Barnaby ( London) Ltd v Desmond Mullen
1993 No. 22 FJ
High Court
7 April 1995
[1996] 2 I.L.R.M. 24
(Kinlen J)
7 April 1995
Subject: Civil procedure
Keywords: Appeals; Enforcement; Foreign judgments; Service; Time limits
PracticeEnforcement of foreign judgmentOrder of Master of the High CourtWhether foreign judgment
enforceable under the 1988 ActService of order and enforcement noticeTime for appealWhether
plenary proceedings an act of execution or a protective measureJurisdiction of Courts and
Enforcement of Judgments (European Communities) Act 1988 (No. 3)Convention on Jurisdiction and
the Enforcement of Judgments in Civil and Commercial Matters 1968, articles 27.1, 33, 36, 39
PracticeService of Masters order and enforcement noticeWhether service validTime for
appealUnrestricted appearance to proceedingsAffidavitWhether appropriate for solicitor to make
grounding affidavitRules of the Superior Courts 1989 (SI No. 14 of 1989), O. 42A
*25
Facts
The plaintiff obtained a judgment against the defendant from the English High Court awarding him
271,879.15 damages, interest of 43,465 and costs. On 16 July 1993 the Master of the High Court
ordered that the judgment be enforced within the State. He further ordered that a copy of the order
together with an enforcement notice, be personally served on the defendant and that the defendant
would have one month from the date of such service to appeal against the making of that order.
Execution on foot of the judgment was to be stayed pending the expiration of the time for appeal. On
9 June 1993 a plenary summons had been issued by the plaintiff against the defendant and Margaret
Mullen, the defendants wife, seeking various declarations, including one setting aside a purported
conveyance dated 8 April 1991 by the defendant to Margaret Mullen of their family home on the
grounds of fraud. It was alleged that the conveyance was made in contemplation of and for the
purpose of avoiding the liabilities of the defendant to the plaintiff. The Masters order and the
enforcement notice were served at the seventh attempt on the defendant by handing two copies and
showing the originals of each document to the defendants wife at the family home.
The defendant issued a motion seeking (i) a declaration that the defendant had not been duly or
validly served with the Masters order; (ii) a declaration that the purported order of the Master was a
nullity and ineffective and did not comply with the requirements of Title III of the Convention on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Brussels
Convention); (iii) without prejudice to the foregoing a declaration that the English judgment was not
enforceable in this State for want of compliance with article 27.1 and article 33 of the Brussels
Convention. The defendant submitted that he was not properly served with the Masters order as he
was separated from his wife and not residing at the family home. He had not entered a notice of
appeal against the Masters order in accordance with the provisions of article 36 which provides for a
period of one month during which an appeal against the enforcement can be brought. It was further
submitted on the defendants behalf that the plenary proceedings constituted an act of enforcement
within the meaning of article 39 of the Brussels Convention which precludes measures of enforcement
being taken during the time specified for an appeal under article 36 and until such appeal has beenPage1
determined, unless such measures are protective measures. The motion was grounded on an
affidavit sworn by the defendants solicitor. The plaintiff argued that the plenary proceedings were a
protective measure to maintain the status quo pending the final determination of matters at issue.
Held, by Kinlen J in refusing the relief sought by the defendant and making a declaration that the
order of the Master was valid and effective and complied with the requirements of Title III of the
Brussels Convention: *26
(1) The defendant ought to have made his own affidavit. A solicitor should not make an
affidavit based on hearsay unless he can justify it as one of the exceptions.
(2) It was clear that the reason the defendant did not make his own affidavit about matters
which were peculiarly within his own knowledge was because he did not want to reveal his
present whereabouts.
(3) The English proceedings were served on the defendant at the family home and no affidavit
was ever sworn by the defendant or his wife that he was not residing there. Further, an
unrestricted appearance was entered to the plenary proceedings and an appearance had
been entered on his behalf to the English proceedings. It was clear that the defendant was
trying to avoid service.
(4) The judgment obtained in the English court was a judgment for the purposes of the
Brussels Convention 1968 as applied by s. 2 of the Jurisdiction of Courts and Enforcement of
Judgments (European Communities) Act 1988.
(5) The plenary proceedings to have the conveyance from the defendant to his wife declared
fraudulent under the Conveyancing Act (Ireland) 1634 was not a measure of enforcement, but
was a protective measure taken against the property of the party against whom enforcement
is sought in order to restore the status quo . Jozef De Wolf v. Harry Cox BV (Case 42/76)
[1976] ECR 1759 considered.
(6) The court has a discretion to deem service good under its own rules. In the particular
circumstances of the case there was service on the defendant by service at his family home
on his wife and possibly also by the service, as a matter of courtesy, on his solicitor. Fernand
Carron v. Federal Republic of Germany (Case 198/85) [1986] ECR 2437 considered.
(7) Therefore the defendant was duly and validly served with the order of the Master of the
High Court dated 15 July 1993 granting liberty pursuant to s. 5 of the Jurisdiction of Courts
and Enforcement of Judgments (European Communities) Act 1988 to enforce an English
judgment.
Cases referred to in judgment
Campbell International Trading House v. Van Aart [1992] 2 IR 305; [1992] ILRM 663
Fernand Carron v. Federal Republic of Germany (Case 198/85) [1986] ECR 2437; [1987] 1
CMLR 838
Rhatigan v. Textiles Y Confecciones Europeas SA [1990] 1 IR 126; [1990] ILRM 825
Jozef De Wolf v. Harry Cox BV (Case 42/76) [1976] ECR 1759; [1977] 1 CMLR 12
Representation
Martin Hayden for the plaintiff
Gerard Hogan for the defendant
KINLEN J
delivered his judgment on 7 April 1995 saying: In the High Court of Justice, Queens Bench Division,
Manchester District Registry Mercantile List, on 11 December 1992, His Honour Kershaw QC sitting
as a judge of the High Court in the Courts of Justice Liverpool, adjudged the defendant do pay *27to
the plaintiff 271,879.15 damages and interest totalling 43,365 to that date and his costs of the actionPage2
to be taxed on an indemnity basis if not agreed.
On 16 July 1993, the Master of the High Court in Dublin ordered that the said judgment be enforced
within the State. He further ordered that a copy of the order, together with an enforcement notice be
personally served on the defendant and the defendant to have one month from the date of such
service to appeal against the making of this order. Execution on foot of the said judgment was to be
stayed pending the expiration of the time for appeal as aforesaid. The plaintiff got the costs of this
application from the Master.
A notice of enforcement entitled In the matter of the Jurisdiction of Courts and Enforcement of
Judgments (European Communities) Act 1988 and in the matter of an application by Barnaby (
London) Ltd between Barnaby ( London) Ltd and Desmond Mullen, defendant was issued.
Meanwhile a plenary summons entitled Barnaby ( London) Ltdv.Desmond Mullen and Margaret
Mullen was issued on 9 June 1993, basically seeking various declarations including one setting aside
a purported conveyance by the first named defendant of all his interests in the property known as all
that part of the lands of Howth situate at the rear of 5, Offington Park and known as 5, Offington
Court, to the second named defendant, which purported indenture of conveyance is dated 8 April
1991, on the grounds of fraud and that it was made in contemplation of and for the purpose of
avoiding the liabilities of the first named defendant to the plaintiff. An appearance on behalf of the first
named defendant was entered on 17 August 1993 and a statement of claim was delivered on 31
August 1993.
The Masters order and enforcement notice were served at the seventh attempt on the defendant by
handing two copies and showing the originals of each document to the defendants wife, Margaret
Mullen, at the family home at 5, Offington Court, Sutton, Dublin 13. In an affidavit of Peter Nugent,
solicitor for the defendant, sworn 9 November 1993, Desmond Mullen concedes that the plaintiff
herein obtained judgment as against his client in the High Court of Justice for England and Wales on
11 December 1992 in the sum of 271,879.15 sterling plus 43,365 sterling for interest together with
costs and continuing interest on the said principal. The said judgment debt was in respect of goods
allegedly sold and delivered by the plaintiff to the first named defendant. Mr Nugent adds:
I have been advised by counsel that aforesaid English proceedings were thus in respect of a civil
and commercial matter within the meaning of article 1 of the Brussels Convention as scheduled
to the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988.
The motion presently before the court is dated 25 November 1993 and it is for: *28
A. An order declaring that the defendant herein has not been duly or validly served with an order
of the Master of the High Court dated variously in or about 5 February 1993 and/or 16 July 1993
granting liberty pursuant to s. 5 of the Jurisdiction of Courts and Enforcement of Judgments
(European Communities) Act 1988 to enforce an English judgment entitled between the plaintiff
and the defendant and granted to the plaintiff by the High Court of Justice of England and Wales
(Queens Bench Division), Manchester District Registry and dated 11 December 1992 and
bearing Record No. 1992 B No. 1721.
B. An order declaring that the purported order of the Master of the High Court dated 16 July 1993
is a nullity and ineffective and does not comply with the requirements of Title III of the Brussels
Convention 1968.
C. Without prejudice to the foregoing an order declaring that aforesaid English judgment is not
enforceable in this State for want of compliance with article 27.1 and article 33 of the Brussels
Convention.
This is based on an affidavit of the said Peter Nugent dated 22 November 1993. The contention in
that affidavit is that the order of the Master was not served on the defendant.
Shortly after swearing the affidavit of 22 November 1993 his office received a letter dated 5 November
1993 from Messrs Binchys, solicitors for the plaintiff. The court has already cited part of that letter. It
concludes: We enclose a courtesy copy of each document for your information. You will note their
contents. In other words the contention is that there was no service on the solicitor and that the
alleged service on Margaret Mullen is not effective as the defendants marriage with her hadPage3
effectively broken down since 1975. There is a deed of separation between the parties executed on 8
April 1991. There is an averment that the defendant was not residing at the family home at the time of
the purported service or at the time of any of the alleged seven attempts of service. It is his contention
advised by counsel that the plaintiff had not complied with the requirements of O. 42A, r.9 of the
Rules of the Superior Courts 1989 and articles 33 and 36 of the Brussels Convention. Unfortunately
there had been some confusion as regards the date of the Masters order. The matter came before
him in February and since the proofs were not in order, the order was not in fact made until 16 July
1993. In the affidavit of 22 November 1993, Mr Nugent contends:
For the following reasons the enforcement of the said English judgment would be contrary to
public policy in this State contrary to article 27(1):
(a) The plaintiff has not complied with the requirements of O. 42A of the Rules of the
Superior Courts 1989.
*29
(b) The plaintiff is seeking to rely on an enforced and invalid order of the Master of the High
Court viz. the purported order of 16 July 1993.
(c) The plaintiff has sought to frustrate the right of appeal to the High Court in the manner
provided for in article 36 of the Brussels Convention by declining and failing to serve on him
the first order of the Master of the High Court dated 4 February 1993.
Further the plaintiff has sought to circumvent the requirements of Title III of the Brussels
Convention by seeking to take or attempting to take measures of enforcement (full particulars of
which are set out at paragraphs 9 and 10 of Mr Nugents affidavit of 9 November 1993) in respect
of the English judgment prior to any valid enforcement order being made in this State.
The court is satisfied that there was, in fact, only one order dealing with the substantive issue,
namely, that of 16 July 1993. On behalf of the plaintiff, Mr Kenneth Smith, solicitor, made an affidavit
dated 31 January 1994 in which he argues that the affidavit should have been made by the defendant
and not by a solicitor, particularly since the main contention was that the first named defendant was
not properly served if the purpose of the affidavit was to conceal the present whereabouts, if other
than 5, Offington Court, of the defendant. He concedes that there was an order made by the Master
on 4 February 1993 but there were a number of errors which were rectified by way of supplemental
affidavit. The matter was brought back before the Master for confirmation. The matter was re-entered
before him and he made the order on 16 July 1993. As far as this Court is concerned that is the only
order relevant to these proceedings. His affidavits set out that the defendant was in serious financial
difficulties and that several of his cheques were returned bearing the endorsement payment stopped.
The defendant had given personal guarantees, two on 23 October 1989 and one on 4 November
1991 but it is submitted that the purported conveyance to his wife on 8 April 1991 was fraudulent. The
defendant himself (or through his solicitor, Mr Nugent), has never disclosed any defence to the claim.
He states that the plaintiff is and continues to be a judgment creditor and an entity to which the
defendant owes money within the meaning of the Conveyancing Act (Ireland) 1634. He argues that
the proceedings do not constitute an act of enforcement within the meaning of article 39. Should the
plaintiff be successful in the application, in order to enforce its judgment it must register a judgment
mortgage as against the property. Such conduct will constitute acts of enforcement. However, the
acts taken to date do not so constitute.
He refers to article 39, which states, inter alia:
The decision authorizing enforcement shall carry with it the power to proceed to any such
protective measure.
*30
He argues that the act is a protective measure to maintain the status quo pending the final
determination of the matters at issue between the parties herein. There is no doubt that the defendant
is trying to avoid service.
The defendant is arguing that he was not properly served but he is also trying to appeal the decision
of the Master. A solicitor should not make an affidavit based on hearsay unless he can justify it as one
of the exceptions. Why did the defendant not make the affidavit about matters which were peculiarlyPage4
within his own knowledge? It must be that he did not want to reveal his present where-abouts when
he was not residing at the family home. Mr Smith had a search carried out by the Irish Trade
Protection Association Ltd on 9 March 1993 which confirmed the address of the defendant as being
that of 5, Offington Court, Sutton, Dublin 13. The English proceedings were served on him at that
address and an appearance was entered on his behalf by English solicitors. It is also odd that his wife
did not swear an affidavit denying that he lived at that residence. The defendant has not entered a
notice of appeal against the order in accordance with the provisions of article 36 of the Convention.
Paragraph 10 of the said affidavit reads:
In addition it is to be noted that the particulars of demand and notice requiring payment prior to
the issue of a bankruptcy summons were forwarded to the defendant at 5, Offington Court,
Sutton, Dublin 13 on or about 29 March 1993 which said notice elicited a response from Messrs
Peter Nugent Co. of 30 March 1993. It is to be noted that in those proceedings Mr Nugent
confirms that he is acting for the defendant, but makes no reference to the fact that his client
resides at any different address or was not receiving correspondence or not receiving notices at
that address. In addition, upon service upon the defendants spouse of the proceedings, no
objection or intimation that the defendant did not reside at that address was made and in fact the
said documentation was accepted and it would appear was quite quickly brought to the attention
of the defendant. It should also be noted that nowhere in the present application herein is any
defence raised or query raised vis--vis the merits of the actual claim herein which relates to the
guarantees executed by the defendant in respect of goods sold, delivered and received.
He adds:
In relation to the appeal herein I say that no jurisdiction to bring this appeal arises in that a period
of one month has now expired since the date of service of the proceedings on the defendant and
accordingly the defendant has no locus standi to contest the matter herein. The defendant
furthermore has not advanced any legitimate reason for an extension of time for the making of
such appeal.
There is no doubt that the judgment obtained in the English court is a judgment for the purposes of
the 1968 Convention as applied by s. 2 of the *31 Jurisdiction of Courts and Enforcement of
Judgments (European Communities) Act 1988.
On 9 June 1993 the plaintiff issued a plenary summons claiming that the transfer of the family home
to the defendants wife on 8 April 1991 was fraudulent. The statement of claim was delivered on 31
August 1993 in this action. The defendant then brought a motion under O. 19, r.28 of the Rules of the
Superior Courts seeking a stay on the plenary proceedings on the basis that certain features of the
statement of claim are an effort at execution precluded by article 39 of the convention which provides:
During the time specified for an appeal pursuant to article 36 and until any such appeal has been
determined, no measures of enforcement may be taken other than protective measures taken
against the property of the party against whom enforcement is sought.
The decision authorising enforcement shall carry with it the power to proceed to any such
protective measures.
In the statement of claim it is repeated at paragraph 5:
At all material times the said conveyance was for the purposes of fraudulently avoiding
enforcement of any judgment obtained against the first named defendant against any of his
assets and liabilities and was carried out for the purposes of avoiding and circumventing the
rights of any lawful creditor.
At paragraph 9 it is pleaded:
It is the plaintiffs intention to register a judgment mortgage over the said property pursuant to the
provisions of s. 6 of the Judgment Debtors Ireland Act and thereafter in the event of non-payment
of the said judgment to seek a charging order together with an order for sale.Page5
The court is satisfied that these proceedings to have the conveyance from the defendant to his wife
declared fraudulent is not a measure of enforcement but is a protective measure taken against the
property of the party against whom enforcement is sought. The court is satisfied that the English
judgment has a status here under the convention. Article 36 provides:
If enforcement is authorised, the party against whom enforcement is sought may appeal against
the decision within one month of service thereof.
If that party is domiciled in a contracting state other than that in which the decision authorising
enforcement was given, time for appealing shall be two months and shall run from the date of
service, either on him in person or at his residence. No extension of time may be granted on
account of distance.
*32
It is argued that you only have one month in which to appeal and therefore it is essential and
imperative that the service is good. Ordinarily time is given by a court under the rules and terms.
Under s. 4 of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act
1988 the courts may look at:
(a) any ruling or decision of, or expression of opinion by the European Court on any question
as to the meaning or effect of any provision of the conventions, and
(b) the reports specified in subs. (2) of this section.
There are basically two issues here. First, that the service was not proper, and secondly, that the one
month requirement for an appeal was not met. The court was referred to Jozef De Wolf v. Harry Cox
BV (Case 42/76) [1976] ECR 1759 (preliminary ruling requested by the Hoge Raad of the
Netherlands). The summary reads as follows:
The provisions of the Convention on Jurisdiction and Enforcement of Judgments in Civil and
Commercial Matters of 27 September 1968 prevent a party who has obtained a judgment in his
favour in a contracting state, being a judgment for which an order for enforcement under article
31 of the Convention may issue in another contracting state, from making an application to a
court in that other state for judgment against the other party in the same terms as the judgment
delivered in the first state. The fact that there may be occasions on which, according to the
national law applicable, the procedures set out in article 31et seq of the convention may be found
to be more expensive than bringing fresh proceedings on the essence of the case does not
invalidate these considerations.
However, the court has held that it is merely a protective measure. The court was also referred to
Fernand Carron v. Federal Republic of Germany (Case 198/85) [1986] ECR 2437. The summary
reads:
The second paragraph of article 33 of the convention of 27 September 1968 on Jurisdiction and
the Enforcement of Judgments in Civil and Commercial Matters must 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 in which that formality must be observed, no later
than the date on which the decision authorizing enforcement is served.
The consequences of a failure to comply with the rules on the furnishing of an address for service
are, by virtue of article 33 of the convention, governed by the law of the state in which
enforcement is sought, provided that the aims of the convention are respected.
*33
I was also referred to the Rules of the Superior Court 1986 and the Rules of the Superior Courts (No.
1) 1989 (SI No. 14 of 1989) and in particular rules 8 to 11 of Order 42A.
The court was also referred to Rhatigan v. Textiles Y Confecciones Europeas SA [1990] 1 IR 126;Page6
[1990] ILRM 825 and pursuant to s. 4 of the 1988 Act to the report reproduced in the Official Journal
of the European Communities No. C59 of 5.3. 1979 p.1 of the reports of Mr P. Jenard on the 1968
Convention and the 1971 Protocol.
If there is a discrepancy you fall back on the domestic infrastructure. The Convention is an enabling
one in commercial law to ensure, inter alia, that the debtor has notice. Indeed there are two motions
and two affidavits and the Masters order. The defendant never swore an affidavit saying that he was
estranged and there is no letter saying that he was not served. The appearance entered was not
restricted (see Campbell International Trading House v. Van Aart [1992] 2 IR 305; [1992] ILRM 663).
One must look at the policy behind Jenard. The court is satisfied that it has discretion to deem service
good under its own rules and, in the particular circumstances of this case, the court is satisfied that
there was service on the defendant by service at his family home on his wife and possibly, also, by
the service, as a matter of courtesy, upon his solicitor. The court also referred counsel to Babbingtons
County Court Practice , pp. 171, 172. The action under the Conveyancing Act (Ireland) 1634 is a
statutory method to restore the status quo and is not a method of execution or enforcement but is
certainly a protective measure.
The first motion is dated 25 November 1993 but the defendants wife is joined as a party in that motion
and was not before this Court and accordingly the court makes no order on that motion paper and
there is another motion paper, also dated 25 November 1993, and on foot of that motion the court
does declare that in the particular circumstances of this case the defendant was duly and validly
served with an order of the Master of the High Court dated 16 July 1993 granting liberty pursuant to s.
5 of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988 to
enforce an English judgment entitled, between the plaintiff and the defendant and granted to the
plaintiff by the High Court of Justice of England and Wales (Queens Bench Division), Manchester
District Registry and dated 11 December 1992 and bearing record No. 1992 B No. 1721.
The court declares that the order of the Master of the High Court dated 15 July 1993 is valid and
effective and does comply with the requirements of Title III of the Brussels Convention 1968. In view
of the foregoing orders it does not seem necessary to the court to declare the English judgment is
enforceable but if required the court will so find.
The court is very grateful to counsel for the detailed and learned arguments advanced by both of
them.
*34
Representation
Solicitors for the plaintiff: Binchys
Solicitors for the defendant: Peter Nugent Co.
Jane Barron Barrister [This case is under appeal]
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