Judgment of Mr. Justice Francis D. Murphy delivered the 25th day of April
1997
This is an appeal from the judgment of Mr. Justice Kinlen delivered
on the 7th day of April 1995 and the Order made thereon whereby it
was declared that the Order of the Master of the High Court dated the
15th day of July 1993 was valid and effective and complied with the
requirements of Title III of the Brussels Convention on Jurisdiction and
the Enforcement of Judgments in Civil and Commercial Matters Act, 1968,
and further, that the judgment obtained in the High Court of Justice
Queen's Bench Division Manchester District Registry Mercantile List, on
the 11th of December 1992 was enforceable.
On the 11th day of December 1992 the Plaintiff/Respondent (Barnaby)
had obtained a judgment in the High Court of Justice Queen's Bench
Division Manchester (the English Judgment) against the Defendant/
Appellant (Mr. Mullen) in the sum of £271,879.15 for damages and
interest totalling £43,365 and costs.
The writ instituting the proceedings aforesaid was served on Mr. Mullen
by ordinary first class post on the 17th of January 1992 addressed to
Mr. Mullen at 5, Offington Court, Dublin 13. Following on that service, a
firm of solicitors in England entered an appearance to the proceedings
on behalf of Mr. Mullen and subsequently a defence was filed. In fact Mr.
Mullen was not represented on the hearing of the proceedings in England
for the reason, as explained in an affidavit sworn herein by his solicitor
Mr. Peter Nugent on the 22nd of February 1995, that Mr. Mullen did not
have sufficient funds to finance the proceedings. On the 16th day of July
1993 the Master of the High Court ordered that the English Judgment be
enforced within the State. The Order of the Master went on to provide as
follows:-
"A copy of this Order together with an Enforcement Notice to be
personally served on the Defendant.
The Defendant to have one month from the date of such service to appeal
against the making of this Order the Plaintiffs address for service is 38-39
Fitzwilliam Square.
Execution on foot of he said judgment to be stayed pending the expiration
of the time for appeal as stated as aforesaid."
By notice of motion filed in these proceedings and dated the 25th day of
November 1993 Mr. Mullen claimed (among other things) the following
orders:-
"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 variously
dated the 5th day of February 1993 and or 15th day of July 1993 granting
liberty pursuant to Section 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 (Queen's
Bench Division), Manchester District Registry and dated the 11th day of
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 the 15th July, 1993 is a nullity and ineffective and does not
comply with the requirements of Title III of the Brussels Convention on
Civil Jurisdiction and Enforcement of Judgments Act, 1968."
The motion was grounded upon the series of affidavits sworn by Mr.
Mullen's solicitor. Affidavits in opposition were sworn by members of
the firm of solicitors in Ireland acting on behalf of Barnaby. Mr. Mullen
did not swear any affidavit in the proceedings. This was an omission
to which the learned trial Judge properly drew attention. There were
matters in respect of which Mr. Mullen's solicitor could and did properly
give evidence but the crucial fact as to the service or non service of the
Order of the Master of the High Court on him was a fact uniquely within
the knowledge of Mr. Mullen. In addition only Mr. Mullen could give direct
evidence as, to the knowledge which he had of the making of the order
by the Master of the High Court and the date on which he acquired such
knowledge. The learned trial Judge was invited to draw inferences in
relation to these central issues from the fact that Mr. Mullen was, as Mr.
Nugent asserted, separated from his wife and that 5, Offington Court,
was not and had not been for many years his family home. On behalf of
Barnaby an impressive body of evidence was assembled to show that 5,
Offington Court, was the address provided and given by Mr. Mullen for
communication with him and more particularly it was clearly established
that certain communications posted to or served at that address did
reach Mr. Mullen. As Mr. Mullen was in a position to give direct evidence
on affidavit subject to the possibility of being cross-examined thereon
as to the nature of his communications with his estranged wife and the
system, if any, by which communications addressed to him or left at
that address would be communicated to him his failure to do so invited
inferences adverse to his case. Indeed the learned trial Judge concluded
that the reason why Mr. Mullen had not sworn an affidavit was that he was
unwilling to disclose the whereabouts of his residence. No explanation was
provided as to how or when he became aware of the Master's Order which
it appears was served on Mr. Mullen at 5, Offington Court, on the 5th day
of November 1993.
If there is a paucity of evidence in relation to the receipt direct or
indirect by Mr. Mullen of the Order of the Master there is a similar dirth of
information as to the efforts made to serve the Order on him. The only
history of the matter is to be found in a letter from the solicitors on behalf
of Barnaby to Mr. Mullen' s solicitor dated the 5th November 1993 which,
having set out the title of the above matter, went on to say as follows:-
"We write to advise that the Master's Order and Enforcement Notice in
this matter were served at the seventh attempt on your client on the
morning of the 5th November by handing true copies and showing the
originals of each document to your client's wife, Margaret Mullen, at
the family home at 5 Offington Court, Sutton, Dublin 13. We enclose a
courtesy copy of each document for your information. You will note their
contents."
No affidavit was sworn by the summons server or other agent who made
the six abortive attempts at service and the seventh more fruitful effort.
Neither the learned trial Judge nor this Court had the benefit of any
evidence as to what the summons server found or any communications
which he had on any of his seven efforts to effect service. However both
parties were agreed, and the proceedings in the High Court and in this
Court were conducted on the basis, that six attempts were made at
service and that a seventh was effective to the extent that documents
were handed to Mr. Mullen's estranged wife at 5, Offington Court, Dublin
13.
The application to enforce the English judgment was made pursuant
to Article 31 of the Convention on Jurisdiction and the Enforcement
of Judgments in Civil and Commercial Matters (including the protocol
annexed to that Convention) signed at Brussels on the 27th day of
September 1968 (The 1968 Convention) in accordance with Section 5
of the Jurisdiction of Courts and Enforcement of Judgments (European
Communities) Act, 1988. As provided by that Act and Order 42A of the
Rules of the Superior Courts that application was made ex parte to the
Master of the High Court and rule 9 of that Order expressly provides as
follows:-
"Notice of an Order granting leave to enforce a judgment under Section
5 of the 1988 Act shall be served together with the Order on the person
against whom the Order was made by delivering it to him personally, or in
such other manner as the Master of the High Court may direct."
Counsel for Barnaby fairly but necessarily recognised that the Order
aforesaid was never personally delivered to Mr. Mullen. However it
was argued on behalf of Barnaby that the service, such as it was, had
been effective and that Mr. Mullen unquestionably became aware of the
existence of the Order. This was necessarily so as he could not have
instituted the proceedings herein but for his knowledge of the making
of the Order. The learned trial Judge appears to have accepted that
contention when he expressed himself (at page 14 of the transcript of the
judgment) in the following terms:-
"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 service, as a matter of courtesy,
upon his solicitor."
On the other hand it does not appear from the Order made pursuant to
that judgment that the learned trial Judge deemed the service good or
purported to amend the Order of the Master as to the mode of service.
The Applicant relied heavily upon the decision of the European Court in
Isabelle Lancray SA v. Peters und Sickert KG [1990] ECR 1/2725. That
judgment was given on a reference under Article 177 to the Court for
a preliminary ruling on the proper interpretation of Article 27(2) of the
1968 Convention. The judgment of the Court contains the observations
following:-
"18. It must therefore be held that the requirements of due service
and service in sufficient time constitute two separate and concurrent
safeguards for a defendant who fails to appear. The absence of one of
those safeguards is therefore a sufficient ground for refusal to recognize a
foreign judgment.
19. The contrary view has been submitted that it is not necessary/ to
insist on proper service if the defendant has, in any event, had sufficient
time to arrange for his defence. According to that interpretation, due
service is merely prima-facie evidence that service was effected in
sufficient time, and failure to comply with the time requirement is the only
true ground for refusing recognition.-
20. That reasoning cannot be accepted. First, it is difficult to reconcile
that interpretation with the wording of the relevant provision or with
the Court's ruling cited above. Secondly, it would render completely
inoperative the requirement of due service. If the sole issue were whether
the document came to the defendant's attention in sufficient time,
plaintiffs would be tempted to ignore the prescribed forms for due service,
the requirements of which have in any event been considerably relaxed
by international agreements. That would create considerable uncertainty
as to whether documents has actually been served, thus thwarting
the uniform application of the provisions of the Convention. Finally, a
defendant could not know with certainty whether proceedings which might
lead to a finding against him had been properly instituted and whether it
was therefore necessary to arrange for a defence, a situation which would
also be inconsistent with the aims of the Convention."
Those observations are not directly relevant to the present case. They
relate to particular grounds for the refusal to recognise a judgment
obtained in a member State. The comments with regard to "due service"
relate to the substantive proceedings in the member State and not the
service of an Enforcement Order. Nevertheless the comments do emphasis
the importance of complying with the regulations in relation to service and
not merely meeting the needs of the defendant, in the preparation of his
defence to the proceedings.
The regulations requiring an Enforcement Order to be served on the
judgment debtor obviously have the purpose of affording the debtor the
opportunity of knowing that an Order which was made affecting him had
been granted on the ex parte application of the judgment creditor. But
the fact of service has another purpose within the scheme of the 1968
Convention and the legislation and regulations giving effect thereto. It is
the fact of service which fixes the terminus a quo for the purposes of any
appeal by the party affected.
Furthermore the provisions relating to execution are material. The
relevant Rule of the Superior Courts order 42A rule 13 (inserted by SI
number 14 of 1989), so far as material, provides as follows:-
"Any party wishing to issue execution on a judgment declared to be
enforceable under Section 5 of the 1988 Act must produce to the
appropriate officer an affidavit of service of the order granting leave to
enforce a judgment under Section 5 of the 1988 Act and of any order
made by the Master of the High Court, the High Court or the Supreme
Court (as the case may be) in relation to the judgment."
It is clear that some such procedure would be required. It would be
pointless to set up a procedure for ensuring that notice was given to
the defendant of the foreign proceedings without creating machinery to
ensure that such notice was given before the Order became operative.
Logically, therefore, the party obtaining the Order from the Master
must be in a position to provide evidence establishing not only that this
purpose has been effected but has been effected as of a particular date.
Accordingly I am satisfied that it would not suffice in the circumstances
of the present case to show, if such were the case, that the Defendant
became aware at some stage of the contents of the Order made by the
Master of the High Court. The procedure envisages and requires the
service of the Order personally or in any other manner prescribed by the
Master so as to fix the Defendant with knowledge of the order and also
the date on which he is deemed to have that knowledge. This purpose
could not be effected by an inference, however strong, that the party
concerned did become aware even alter a short but undefined interval of
the documents inadequately or improperly served.
Furthermore it seems to me - and I reach the conclusion with
considerable regret - that it would not be feasible for the Court to "deem
good" at a subsequent date a form of service which did not comply with
that prescribed by the Master originally or in any subsequent Order made
by him. If the service was not in compliance with the Master's Order in
the first place time for an appeal would not have started to run and if
deemed good after the expiration of one month the time for appealing
would have expired. Whilst the Applicant in the present case may be
deficient in merits the Court would not be justified in penalising him in
that way.
In the circumstances I would allow the appeal.
The Supreme Court
154/95
Hamilton CJ
Murphy J
Barron J
Between:
Barnaby (London) Limited
Plaintiff / Respondent
And
Desmond Mullen
Defendant / Appellant
Judgment of the Chief Justice, Mr. Justice Hamilton, delivered the 25th
day of April 1997.
I have had an opportunity of reading the judgment to be read by Mr.
Justice Murphy and I am in agreement with it. There are, however, two
points of practice and procedure referred to therein which I would like to
emphasise.
First, attention has been directed to the fact that the Defendant/
Appellant, Mr. Desmond Mullen, did not himself swear an affidavit. This
was a significant omission having regard to the fact that Mr. Mullen is
contending that he has a defence to the proceedings instituted against
him in the United Kingdom and furthermore it is implied by him or on
his behalf that he was not served with the Order of the Master of the
High Court. Clearly these are matters which could only have been dealt
with fully and properly in an affidavit to be sworn by Mr. Mullen himself
and it seems to me that it is important to stress that in circumstances
such as the present it is essential that the party himself should swear the
affidavit dealing with the merits of the case and any facts which may be in
controversy which are within his own knowledge.
Another matter of practice arising in the present case concerns the
numerous efforts which it is said were made to serve the Order of the
Master on Mr. Mullen.
It was the Order of the Master which directed the personal service of the
documentation on Mr. Mullen. If and when compliance with that Order
became impracticable the correct and obvious solution was to apply to the
Master for a variation of his Order to permit substituted service thereof.
Such an application would have obviated many of the problems which
subsequently arose.
I stress these two matters in the hope that these practical steps will be
adopted in future proceedings.