange his defence. That submission gains support from Isabelle Lancray
SA v Peters und Sickert KG, [1991] IL Pr 99. It is not challenged by Mr
Richardson, for the plaintiff, and I agree with it.
Mr Buckley does not suggest that the defendant did not have sufficient
time in which to arrange his defence. His argument is that the originating
document was not duly served. Article IV of the Protocol annexed to the
Brussels Convention reads:
Judicial and extra-judicial documents drawn up in one Contracting State
which have to be served on persons in another Contracting State shall
be transmitted in accordance with the procedures laid down in the
conventions and agreements concluded between the Contracting States.
It is common ground between the parties that the only relevant
Convention is the Hague Convention. Article 5 of the Hague Convention
provides:
The Central Authority of the State addressed shall itself serve the
document or shall arrange to have it served by an appropriate agency,
either (...)
I need quote no more for present purposes. Article 5, in my judgment,
does not operate as a rule of English law prescribing the only method
by which service in England of an originating process from a convention
country is valid. Article 5 is part of chapter 1 of the Convention which
imposes a treaty obligation upon states to ensure that there is a central
authority which must effect service if asked to do so. Article 10, which is
also part of chapter 1, provides:
Provided the State of destination does not object, the present Convention
shall not interfere with -- (a) the freedom to send juducial documents, by
postal channels, directly to persons abroad (...)
Mr Buckley submitted that the sending of judicial documents by post,
although not forbidden by the Hague Convention, is not a procedure laid
down in that Convention and that the only method of service laid down
in the Hague Convention is the one provided by art 5. If that submission
is right, it follows that postal service does not comply with art IV of the
Protocol annexed to the Brussels Convention.
For the plaintiff Mr Richardson accepted that if the Brussels Convention
is to be construed as an English Court would construe an ordinary Act of
Parliament there would be much force in Mr Buckley's submission. And Mr
Buckley contended that the Brussels Convention should be construed in
such a manner.
Mr Richardson, however, submitted that the Brussels Convention should
be given a "purposive" construction -- by which he meant that individual
words and phrases should not be construed too literally and should be
construed so as to give effect to rather than to stultify the purpose of
the treaty as a whole where that purpose can clearly be seen. In my
judgment that is correct as a matter of English law.
He went on to submit that the purpose of the Convention is clear and
that the proper construction is that suggested by the learned authors of
O'Malley and Layton's European Civil Practice. He referred me to several
passages in that work, of which the most important is in section 35.18 on
p 894:
On one reading of this paragraph, it might appear to be mandatory in
requiring the procedures actually laid down in those conventions to be
followed.
I interpose here that thus far the passage supports Mr Buckley, but it
continues:
(...) It is submitted, though, that that reading would be too narrow.
Those other conventions themselves permit certain methods of service
to be used which are recognised by national laws but which are not
set out in detail in the conventions. Service may therefore be affected
"in accordance with" those conventions, even if not pursuant to the
procedures established by them. This paragraph is certainly not intended
to make invalid service which those other conventions would regard as
having been validly effected.
Mr Buckley submitted that the authors of O'Malley and Layton seem to
stress the words "in accordance with" at the expense of the words "laid
down".
Before leaving that passage in O'Malley and Layton I note that the
authors say in a footnote to the last sentence of the passage which I have
quoted that the purpose of art IV of the Protocol annexed to the Brussels
Convention is discussed in the Jenard Report. That report is to be found in
Appendix 1 of O'Malley and Layton. The relevant passage starts:
This Article simply adds a new method of transmission to those already
provided for by the Hague Convention (...)
I have already referred to art 10 of the Hague Convention. Mr Richardson
also relied on art 19, which reads:
To the extent that the internal law of a contracting State permits methods
of transmission, other than those provided for in the preceding articles, of
documents coming from abroad for service within its territory, the present
Convention shall not affect such provisions.
His argument is (1) that the sending of judicial documents by post is a
method "provided for" in art 10, which precedes art 19; (2) that apart
from the Brussels Convention English law permits postal service of
an originating process coming from abroad; and (3) that the Brussels
Convention should not be construed so as to outlaw something which is
preserved by art 19 of the Hague Convention. I agree with him. In my
judgment the phrase "laid down" in art IV of the Protocol to the Brussels
Convention means the same as the phrase "provided for" in art 19 of
the Hague Convention and both phrases cover procedures which are
preserved as well as those which are provided anew.
I am fortified in this conclusion by a passage in the judgment in the
Isabelle Lancray case at par 28, though I recognize that the Court of
Justice of the European Communities was here dealing with a different
question, which was whether art 27(2) of the Brussels Convention permits
the Court of the State in which enforcement is sought to cure a defect of
service by applying its national legislation. The Court said:
(...) it should be noted that in Case 228/81, Pendy Plastics v Pluspunkt,
the Court stated that, although they do not seek to harmonise the
different systems of service abroad of legal documents which are in force
in the member-States, the provisions of the Brussels Convention are
designed to ensure that the defendant's rights are effectively protected.
As Mr Richardson said, if the defendant's argument on the construction of
art IV of the Protocol is right, then in effect the systems of service abroad
of legal documents have in effect been harmonised.
It follows that in my judgment the Belgian originating process was "duly
served" for the purposes of art 27 of the Brussels Convention.
Mr Buckley had a second line of argument. It is based upon art 15 of the
Hague Convention, which reads (so far as material to his argument):
Where a writ of summons or an equivalent document had to be
transmitted abroad for the purpose of service, under the provisions of the
present Convention, and the defendant has not appeared, judgment shall
not be given until it is established that --
(a) the document was served by a method prescribed by the internal
law of the State addressed for the service of documents in domestic
actions upon persons who are within its territory, or (b) the document
was actually delivered to the defendant or to his residence by another
method provided for by this Convention, and that in either of these cases
the service or the delivery was effected in sufficient time to enable the
defendant to defend.
Mr Buckley submitted that neither of these alternatives have been
complied with.
I do not consider that this is a separate argument. Article 27 of the
Brussels Convention, which I have been considering thus far, contains
a list of grounds upon which a judgment given in one Contracting State
shall not be recognized in another. There are other articles, such as
art 28, which also contain grounds for non-recognition. The general
rule, however, is that judgments given in one Contracting State shall
be recognised in another. I do not think that failure to comply with art
15 of the Hague Convention -- if it were to be established -- provides a
ground for non-recognition separate from and additional to art 27(2) of
the Brussels Convention. However in case I am wrong I shall consider Mr
Buckley's arguments on their merits.
In respect of (a) his argument is that there was no translation, as
required by RSC, O 69, r 3(1). The answer to that submission is that the
translation required by rule 3(1) is a translation of "the request", which
is a reference to "a written request" in r 2, ie (so far as is relevant to
this appeal) a written request from a consular or other authority in a
convention country received by the senior master. It is not a translation
of the originating process itself. The part of the Hague Convention which
deals with the language of the originating process itself is art 5, under
which the Central Authority of the State addressed may require the
document to be written in or translated into the language of the State
addressed where art 5 applies ie where the Central Authority of the
State addressed itself serves the document or arranges for service. That
has not happened here. In my judgment (a) has been complied with,
so it is not strictly necessary to consider (b), which is an alternative.
However I would if necessary hold that there was compliance with
(b). The originating process was actually delivered to the defendant's
residence by post and, as I have already said, I consider that as a matter
of construction this was a method "provided for" by art 15.
It follows that if I have jurisdiction to deal with Mr Buckley's second line of
argument I would reject his submissions.
I turn finally to the applications which are made in the event of my
dismissing this appeal, as I do.
No appeal has been lodged in Belgium. There is no evidence from the
defendant as to Belgian law relating to the time for appealing, and since it
is the defendant who wants the stay it is the defendant who should have
provided such evidence. In any event, since the judgment was given as
long ago as October, 1989 it is highly unlikely that the time for appeal has
not expired. Therefore there cannot be a stay under art 38 of the Brussels
Convention.
Mr Richardson submitted that it is only under art 38 that a stay can
be granted. I think that he is wrong. I accept Mr Buckley's submission
that by s 4(3) of the Civil Jurisdiction and Judgments Act 1982 when
a judgment has been registered the English Court has in relation to
enforcement the same jurisdiction as if the judgment had been given in
the registering Court. The jurisdiction to order a stay is to be found in O
47, r 1(1). Mr Buckley applied for a stay in order to give the defendant
time to investigate the possibility of an appeal in Belgium, or at least a
short stay to give time for proposals for settlement of the judgment to be
made. I can see no special circumstances which render it inexpedient to
enforce a judgment -- albeit one given in the defendant's absence -- when
he deliberately chose to take no action on the process which he received
from the Belgian Court and when he has done nothing to investigate the
possibility of an appeal in the period since October, 1989. There is no
evidence of the defendant's income, assets or liabilities as required by r
1(3) where a stay is sought because of the defendant's inability to pay.
The application for a stay is therefore refused.
The parties agreed that costs should follow the event. The appeal is
therefore dismissed with costs.