THE COURT OF APPEAL  
CIVIL  
 
Neutral Citation Number [2021] IECA 206  
Court of Appeal Record No. 2020/2 05 
High Court Record No. 201 8/14 FJ 
NO REDACTION NEEDED  
 
 
Whelan J.  
Costello  J.  
Murray  J.  
 
IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLES 
45, 46 AND 51 OF REGULATION NO. 1215/2012 AND PURSUANT TO 
ORDER 42A OF THE RULES OF THE SUPERIOR COURTS 
(JURISDICTION, RECOGNITION AND ENFORCEMENT OF 
JUDGMENTS) 2017  
 
AND  
 
IN THE MATTER OF A JUDGMENT OF THE SOFIA CITY COURT, 
REPUBLIC O F BULGARIA  
 
BETWEEN  
 
HENRY ALEXANDER BROMPTON GWYN – JONES  
 
 
 
 
APPELLANT/APPLICANT  
 
 
- AND – 
 
 
 
RICHARD WILLIAM MCDONALD  
 
 
RESPONDENT  
 
 
 
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JUDGMENT of Mr. Justice Murray d elivered  on the 23rd day of July 2021  
 
The application  
1. The appellant advances t hree grounds  in support of his application for orders refusing 
recognition and/or enforcement of a judgment of the Sofia City Court, Republic of Bulgaria .   
First, he says that the proceedings on foot of which that judgment was obtained were never  
properly served upon him , and that he therefore was not aware of the  action  when the  
Bulgarian court decided to make the order in question .  Second, he contends that 
enforcement of the judgment would be contrary to public policy  because, he says, the claim 
underlying the judgment is so inter -connected with a fraud perpetrated upon him by the 
respondent that the courts of this jurisdiction should not give effect to it .  Third, he asserts  
that the claims giving rise to the Bulgaria n proceedings are the subject of an arbitration 
before the ICC Court of Arbitration (‘ICC’) and that this affords a separate basis in law for 
not recognising or enforcing the judgment .   Each of these contentions was rejected by 
Meenan J. ([2020] IEHC 240).  
 
The background  
 
2. The facts relevant to the first of these propositions are few and to all intents and purposes 
undisputed , but the overall context relevant to the second and third question s is involved .  
While it will be necessary to return to some of the details later, the appellant ’s basic 
complaint is that in 2007 he was induced by fraudulent misrepresentation of the respo ndent 
to invest in a (then incomplete) shopping mall in Bulgaria known as Burgas Plaza .  He says 
that on foot of those representations he caused an initial sum of €15M to be  advanced  for 
the acquisition,  this being subsequently supplemented by further  but sma ller investments .  
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He says that he caused these advances  to be made on foot of assurances by the respondent  
that he would invest €5 M in the project , the agreement being that the interests would be held 
as to 60% by the appellant or his nominated company, and 40% by the respondent or his 
nominated corporate vehicle.   As further funds were required, it is said that the parties agreed 
that they would be invested in the same proportion as the original advances.  
 
3. The resulting joint venture was effected via a Maltese special purpose vehicle, Burgas 
Holdings Limited  (‘BHL’) , the respective investments and interests of the appellant and the 
respondent in BHL being made and to be held in the case of the former  by a Guernsey 
registered company Gort ( Holdings) Limited  (‘Gort’) , and in respect of the latter by an Isle 
of Man entity, Bridgewater (IOM) Ltd, later substituted by Balkan Holdings Limited 
(‘Balkan’) (later renamed MRP Brazil Limited).  The appellant is the ultimate beneficial 
owner of Gort.  He describes the respondent as a director and ‘ substantial shareholder’ in 
Balkan.   
 
4. The appellant contends that the respondent failed to advance the monies as he had promised  
to do .  The respondent, in reply, adopts the position that he never told the appellant that he  
would or had invested €5M of his own funds in the project , saying that he borrowed from 
the company that ultimately held the interest in Burgas Plaza which loan was then applied 
by it as part consideration against the sum payable.  The ap pellant, in response, contends 
that these loans were a sham allowing the respondent to acquire an equity interest in Burgas 
Plaza which far exceeded his minimal contribution.  He says that had the respondent not 
represented to him that he would and did mak e this investment, the appellant  would not have 
recommended to the board of directors of Gort that it become involved in the project  and 
would not have given  in connection with it (as he did) a personal guarantee to Piraeus Bank 
(Bulgaria)  in the amount of €20M .  He says that project was not a success and the appellant 
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says that he has lost all or a substantial part of his investment  (which, with interest, he most 
recently values at €2 6M).  He also has an exposure on foot of the personal guarantee.  
   
5. The appellant having in September 2014 become aware of the facts of th is deceit (as he 
alleges  it to be ), a number of legal actions have  followed .  In November 2014 Gort  obtained  
ex parte from the High Court of Justice of the Isle of Man  a worldwide freezing order against 
the assets of Balkan and for reasons explained in a lengthy a nd detailed judgment of 22 
February the following year , Deemster Gough J. refused an application by Balkan to 
discharge that order.  That interim relief was granted on foot of an intended arbitration 
proceeding  before the ICC , that arbitration  commencing in December 2014 and being 
subsequently compromised on terms set out in an order of the Manx High Court the 
following October.  The settlement followed the appointment of a receiver over the assets 
of Balkan  when it failed  to discharge 60% of the interim costs awarded against it in the  
Manx  proceedings.  The appellant has not recover ed anything from Balkan.  He says, 
accordingly, that he remains at a loss in respect of the funds of which – he claims – he was 
thus defrauded.   
 
6. On January 28 2020 the app ellant and Gort commenced a second ICC arbitration against the 
respondent and  ten corporate entities .  I will explain the basis for and claims in this second 
arbitration later.  I n August 2020 the ICC decided that it would permit the claimants to 
proceed only against the respondent and one of those entities.  That order was appealed  and 
the appeal was rejected by a Paris court  in April 2021 . The r espondent challenge s the 
jurisdiction of this arbitral tribunal to hear and determine the claim.  
 
7. At the same time, the respondent initiated litigation against the appellant in Bulga ria. In 
those proceedings (‘ the first Bulgarian proceedings’ ) the respondent sought to recover 
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monies due on foot of loan contracts entered into between the appellant and respondent on 
March 28 and April 26 2011.  The appellant was represented in those proceedings, 
contending unsuccessfully that the loan contracts had to be seen as part of the various 
contractual arrangements entered into in relation to the Burgas Plaza project and that the 
obligation under the loan contracts was performed by other agreed means and/or should be 
the subject of some form of deduction or set off.   On October 31 2017 the respondent 
obtained judgment in the first Bulgarian proceedings in the Sofia City Court in the sum of 
€425,926 together with costs and interest.  This was confirmed by decision dated December 
6 2018 of the Court of Appe al, Sofia Civil Divisio n, the Bulgarian Supreme Court of 
Cassation (‘SCC’) thereafter  (on October 10 2019)  refusing to entertain a further appeal 
from that decision .  The loan contract  on foot of which the judgment the subject of this 
application was granted is identical to that on foot of which the judgment the subject of this 
application was obtained .  All of the agreements were governed by Bulgarian law and were 
subject to the exclusive jurisdiction of the Bulgarian courts.   
 
8. In a reserved judgment  delivered in December 2020 ([2020] IEHC 689), Barr J. refused the 
appellant’s application for orders  refusing to enforce or recognise th e judgment of the Sofia 
City Court  in the first Bulgarian proceedings .  The appellant had contend ed in those 
proceeding s (as he does here) that enforcement of that judgment would be contrary to public 
policy  and/or should be stayed pending the outcome of the second ICC arbitration .  That 
ruling has been appealed to this court.  The appeal is pending . 
 
The judgment of November 11 2016    
 
9. The judgment the subject of this appeal was obtained in a second set of proceedings 
instituted by the respondent against the appellant in Bulgaria , arising  from a  third  alleged 
loan agreement pursuant to which, the respondent claimed, h e had lent to the appellant a 
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sum of € 110,700.  The respondent said that that agreement was entered into on April 1 8 
2011.  
   
10. The evidence is that o n November 19 2015 the documents initiating the se proceedings were 
sent by courier to  Ballynatray  House in Youghal , County Cork.  They were signed for by a 
‘N. O’Riordan ’.  In his first affidavit grounding this application, the appellant describes this 
property as his ‘ home address’ . The appellant says that he was not present at his residence 
at this time, that he was not aware that legal documents were delivered, that he di d not 
authorise  ‘N. O’Riordan ’ to accept the document s and that he personally never received 
them.  He says little about ‘N. O’Riordan ’, stating neither whether a person of that name 
was at the property at the relevant time nor, if he was (the appellant describes the person as 
‘Mr. O’Riordan’ ), whether he has sought or obtained any explanation from him  as to the 
circumstances in which he signed for such correspondence and failed to advise the appellant 
of it.   In his application to set aside the judgment before the Bulgarian Courts his lawyers 
assert that ‘N. O’Riordan ’ is not a member of the appellant ’s family, and is not a worker, 
employ ee or employer.  
   
11. The Sofia City Court has certified that the document instituting the proceedings or an 
equivalent document was served on the appellant on 19 August 2016.  The evidence before 
the High Court was to the following effect :  
 
(i)  On 19 August 2016 the document initia ting the proceedings was sent to the 
appellant’s home address by the office of the Courts Service in Cork.  It was 
sent by registered post and was purportedly accepted at that address on that date.  
The appellant says he was not in Ireland on this date and he exhibits a number 
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of documents corroborating his assertion that he was outside the jurisdiction at 
that time .  He avers that while he cannot dispute that ‘ someone may have 
accepted and signed for a registered letter’ , he says that he did not authorise 
anyone to do so  and was unaware that any legal document had been delivered 
on this occasion.  He says that he was ‘ not furnished ’ with a copy of any letter 
or document of that nature.   While he explains in his grounding affidavit that he 
instructs lawyers and accountants to look after his business affairs he says that 
he would not be expecting to receive any documentation of this kind at the 
property .  He does not  aver to taking any step s to ascertain who signed for that 
document or as to how it was signed for at his home but never received by him.   
In the proceedings brought to resist recognition or enforcement of the judgment 
delivered in the first Bulgarian proceedings, the appellant d escribes this 
property in Cork as his ‘ family home’ . 
  
(ii) On November 11 2016, judgment was granted by the Sofia City Court in the 
amount of €119,522.24 (being the sum of €110,799 in respect of the amount 
claimed together with costs as measured).  The appella nt says he was not aware 
of the proceedings on that date and was, therefore, not represented before the 
court.  He says that had he been aware of the proceedings he would have 
instructed Bulgarian lawyers to defend the claim  (as he did the first Bulgarian 
proceedings) .  
 
(iii) On 26 June 2017, a notification of that judgment was sent to the appellant via 
the Courts Service.  It too was sent by registered post and was signed for.  The 
appellant says that he was not in Ireland on tha t date  (again exhibiting various 
documents corroborating his claim that he was outside the jurisdiction at that 
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time) .  He tenders no evidence to explain how it came about that a registered 
letter was signed for at his home but he was not advised of it.    
 
(iv) The appellant had two weeks from receipt of notice of this judgment to appeal 
it to the Sofia Court of Appeals.  He never availed nor  sought to avail of any 
such appeal  when he says he did become aware of the judgment .  No evidence 
has been adduced before this court as to whether an application could have been 
made to extend the time for such an appeal.  That judgment was thereafter 
declared enforceable on 1 0 July 2017.    
 
(v) On 30 October 2017, the respondent’s solicitors w rote to the appellant at his 
address in Youghal.  While he was not present in Ireland on that date, he was 
made aware of this correspondence.  However, he says that he believed that this 
correspondence referred to another claim brought against him by the r espondent 
in the Bulgarian courts  (a reference to the first Bulgarian proceedings, which 
were then pending judgment) .  He passed the matter to his solicitors who wrote 
to the respondent’s lawyers, obtaining a response on November 8 forwarding a 
copy of  the judgment  the subject of this appeal .  This, the appellant says, was 
the first time he learnt of that judgement.  
 
(vi) On 8 February 2018 the appellant applied to the SCC  to set aside the judgment 
of the Sofia City Court on the grounds that he was not aware of the proceedings 
when the judgment was granted.   That application was made not on the merits, 
but only on the basis that the appellant had not been duly served with th e 
proceedings .  It was neither alleged in this application that the judgment had 
been obtained by fraud nor that the underlying proceedings were captured by a 
binding arbitration clause . No evidence has been tendered to this court as to 
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whether the Bulgari an courts would have jurisdiction to entertain a claim to set 
aside a default judgment on any of these grounds.  
 
(vii) On 3 April 2018, the respondent’s solicitors wrote to the Under Sheriff for the 
County of Waterford enclosing a fieri facias  they had obtained.   On 24 April 
the Under Sheriff served the appellant with an application for payment of 
€119,620.21 on foot of the fieri facias . 
 
(viii) On April 27, the SCC issued a decision that it had accepted jurisdiction to 
consider the appellant’s application to set aside the judgment.  The appellant 
thereafter advised the Under Sheriff of this decision .  The appellant’s 
application to have the judgment set aside was heard by the SCC on June 12  and 
on July 16 he applied to the High Court for an interim order restraining the 
respondent from causing any execution to occur on foot of the Bulgarian 
judgment.  That interim order was granted by Cross J. on that date . 
 
(ix) The SCC delivered its decision on the appellant’s set aside application on 17 
July. That judgment specifically addressed the issue of service, concluding that 
service in accordance with the law of this jurisdiction had been established by 
certificates unde r Article 10 of Regulation (EC) No. 1393/2007 and that there 
had been no allegations made nor evidence adduced as to what it termed 
‘procedural violations of the Irish law by the services done through the Court’ . 
 
(x) On December 27 2018 a further appeal was l odged by the appellant with the 
SCC. That further appeal was determined on 25 January 2019, the appellant’s 
application being refused. Another , further , purported appeal from that decision 
was rejected on 25 March 2019.  
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Regulation 1215/2012  
 
12. The Recast Brussels I Regulation (Regulation (EU) No. 1215/2012 ) (‘the Recast 
Regulation’ ) applies to civil and commercial matters and provides for uniform rules 
governing  jurisdiction in disputes and the enforcement and recognition of judgments  arising 
from s uch claims .  It replaced Regulation (EC) No. 44/2001 (‘ the Brussels  I Regulation ’), 
continuing a regime originally introduced by the 1968 Convention on Jurisdiction and the 
Enforcement of Judgments in Civil and Commercial Matters and later Conventions (‘ the 
Brussels Convention’ ).  To that end the Recast Regulation perpetuates the pre-existing 
system  of mutual recognition and enforcement while removing the requirement under the 
Brussels I Regulation  of exequatur by which a declaration of enforceability was  required 
as a precondition to recognition in a receiving state.  The intent – reflected in Recital 26 and 
Article 36 of the Recast Regulation  – is that judgments given in  one Member State should 
be recognised i n all others without the need for any special procedure , those judgments 
being treated as if they had been given in the Member State addressed.  
 
13. In facilitating the free circulation of judgments within the European Union the Recast 
Regulation  and its predecessors  thus sought to simpl ify the procedure for , and to reduce the 
number of grounds which operate to prevent , recognition and enforcement ( Case 166/80 
Klomps v. Michel [1981] ECR I-1593 at para. 7).   Such e xceptions now appear in Article 
45(1) of the Recast Regulation and, when construed together with Article 46, enable refusal 
of both recognition and enforcement where inter alia (a) this is manifestly contrary to public 
policy in the receiving state and (b) a judgment has been obtained in default of appearance 
and there has been a failure to serve  the proceedings  in sufficient time and in such a way as 
to enable the defendant  to arrange for his defence.  
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14. Article 45(1)  falls to be construed having regard to Article 45(3) and Article 52 .  The former 
makes it clear that ‘ the jurisdiction of the court of origin may not be reviewed’ proceeding 
to stress that ‘ [t]he test of public policy  … may not be applied to the rules relating to 
jurisdiction’ .  Article 52  – with striking emphasis - precludes review by the court of the 
receiving state of the substance of the underlying judgment:  
 
 
‘Under no circumstances may a judgment given in a Member State be reviewed as to 
its substance in the Member State addressed’ . 
 
15. Three specific consequences of relevance to this appeal follow  from the text of these 
provisions  when read in the light of the underlying objectives of the Recast Regulation as a 
whole .  First, the circumstances in which the receiving court will refuse to recognise and 
enforce a judgment to which the Recast Regulation applies will, by definition, be 
exceptional  (Case C-414/92  Solo Kleinmotoren  Gmbh v. Boch [1994] ECR I -2237 at para. 
20).  Second  because the exceptions provided for in Article 45(1) may not be applied to 
review either the jurisdiction of the issuing court to hear the proceedings, nor the substance 
of the underlying decision  in those proceedings , the court asked to recognise or enforce a 
judgment to which the Recast Regulation applies may not review the accuracy of the 
findings of law or fact made by the courts of the State of origin ( Case C -7/98 Krombach  v. 
Bamberski  [2000] ECR I -1935 at para. 36) .  Third, it logically follows from the rationale 
for the system of mutual recognition and enforcement that the onus is on the party seeking 
to avoid recognition and enforcement to establish the facts or circumstances which require 
the application of one or other of these exception s.   
   
The provisions governing s ervice  
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16. Article 45(1)(b) provides that on the application of any interested party the recognition of a 
judgment shall be refused:  
 
‘where the judgment was given in default of appearance, if the defendant was not served 
with the document which instituted the proceedings or with an equivalent  document  in 
sufficient time and in such a way as to enable him to arrange for his defence, unless the 
defendant failed to commence proceedi ngs to challenge the judgment when it was 
possible for him to do so’    
   
17. The first of these conditions being obviously satisfied  here, this case requires a consideration 
of the meaning and application of the remaining requirements of the provision . In thi s 
regard , it is important to observe  that a defendant may be ‘served’ with proceedings for the 
purposes of Article 45(1)(b) even though that service might be technically defective , if any 
defects are remedied and/or are not such as to infringe  the rights of defence.  This follows 
from the fact that  Article 34 of the Brussels I Regulation ( the predecessor to Article 45(1)(b) 
of the Recast Regulation)  did not replicate the requirement that proceedings be ‘ duly served’ 
previously incorporated in Article 27 of the Brussels Convention ( Case C -283/05  ASML  
Nederland BV  v. Semiconductor Industry Services Gmb H, [2006] ECR I -12041 at para. 18 ).   
   
18. However, and conversely, even if there has been  perfect  ‘service’ , Article 45(1)(b) will still 
enable the receiving court to refuse recognition or enforcement if in the particular 
circumstances of the case the rights of defence have been impeded by reason of defendant 
having insufficient time to prepare and orga nise his defence prior to the hearing of the 
proceeding  (see Dickinson and Lein , ‘The Brussels I Regulation Recast ’, Oxford , 2015 at 
para. 13.326) .  The provision is thus properly understood as addressed to function rather 
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than form: the relevant inquiry i s not whether there was or was  not technically correct 
service, but whether in all of the circumstances the defendant has had sufficient notice of 
the proceedings so as to afford him a proper opportunity to present his response to the claim 
prior to the entry of judgment.  
 
19. Council Regulation (EC) No. 1393/20 07 on the service in member states of judicial and 
extra judicial documents in civil and commercial matters  (‘the Service Regulation’)  applies 
where certain judicial or extrajudicial documents have to be transmitted from one Member 
State to another for service there.  It replaces an earlier instrument to like effect – ‘the first 
Service Regulation ’ (Council Regulation (EC) No. 1348/2000) - and requires each member 
state to designate transmitting agencies, receiving agencies and a central body responsible 
for assisting the transmitting age ncies .  As their description suggests, t he transmitting and 
receiving agencies are (respectively) the bodies competent for the transmission of 
docume nts to be served in another Member State, and receipt of such documents from such 
a State.  
 
 
20. The first Service Regulation was implemented in this jurisdiction by a number of provisions 
of the Rules of the Superior Courts and Circuit Court Rules, including S.I. No. 883/2004 , 
Circuit Court Rules (Service in Member States of Judicial and Extra -Judicial Documents in 
Civil or Commercial Matters).  These were subsequently amended by  S.I No. 375/2009,  
Circuit Court Rules (Service in Member States of Judicial and Extra -Judicial Docu ments in 
Civil or Commercial Matters), the latter reflecting the coming into effect of the Service 
Regulation.    
   
21. Order 14 B Rule 8 of the Circuit Court Rules designates the mode of service of proceedings 
issued in another Member State  and, at the times r elevant to these proceedings  and for the 
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purposes of the service in issue here , identified the County Registrar for the county of Cork 
as ‘Receiving Agent’ .  It state s as follows:  
 
‘When properly received, the County Registrar as Receiving Agency, shall serve the 
document or documents by registered post or by particular form requested by the 
Transmitting Agency, unless such a method is incompatible with Irish law, in accordance 
with A rticle 7 of the Regulation. ’ 
   
22. In so providing, Order 14B Rule 8 reflects Article 7 (1) of the Service Regulation:  
 
 ‘The receiving agency shall itself serve the document or have it served , either in 
accordance with the law of the Member State addressed or by a particular method 
requested by the transmitting agency, unless that method is incompatible with the law of 
that Member State’ . 
 
23. The evidence before the High Court in this case include d certificates of service as provided 
for in Article 10 of the Service Regulation and as issued from the Cork Courts Office 
confirming completion of service by registered post at Ball ynatray House on August 19 
2016 and June 26 2017.   The appellant has adv anced no basis on which this court could 
conclude other than that these referred respectively to the document initiating the 
proceedings or an equivalent document and the judgment of the Sofia City Court .  This is 
what is in the certificate issued by that court pursuant to Article 53 of the Recast Regulation.   
Indeed, the appellant  has said nothing from which the court could conclude that the 
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proceedings were not served in this way , focussing instead on the fact that they d id not come 
to his attention.  
   
24. Before looking to the appellant’s substantive argument  in the light of the foregoing , it is 
convenient to address two narrower issues he raises around the operation of these provisions.  
The first point arises from the text  of Order 14B of the Circuit Court Rules.  He says that at 
the time of the purported service of the proceedings  service by registered post was not 
authorised by, and was thus ‘ incompatible with’ , Irish law and that, accordingly, the service 
by that means on August 19 2017 was ineffective.  The argument is without foundation and 
is based upon a misreading of the provision.  Order 14 B Rule 8 is properly read as 
authorising (a) service by registered  post or (b) service in a form requested by the 
transmitting agency, provided that the form so requested by that agency is not incompatible 
with Irish law.  The service effected on the relevant date fell within the first of these 
alternatives  and was thus effective.  Indeed, absent a request from the Bulgarian transmitting 
agency (and there was none)  the only method of permissible service was by registered post.  
   
25. For similar reasons, an argument advanced by the appellant and based upon Order 9 Rule 2 
of the Rules of the Superior Courts insofar as it required personal service of a summons on 
a defendant save where it appears by affidavit that the defendant is personally within the 
jurisdiction and that due and reasonable dilige nce has been exercised in endeavouring to 
effect such service, is also misconceived.  Order 9 Rule 2  governs service of domestic legal 
proceedings.  The method for serving proceedings initiated in another member state  for the 
purposes of the Recast Regulat ion is prescribed by Order 14B Rule 8 of the Circuit Court 
Rules  and the question here is therefore (a) whether the proceedings in issue here were 
served in accordance with the requirements of that provision  and (b) if so, the relevance of 
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the appellant’s claim notwithstanding that service , he was unaware of the proceedings when 
they came before the Sofia City Court . 
 
26. Although not referred to by the parties, the provisions of Article 19(4) of the Service 
Regulation should also be noted.  It provides:  
 
‘Where a writ of summons or an equivalent document has had to be transmitted to 
another Member State for the purpose of service under the provisions of this Regulation 
and a judgment has been entered against a defendant who has not appeared, the judge 
shall have the power to relieve the defendant from the effects of the expiry of the time 
for appeal from the judg ment if the following conditions are fulfilled:  
 
(a) the defendant, without any fault on his part,  did not have knowledge of the 
document in sufficient time to defend, or knowledge of the judgment in sufficient 
time to appeal; and  
 
(b) the defendant has disclosed a prima facie  defence to the action on the merits.  
 
An application for relief may be filled only within a reasonable time after the defendant 
has knowledge of the judgment.  
Each member state shall make it known, in accordance with Article 23(1), that such 
application will not be entertained if it is filed after the expiry of a time to be stated by 
it in that communication, but which shall in no case be less than one year following the 
date of the judgment.’  
 
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(Emphasis added)  
 
Service: the substantive issue  
   
27. The substantive argument advanced by the appellant  in this regard  is this.  Where presented 
with evidence that the defendant never actually received the originating document and was 
outside the jurisdiction at the time of the purported  service – he says – the court must do 
more than be satisfied that service was in compliance with Order 14 of the Circuit Court 
Rules .  It is, it is said, in addition necessary for the court to satisfy itself that the proceedings 
were served in sufficient time and in such a way as to enable him to arrange for his defence.  
This, it is said, the High Court judge  failed to do.  
   
28. In addressing th e issue of service , Meenan J. noted the judgment of the SCC .  It specifically 
considered the issue of service and found it good, commenting that the set aside request did 
not state any allegations about procedural violations of Irish law by the service effected 
through the court, and that it did not  identify  any evidenc e in this respect .  Meenan J. 
proceeded (at para. 13):  
‘It seems to me that the only conclusion which I can draw from this is that service was 
lawfully effected of the document described as being: “the document instituting the 
proceedings or an equivalent document” . Service by registered post does not mean that 
it has to be personal service. As mentioned earlier in this judgment, there is a complete 
lack of any information as to what happened to the document after delivery had been 
accepted, or whether the applicant carried out any investigation or fully established the 
circumstances he claims led to a situation where he did not have sight of it. The  document 
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was served nearly four months in advance of the day when judgment was given and there 
is no suggesti on that such a period was not adequate for the preparation of a defence. ’ 
29. While it is the case that the period available to the appellant was ten weeks rather than the 
four months  referred to by the trial Judge , I can see no error of law here.   Three points  arise.  
   
30. First, it is clear that w hen Article 45(1)(b) refers to ‘ service’  it does not (as was suggested 
in the course of the appellant’s oral submissions) require personal  service and, as stated in 
Klomps v. Michel at para. 19 (addressing A rticle 27.2 of the Brussels Convention) there is 
no requirement under the relevant provisions that a court in granting judgment against a 
defendant who has not appeared must have ‘ proof that the document which instituted the 
proceedings was actually brough t to the knowledge of the defendant’ . Instead, the provision 
must be construed having regard to the Service Regulation (see Tavoulareas v. Tsavliris 
[2006] EWCA Civ. 1772, [2007] 1 WLR 1573 at para. 8  - 'the word "service" in Article 
34(2) of the Judgments Regulation must .. have the same meaning as in ... the Service 
Regulation ; MD v. CT [2014] EWHC 871 at para. 11) .  This, indeed,  follows from Article 
28 of the Recast Regulation, which envisages that service effected on a defendant will 
comply w ith either the Service Regulation or, as the case may be,  Article 15 of  the 1965 
Hague Service Convention.  
 
31. Thus, service in accordance with the requirements of the law of the receiving state may be 
service for the purposes of Article 45(1)(b), and to that extent may include modes of service 
which may result in a defendant not actually becom ing aware of the proc eedings before 
judgment .  This is particularly liable to occur  where postal service is authorised  (see Lebek 
v. Domino Case C -70/15  ECLI:EU:C:2016:524  and British Seafood Ltd. v. Kruk [2008] 
EWHC 1528) or indeed where the relevant legal system enables subs tituted service (such as 
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service by public notice).  Here, as I have noted, there is in my view no issue but that the 
proceedings were in fact served as required by national law and, to that extent, Meenan J. 
was clearly correct in so concluding.  
 
32. Where, as here, service has been properly effected (or indeed where it has not been effected 
but the defendant has nonetheless become aware of the proceedings), the court in 
determining whether the defendant has had sufficient time to arrange for his defen ce will 
normally simply gauge this from the time between that service and the date of the 
proceedings having regard to the period required to retain lawyers, obtain advice and prepare 
his or her defence.  However, there will be exceptional cases in which e ven where the time 
was adequate (as it was here), the particular circumstances are such that the defendant may 
legitimately contend that the time or mode of service was such that he or she was not in a 
position to prepare their defence  to the action.    
 
33. The scope of the inquiry required in this situation was explained  in Klomps v. Michel as 
follows ( at para. 19):  
 
‘As a general rule the court in which enforcement is sought may accordingly confine 
its examination to ascertaining whether the period reckoned from the date on which 
service was duly effected allowed the defendant sufficient time to arrange for his 
defence.  Nevertheles s, the court must consider whether, in a particular case, there are 
exceptional circumstances which warrant the conclusion that, although service was 
duly effected, it was, however, inadequate for the purpose of enabling the defendant to 
take steps to arrang e for his defence and, accordingly, could not cause the time 
stipulated by Article 27 , point 2, to begin to run’  
 
- 20 - 
 
34. These ‘ exceptional circumstances’ afford the legal basis on which a party who has been 
properly served with proceedings under the Service Regu lation but who was not in fact 
aware of the proceedings prior to the entry of judgment in the courts of another Member 
State, may seek to assert a claim for non -recognition or enforcement (Dicey and Morris , 
‘The Conflict of Laws ’ (15th Ed. 2012 ) at para. 1 4-233).  The court in Klomps v. Michel 
explained  the relevant factors (at para. 20):  
 
‘In considering whether it is confronted with such a case the court in which enforcement 
is sought may take account of all the circumstances of the case in point, including the 
means employed for effective service, the relations between the plaintiff and the 
defendant or the nature of the steps which had to be taken in order to prevent judgment 
from being given in default.  If, for example, the dispute concerns comm ercial relations 
and if the document which instituted the proceedings was served at an address at which 
the defendant carries on his business activities the mere fact that the defendant was 
absent at the time of service should not normally prevent him from  arranging his 
defence, above all if the action necessary to avoid a judgment in default may be taken 
informally and even by a representative.’  
   
35. This leads to  the second point.  The determination of whether the defendant has in any given 
case been afford ed his rights of defence requires a factual rather than a legal inquiry .  This 
must be conducted on a case by case basis and independently of the procedural laws of either 
the issuing or receiving State.  However, in undertak ing that analysis the court is entitled to 
take account of whether the defendant was responsible for the failure of a duly served 
document to reach him . It is for this reason that in  Case C-49/84 Debaecker v. Bouwman  
[1985] ECR 01779 , the CJEU observed that the ‘ behaviour’ of a defendant was one matter 
- 21 - 
 
that could be assessed by the court in the Member State in which enforcement was sought  
and in the light of which it determined whether service was effected in sufficient time.  The 
point was repeatedly made in British Seafood v. K ruk (see paras. 25, 27(c), 32 and 33) where 
service by post that was good under English law was found compliant with the relevant 
provisions of the Brussels I Regulation even though the appellant contended that it had never 
become aware of the proceedings : the appellant had been advised at an early stage that it 
was required to arrange for their defence to, or to challenge, a payment order made in the 
Polish courts if it wished to prevent it from being validated, and it ought to have made 
arrangements by w hich post sent to an old address was forwarded to its new registered 
office.  
   
36. This is just common -sense: if a defendant who did not receive notice of proceedings that 
have been properly served in accordance with law wishes to contend that his or her righ t of 
defence was impaired so as to enable them  to resist enforcement of a default judgment, it is 
incumbent on them to establish that their failure to become aware of the proceedings was 
not as a result of their own default.  This , indeed,  is why Article 1 9(4)(a) of the Service 
Regulation expressly imposes such a requirement  as a precondition to a right to an appeal 
on the merits in proceedings in which a default judgment has been obtained (‘without any 
fault on his part’ ). 
   
37. Third  it follows that in this case ( as the passage I have cited above from the judgment of 
Meenan J. suggests ) any consideration of whether the appellant’s rights of defence were 
thus i nfringed  by the entry of a default judgment in November 2016 on foot of proceedings 
(a) delivered to his home and signed for in November 2015 , (b) served by registered post  at 
the same address in August 2016  and (c) followed by a judgment appealable on its merits 
- 22 - 
 
which was also delivered to that same address  by registered post, requires some explanation 
of how the appellant, notwithstanding the delivery of the proceedings in  this way, never 
became aware of the documentation.  In this case, at the very least , this would require 
evidence from which it could be deduced that the appellant’s  ignorance of the proceedings 
was due to circumstances that were both explained, and reason able.   
 
38. In this case , the appellant has failed:  
 
 
(i) to explain whether he knows or has sought to ascertain who ‘ N. O’Riordain’ was, 
whether such a person received the documentation in November 2015 and why that 
documentation was never communicated to the appellant ; 
   
(ii) to explain what steps were taken by him to determine who had accepted the 
registered post delivered on August 19 2016 and (if he has ascertained who did 
accept it) has failed to state that and why that person did not advis e him of the 
correspondence . 
 
(iii) similarly, to identify what he did to ascertain who had accepted registered post 
delivered on July 17 2017 serving him with the judgment of the Sofia City Court 
(having regard to the fact that he had two weeks from that servic e to appeal against 
the decision on the merits) . 
 
(iv) to lay any evidence on the basis of which the court could conclude that the appellant 
had taken the reasonable and prudent steps necessary to ensure he was aware of 
correspondence and papers delivered to hi s home  (and see in this regard British 
Seafood Ltd. v. Kruk ).   
 
- 23 - 
 
39. In the absence of such evidence, the court cannot be satisfied that the appellant’s asserted 
lack of knowledge of the proceedings was such as to engage or i nfringe  his ‘ rights of 
defence’ .  This conclusion reflects the con cern expressed by Meenan J. at para. 13 of his 
judgment .  Therefore, his  case insofar as it was based upon Article 45(1)(b) , must fail.  
 
Service: the final condition  of Article 45(1)(b)  
 
40. Meenan J. noted the language expressing the final condition in Article 45(1)(b) – ‘unless 
the defendant failed to commence proceedings to challenge the judgment when it was 
possible for him to do so’  observing (at para. 6) that this ‘ could mean where, as in this case, 
the defendant/applicant did commence proceedings to challenge the judgment then this 
Court could not consider the matter of service’ . 
   
41. To understand the operation of this part of the Article it is necessary to revisit the allocation 
of function in respect of default judgments as between the courts of the transmitting and 
receiving Member States .  Where an applic ation for such judgment is made , the Recast 
Regulation envisages in the first instance that the court of the Member State in which the 
proceedings are brought will , when determining whether to grant judgment  in proceedings 
served in another Member State , satisfy itself that the proceedings have been served.   This 
obligation arises from the combined effect of Article 28 (3) of the Recast Regulation  and 
Article 19(1) of the Service Regulation.     
 
42. If the defendant in the State in which enforcement is sought challenges the recognition or 
enforcement  of that judgment , he has the facility (subject to the terms of Article 45(1)(b) ) 
to contest the fact of service and the adequacy of the opportunity afforded to him to prepare 
- 24 - 
 
his defence.  In other words , the fact that the court issuing the judgment has satisfied itself 
when so doing that there has been good service does not affect the power of the court in the 
receiving state to examine service.  This is referred to by the CJEU as ‘ a double review’ (see 
ASML Nederland BV v. Semiconductor Industry Services Gmb H at para. 29)  Accordingl y, 
as it is put by Briggs ( Civil Jurisdiction and Judgments (6th Ed. 2015) at para. 7.19 ), (a) the 
defendant must have been properly served according to the law of the adjudicating court but 
(b) it is thereafter for the court called upon to recognise the judgment to decide for itself 
whether the defendant was served in such a way, and in sufficient time, as to reasonably 
allow him to take steps to defend himself.  
   
43. It is for this reason that Delaney and McGrath ‘Civil Procedure ’ (4th ed. 201 8) (in a passage 
relied upon by the appellant) say that it is for the court in which recognition of the default 
judgment is sought to carry out an examination as to whether the defendant was served with 
the relevant proceedings in sufficient time to arrang e for his defence ( at para. 26 -204) and 
it is in that same context that a similar statement (also relied upon by the appellant) appears 
in the judgment of the court in Klomps v. Michel (a case decided under the Brussels 
Convention and prior to the addition  of what now appears as the final clause of Article 
45(1)(b)).  
   
44. However, the  language in th at final clause (‘unless the defendant failed to commence 
proceedings to challenge the judgment when it was possible for him to do so’ ) imports a 
distinct i nquiry .  It was introduced into the Brussels I Regulation with a view to reversing 
the effect of the decision of the CJEU in Case C -123/91  Minalmet GmbH v. Brandeis Ltd. 
[1992] ECR I -5661, in which it had been determined that a failure to undertake proceed ings 
to challenge a procedural irregularity in service in the courts of the issuing state  did not 
- 25 - 
 
preclude the issue being addressed in the courts of the receiving state .  The effect of the 
clause is that a defendant who fails to avail of an appeal mechanism in the issuing State may 
not rely upon the exception in Article 45(1)(b).  This has been more recently held to extend 
to a failure to exhaust  the appeal provided for by Regulation 19 of the Service Regu lation  
(Lebek v. Domino ). 
 
45. The theory  underlying this is that if a party against whom a default judgment has been 
entered has the right to appeal against the decision, their rights to defence have not in fact 
been impaired thereby.  This was explained by t he CJEU in  Case C -420/07  Apostolides v. 
Orams [2009] ECR I-03571  (at para. 78):  
 
‘… the rights of the defence that the Community legislature wished to safeguard by 
Article 34(2) of Regulation No. 44/2001 are respected where the defendant did in fact 
commence proceedings to challenge the default judgment and those proceedings 
enabled him to argue that he had not been served with the document which instituted 
the proceedings or with the equivalent document in sufficient time and in such a way 
as to enab le him to arrange for his defence.’    
   
46. It follows that the effect of this clause is not merely that a failure to exhaust a right of appeal 
will preclude reliance upon Article 45(1)(b), it also means that where a defendant does 
invoke that right (as the a ppellant has done here) and fails in the court of the Member State 
of origin, he will ordinarily have no basis for relitigating the issue of service in the courts of 
the receiving state.  
   
47. I say ‘ ordinarily’  because circumstances may arise in which the facility to apply in the 
jurisdiction of origin may not afford a sufficient implementation of the right of defence.  
- 26 - 
 
This may be the case if the defendant does not have sufficient information from the 
documentat ion furnished to him to exhaust that  appeal , and it is possible that it would be the 
case if the court in th e state of origin either could not , or failed to , address the requirement  
that the rights of defence of the defendant  have  not been infringed by th e manner of service 
as imposed by the final clause of Article 45(1)(b).   As it is explained by Dicey and Morris 
‘Conflict of Laws ’ at para. 14 -233 ‘ [a] defendant should not be penalised either unless the 
steps which were open to him to take were not, in e ffect, steeper and more difficult than 
would have been the case if he had been properly notified of the institution of the 
proceedin gs and had had an opportunity  to participate’ .   
 
48. This reflects the limits of a fundamental principle underlying the Recast Regulation , that is 
that individuals are required to use all the legal remedies made available by the law of the 
Member State of origin save where specific circumstances make it too difficult or 
impossible to avail of those remedies ( Case C -559/14 Meroni v. Recoletos Ltd. 
ECLI:EU:C:2016:349  at para. 48).   Similarly  it may follow that where a defendant has 
instituted proceedings in the courts of the Member State of origin to review the judgment 
but that review either did not permit the full inquiry r equired by the final clause of Article 
45(1)(b) (which requires a consideration not merely of service but of whether the rights of 
defence have been impaired because of the timing or manner of service), or has addressed 
the appeal in such a manner that the  right to a fair hearing has been denied, the courts of the 
member state addressed may consider whether there has been service .  Thus, the Advocate 
General in her opinion in Apostolides v. Orams  (at para. 121) noted that the defendants in 
that case had the opportunity of commencing proceedings to challenge the default judgment 
and availed themselves of that opportunity. Therefore, she said, recognition and 
enforcement could not be refused on the basis of irregularities in service, at least ‘ where the 
- 27 - 
 
right to a fair hearing is not undermined because of particular circumstances such as the 
organisation of the appeal proceedings’ . 
 
49. However, absent these exceptional circumstances if a defendant can and does bring such a 
challenge in the courts of the state o f origin but fails in  it, then  the court of the receiving 
State does not have a role in revisiting for a third time the question of service.  This was 
what happened in Apostolides v. Orams  where the CJEU said (at para. 80):  
 
‘… the recognition or enforcement of a default judgment cannot be refused under 
Article 34(2) of Regulation No. 44/2001 where the defendant was able to commence 
proceedings to challenge the default judgment and those proceedings enabled him to 
argue that he had not been served with the document which instituted the proceedings 
or with the equivalent document in sufficient time and in such a way as to enable him 
to arrange for his defence.’    
   
50. While this may require qualification where the conditions set out in Article 19(4) of  the 
Service Regulation are in fact met (see Lebek v. Domino  at para. 47), this only arises if the 
defendant establishes that his lack of awareness of the proceedings was not due to any fault 
on his part and, as I have observed, he has not on the facts established this here.  
   
51. In his Petition to the SCC the appellant impleaded generally his rights of defence and of fair 
trial ( at para. 8), urging that court that (a) the appellant never authorised any person to 
receive court communications on his b ehalf at Ballynatray House, (b) that he was not present 
in the jurisdiction when the documents were delivered there on November 19 2005, 19 
August 2016 and 26 June 2018 and (c) that these documents were never received by the 
appellant . Issues were also rai sed to the effect that the first delivery did not constitute service 
- 28 - 
 
for the purposes of the Service Regulation , and around the detail of service of the other 
documents.  
   
52. The SCC in its ruling records the circumstances under which Article 303(1) item 5 o f the 
Bulgarian Civil Code enables the SCC to set aside what the court refers to as ‘ enforced 
vicious judgments’.   These include where the party has , as a consequence of violation of the 
court rules ,  been deprived of an opportunity to take part in a trial  and where the party has 
not participated either personally or through an attorney due to some ‘ peculiar unexpected 
circumstances’.  The court in its ruling identified the appellant’s complaint as being that he 
had not participated personally and was not represented because he had not been called to 
court in compliance with the requirements of the Service Regulation, stressing that under 
Bulgarian law it was a  matter for the person seeking set aside to establish the facts on the 
basis of which their requests were grounded.  It proceed ed to find:  
 
  
(i) It had been established that the three services of court papers had been delivered to 
an authorised person.  
   
(ii) The set aside application did not state any allegations about procedural violations 
of Irish law by the service being effected through the court, nor did it give any 
evidence in that regard.  
 
(iii) The allegation that the service by registered mail with a return sl ip under the 
provisions of Article 14 of the Service Regulation as not having been effected to a 
person who had turned his or her legal age and was at the address in the capacity of 
his family member or of someone hired by him for work were ‘ pointless ’, as they 
were not supported by evidence.  
- 29 - 
 
 
(iv) Therefore, there was no violation of the relevant procedural rules ensuring the 
appellant ’s participation in the trial.  
 
 
53. I would note that the decision of the SCC appears to be addressed only to an allegation of 
procedural violation, not the proposition that having regard to the fact that the appellant was 
not aware of the proceedings his rights of defence were, for that reason alone  and 
irrespective of whether there had been non -compliance with the requirements as to service , 
impaired.  However, this seems to reflect the application made to it  (and indeed the grounds 
relied upon as recorded in correspondence from the appellant’s Bulgarian lawyers of May 3 
2018) .  While not the subject of any evidence  or submission before this court, the final clause 
of the relevant provision  relied upon by the Bulgarian Court as recited by it in its ruling 
(‘peculiar unexpected circumstances’ ) would appear to have enabled such a contention to 
be advanced and, if it did not, presumably that court or another in that jurisdiction would 
have had the power conferred by Article 19(4) of the Service Regulation to which I have 
referred earlier. That being so,  and in the absence of any contention to the effect that there 
was an  exceptional circumstance that rendered the set aside procedure in Bulgaria 
inadequate for the purpose provided for in Article 45(1)(b), it would follow from the 
considerations I have outlined above that the High C ourt – for this reason – ought to have 
refused the appellant’s application . 
 
Public policy    
 
54.  The originating notice of motion issued by the appellant on 12 July 2018 invokes only 
Article 45(1)(b) of the Recast Regulation.  There was no reference to any argument as to 
‘public policy’ in the ap pellant’s affidavits.  Insofar as I can ascertain, no attempt was ever 
- 30 - 
 
made to amend the application.  However, no objection appears to have been taken to the 
issue being raised . 
   
55. Article 45(1) (a) of the Regulation  enables non -recognition of a judgment:  
 
‘if such recognition is manifestly contrary to public policy (ordre public) in the Member 
State addressed’  
   
56. The argument insofar as based upon this provision travels back to the circumstances giving 
rise to the Isle of Man proceedings and related ICC ar bitration.  As I have summarised them 
earlier t he appellant, it is said, was the victim of a fraud carried out by the respondent as a 
result of which the appellant , as the ultimate owner of Gort, is at a loss of (as most recently 
asserted) €26M.  The loan contract the subject of the Bulgarian proceedings was, it is 
contended, part of a series of transactions all of which arise out  of and were enabled by the 
larger  fraud and deceit  I have earlier described .  Therefore, the appellant says, the judgment 
enforc ing that loan contract should not be recognised here as to do so is to further the fraud 
and in so doing to act contrary to Irish public policy.  
   
57. It follows from the general description of the Recast Regulation I have outlined earlier that 
the public policy ground identified in Article 45(1)(a) m ust be interpreted strictly insofar as 
it is an obstacle to the attainment of one of the fundamental objectives of the Regulation , 
and m ay therefore be invoked only in exceptional cases  ( Krombach v. Bam berski at para. 
21).  The addition of the adverb ‘ manifestly’  to the language originally appearing in the 
equivalent provision in the Brussels Convention gives concrete expression to the 
expectation of a manifest conflict between the recognition or enforce ment of the judgment 
- 31 - 
 
and public policy, and was intended to underscore the exceptional nature of the public policy 
ground with a view to improving the free movement of judgments ( Case C -681/13 Diag eo 
Brands BV v. Simiramida -04 ECLI:EU:C:2015:137  at para. 4 2 per Advocate General 
Szpunar, cited in Sporting Index Ltd. v. O’Shea  [2015] IEHC 407  at para. 12).  It is thus 
engaged only by a ‘ manifest breach of a rule of law regarded as essential in the legal order 
of the State in which enforcement is sought or of a right recognised as fundamental within 
that legal order’  (Krombach v. Bamberski  at para. 37, Fairfield Sentry Ltd. (In Liquidation) 
v. Citco Bank Nederland NV [2012] IEHC 81 at para. 106).  The courts of the State in which 
enforcement is sought may no t refuse to recognise or enforce that judgment on this basis 
solely that there is a discrepancy between the legal rule applied by the court  of the State o f 
origin and that which would have been applied by the court of the State in which 
enforcement is sou ght had it been seised of the dispute ( Apostolides v. Orams at para. 58).    
 
58. These principles, and the extent to which they require that a party resist ing recognition and 
enforcement have sought to raise the question of fraud in the courts of the state fro m which 
the judgment issued, are addressed in the decision of the English High Court in Interdesco 
SA v. Nullfire Ltd [1992] 1 Lloyd’s Rep. 180, upon which the appellant relies.   There, the 
allegation was that one party had presented a deliberately false averment in a document in 
a nature of a pleading to a French Court.  Specifically, it had asserted in the proceedings in 
question that a product manufactured by it and distributed pursuant to the agreement on foot 
of which the liability imposed by the fore ign judgment arose was not defective, even though 
it had been party to testing which demonstrated the opposite.  The obligation of recognition 
and enforcement of the judgment was governed by the Brussels Convention Article 27 of 
which provided for a public  policy exception framed in terms similar to Article 45(1)(b) of 
the Regulation (although, as I have noted not including the ad verb ‘manifestly’ ).  After entry 
- 32 - 
 
of the judgment, the defendant had sought to have the judgment set aside by the Cour 
d’Appel on the basis inter alia  that it had been procured by fraud.  
 
59. Phillips J. declined to reverse a decision of the Master ordering registration of the judgment .  
Four issues of principle addressed in the decision are relevant here.  First, the court 
concluded that an allegation of fraud could  engage the public policy exception in the 
Convention.  This is clearly correct, and indeed was widely understood at the time  of 
adoption of the Brussels Convention (see para. 192 of the Schlosser Report).  Second, 
however, he found that where the foreign court had ruled on the matters the defendant sought 
to raise when resisting enforcement, Articles 29 and 34 of the Convention  (reflecting the 
provisions in respect of non -recognition or enforcement that prohibited review of the 
substance of a judgement now consolidated in Article 52 of the Recast Regulation) 
precluded the receiving court from reviewing the conclusion of the issu ing court.  As Phillips 
J. explained ( at p. 187):  
 
‘… where the foreign Court has, in its judgment, ruled on precisely the matters that a 
defendant seeks to raise when challenging the judgment on the ground of fraud, the 
Convention precludes the Court from  reviewing the conclusion of the foreign Court. ’ 
 
60.  Third, where there was a remedy for an alleged fraud in obtaining the judgment in the 
jurisdiction in which it issued, the receiving court should ordinarily leave the defendant to 
pursue his remedy there.  Fourth, he found that an English court should not normally 
entertain a challenge to a judgment to which the Convention applied where it would not 
permit a challenge to an English judgment . 
 
61. Phillips J. explained (at p . 188):  
 
- 33 - 
 
‘… where registration of a Convention judgment is challenged on the ground that the 
foreign Court has been fraudulently deceived, the English Court should first consider 
whether a remedy lies in such a case in the foreign jurisdiction in question.  If so, it will 
normally be appropriate to leave the defendant to pursue his remedy in that 
jurisdiction.’  
   
62. Much of what is said in Interdesco v. Nullfire also applies in this jurisdiction. Irish public 
policy leans against fraud to the extent that a domestic judgment th at has been procured by 
fraud may be set aside ( Tassan Din v. Banco Ambrossiano  SPA [1991] 1 IR 569 at p. 582 
per Murphy J.).  The successful invocation of this jurisdiction requires proof of deliberate 
and purposeful dishonesty in the sense of a ‘ knowing and intentional deceit of the court’  
(Kenny v. Trinity College Dublin [2008] IESC 18 at para.  54 per Fennelly J.).  That fraud 
must be such as to have affected the judgment in a fundamental way ( id. at para. 55).   The 
jurisdiction will generally ar ise in circumstances in which it is established that a party 
deliberately adduced false evidence before the court, the falsity of the evidence being 
causative of the outcome.   What is critical, however, is that the cause of action to set aside 
a judgment o btained by fraud is independent of the cause of action asserted in the earlier 
proceedings:  ‘[i]t relates to the conduct of the earlier proceedings, and not to the 
underlying dispute’ (Takhar v. Gracefield Developments Ltd. and ors [2019] UKSC 13 at 
para.  61 per Lord Sumption).  
 
63. At common law, the Irish courts would also refuse to enforce a foreign judgment obtained 
by fraud ( Bussoleno v. Kelly [2011] IEHC 220 , [2012] 1 ILRM 81 ), and – controversially – 
this may have been so even where the fraud could have been, or indeed was, agitated before 
the foreign court ( Abouloff v. Oppenheimer  & Company  (1882) 10 QBD 295).  It must 
follow that in this jurisdiction (as in the United Kingdom) the ‘public policy’ ground for the 
- 34 - 
 
refusal of the recognition or enforce ment of a judgment now expressed in Article 45(1)(a) 
of the Recast Regulation will also be engaged  - at least in theory - where it is established 
that a judgment obtained in a member state to which the recast Regulation applies was 
obtained in this way.   However – as acknowledged by Phillips J. in Interdesco v. Nullfire  -  
the conditions under which recognition of such a jud gment will be r efused on this basis 
should be no different from those applicable to a domestic 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 affected the impugned decision in a fun damental way ( Desmond v. Moriarty  
[2018] IESC 34 at para. 84 per McKechnie J.).   
 
 
64. This is not a case in which the appellant can plausibly say that the judgment in issue was 
procured by fraud  in the sense referred to by Phillips J.  in Interdesco or in the domestic case 
law.   While he asserts that the fraud and deceit carried out by the respondent in inducing 
him to enter into certain commercial transactions ‘ shows that the judgment herein wer e [sic.] 
obtained by an underlying fraud’ , he points to no evidence tendered by the respondent which 
was false – in fact he appears to admit the fact of the loan agreement  and the making of an 
advance thereunder , and suggests no basis on which the formal legal conditions for the 
recovery of that debt as provided for under the law of Bulgaria were not met.  Instead, his 
point is that the loan should not have been enforced because it was connected with a fraud , 
that (in a sense which is not particularly clear from the papers) the loan contract was itself 
procured by fraudulent misrepresentation  and that the evidence of this connection 
(comprising the material before , and conclusions of, the Manx High Court) is suffici ently 
strong to justify the court in refusing to recognise or to enforce a judgment in circumstances 
- 35 - 
 
in which  but for the defendant’s allegedly fraudulent scheme, the opportunity for the 
contract now sought to be enforced would not have arisen.  
 
65. This is el aborated upon at different points in his evidence and submissions .  Specifically, he 
says, the respondent arranged for a contract between a firm set up by him to purchase all 
advertising spaces in the Burgas shopping centre for resale to advertisers at a p rofit.  Then, 
he alleges, the respondent fraudulently induced the appellant to consent to this contract by 
indicating that he would provide a series of loans to the appellant which would then be 
repaid through a share of the advertising profits generated b y the company that had taken 
this space.  Effectively, the appellant says, the respondent agreed to advance the value of 
the appellant’s share of these anticipated profits via the loans, and their repayment in this 
manner.  The appellant’s French lawyer in an affidavit sworn for the purposes of the 
application heard by Barr J. says: ‘ but for the fraudulent conduct of Mr. McDonald to induce 
Henry Gwyn -Jones from entering into a series of contracts and actions to acquire the shares 
of Burgas Plaza AD  such subsequent contracts including the advertising contract and these 
related loan contracts would not have been entered into by Henry Gwyn Jones’.  That 
contract it is said, was thus only entered into because of the fraudulent misrepresentations 
of the respondent, and those representations thus induced the appellant to enter into the 
contract the subject matter of the Bulgarian judgment.  So, the Irish courts should – the 
appellant says – refuse enforcement or recognition of the foreign judgment on publi c policy 
grounds, Irish public policy leaning strongly against ‘ fraud’ . 
   
66. None of t his, in my view, presents a ground coming within Article 45(1)(a) .  No authority 
in this jurisdiction or, for that matter, anywhere else has been identified in which a fore ign 
judgment has been aside on any analogous basis: the existing case law both at common law 
- 36 - 
 
and under the Recast Regulation and its predecessors have all involved foreign judgments 
procured by fraud in the sense I have explained.   This is, it seems to me,  unsurprising: the 
claim that a default judgment arising in a context in which the defendant could have raised 
a defence of fraudulent misrepresentation or deceit cannot be enforced because that defence 
is one of ‘ fraud’ is quite different from the proposition that the foreign court was deceived 
into granting the judgment.   The first is an aspect of the merits of the claim, the second 
concerns a contamination of the process by which that claim was determined.  
 
67. The conditions under which delictual cau ses of action for deceit or contractual claims for 
misrepresentation may arise, or according to which enforcement of an agreement will be 
vitiated for fraud or for that matter in which a claim on foot of a debt may be set off against 
a claim for fraudulent  misrepresentation are matters to be determined  in any given case by 
the court properly having jurisdiction over the claim and in accordance with the applicable 
law governing the  relevant legal  relation s between the parties.   In this case there has been 
no adjudication in the court of origin of whether, on the merits, the deceit alleged by the 
appellant does disclose a credible defence to the respondent’s claim for judgment .  However,  
it must follow – were the appellant entitled to rely in this appli cation upon the ‘ fraud’ of 
which he complains as a public policy preclusion to recognition and enforcement  – that he 
would also be able to invoke the same public policy had the Bulgarian court adjudicated on 
the claim and determined the issue against him. This, indeed, is the basis on which the 
appellant resists enforcement of the judgment in the first Bulgarian proceedings.    
   
68. However, t o acquiesce in that argument  would involve the Irish courts in ‘ correcting’ the 
judgment of the Bulgarian court in prec isely the manner prohibited by Article 52.  It would, 
in effect, involve the Irish court in determining that irrespective of the provisions of 
- 37 - 
 
Bulgarian law, if that law did not provide for and the courts of that jurisdiction did not apply 
a defence based upon deceit to the claim for enforcement of the loan agreement  in 
accordance with the conditions that would be applied to such a claim by Irish law , Irish 
public policy prevents the recognition of any consequent judgment.   On its face, Article 52 
renders a ny such claim inadmissible.  
   
69. The decision in Sporting Index Ltd. v. O’Shea , relied upon by the appellant, shows that there 
will be cases in which the dividing line between the review of the substance of a foreign 
judgment and application of a public policy preclusion on enforcement of it may be finely 
drawn.  There, the High Court refused to enforce a judgment obtained in England because 
the underlying debt arose from a gambling transaction. Irish law (s. 36(2) of the Gaming 
and Lotteries Act 1956) prevents enforcement of any betting contracts.  English law (which 
appears to have governed the transaction) seemingly did not.  Mac  Eochaidh J. (correctly) 
reject ed a contention based upon the judgment of Dunne J. in EMO Oil v. Mulligan  [2011] 
IEHC 552 to the effect that the public policy exception in the Brussels I Regulation was 
limited to cases involving a breach of fundamental rights .  From there, he refused to enforce 
the judgment.  The prohibition on the enforcement of gambling debts was a rule of law 
regarded as essential in the legal order of the State and, he held, refusing to enforce the 
judgment as such involved not a review of the substance of the foreign court order ( also 
prohibited by that Regulation – Articles 26 and 45(2)), but an inquiry as to what the 
substance of the proceedings was, and the determination (having regard to that substance) 
of whether the underlying liabil ity was captured by the statutory prohibition . 
   
70. Sporting Index Ltd. v. O’Shea assumes  that Member States are entitled to identify particular 
categories of clearly defined transaction s which are so objectionable to the ir own policy that 
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they will not merely refuse to enforce them within their domestic law  but may also refuse 
to permit their enforcement if concluded pursuant to the law of another Member State and 
found valid by the courts of that other State in accordance with that law.  The comment aries  
suggest other similar examples – arrangements for the commission of a criminal offence or 
intended to circumvent a trade embargo imposed under the law of the Member State 
addressed or acts facilitating the payment of a bribe  (see Dickinson and Lein ‘The Brussels 
I Regulation Recast ’ Oxford , 2015  at para. 13.296) .  In all of these cases the public policy 
is specific and capable of clear and narrow expression.  
 
71. The diff iculty facing the appellant in harnessing these examples to this case  lies in  the 
generality with which the ground upon which he relies is expresse d, and the certainty with 
which one can conclude that there is actually any clear public policy engaged by the facts . 
Thus, th roughout, the appellant asserts a public policy mandate based upon ‘ fraud’ .  Irish 
law, of course, implements rules prohibiting fraud and penalising those who engage in it via 
a variety of legal principles  operative in different contexts .  These operate to  criminalise 
fraud  in particular circumstances , to render fraudulent conduct  a tortious wrong in particular 
circumstances, and to allow the unravelling of transactions contaminated by fraud under 
specific conditions:  ‘fraus omnia corrumpit’ .  The types of conduct, the circumstances in 
which they arise, the conditions under which the relevant rules operate and the consequences 
attached to them vary  depending on the context and the rule properly applied to it .  However, 
I have previously noted the exceptional nature of the power conferred by Article 45(1)(a), 
and it follows from this that its application in any given  case must be clearly defined and 
tailored.  That was the case with the prohibition addressed in Sporting Index .  It is also the 
case where a judgment is obtained by fraud in the sense in which I have defined it earlier.  
 
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72. It is not the case with the rule necessarily contended for by the appellant here.   To succeed 
in this aspect of his claim in these proceedings the appellant must say that whatever the 
principles governing the vitiation of contracts for fraud may be in Bulgarian law (this being 
the la w chosen by the parties to govern their relations), if that law and the consequent order 
of a Bulgarian court enforcing it did not meet the requirements imposed by Irish public 
policy (presumably as embodied in the Irish law of deceit or allied contractual  claims or 
defences), the order could not be enforced .  This would not represent the enforcement of 
Irish public policy as reflected in statute law over a limited and defined category of 
transaction, but the extra -territorial application of Irish law of de ceit and allied contractual 
claims or defences across a broad and indeterminate terrain  irrespective of the law governing 
the relevant arrangements .  It is impossible to see how such a principle can be deduced from 
a general ised claim that ‘ fraud’ is contrary to public policy. Without proper explanation and 
definition, this is simply too vague a criterion to constitute a valid head of public policy for 
the purposes of the provision.   When defined as I have sought to do – the negation of a 
judgment t hat does not conform with the Irish law of deceit or allied contractual claims or 
defences  –   the very formulation shows it to be inconsistent with Article 52.  
 
73. The extent to which this is so leads to a final point which, I think, demonstrates the force o f 
this conclusion.  It would appear that – for whatever reason – the arguments advanced to the 
City Court of Sofia in the first Bulgarian proceedings did not extend to an argument based 
on fraud per se .  Instead, the claim appears to have been that the loa n contracts were linked 
to a lease agreement in Bulgaria between other corporate entities and that having regard to 
performance under those agreements there had been a form of discharge of the debt.  The 
Sofia Court of Appeals determined that there was, as  a matter of Bulgarian law, insufficient 
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connection between the lease agreements and the loans for the latter to be affected by the 
former.  The court said that it:  
 
‘could not establish the relationship between the legal relationships arising under the 
loan contract entered into between the natural persons Richard William McD onald and 
Henry Alexander Brompton Gwyn Jones and the legal relationships arising from the 
lease contract concluded between two commercial companies’  
   
74. The evidential basis relied upon by the appellant in this application may well establish that 
there is a prima facie case of fraudulent representation underlying the original investment, 
but it is conspicuously vague when it comes to how – exactly – the lo an document sued 
upon by the defendant was itself procured by fraud.   In this regard he avers to no relevant 
facts himself  referring instead to the second ICC reference to arbitration which, he says , 
shows ‘ that it was that same deceit, as part of a series  of complex transactions, all 
interrelated, which led the Applicant to enter into the contracts the subject matter of the 
Bulgarian Judgment which the Respondent seeks to enforce.’  Elsewhere in his submission 
he says that the respondent’s deceit induced h im personally to enter into an advertising 
contract with a company owned and controlled by the respondent and that it was one of 
these advertising contracts which forms the basis for the judgment.   All of this seems to 
assume that the making of a fraudulen t misrepresentation in the course of one of a number 
of related transactions vitiates all of them.  There may well be circumstances in which this 
is so, but it is simply not possible on facts as presented here to determine whether – even on 
a prima facie  basis – this is the case  here.  This particular aspect of the appellant’s claim of 
fraud was not addressed in any form in the Manx decision , which forms the centrepiece of 
the appellant’s evidence on this aspect of his application.   On the basis of the evidence alone, 
accordingly, it is difficult to see how the appellant can succeed in this aspect of his a rgument .  
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As one English judge has recently put it, if there is room for serious argument as to whether 
public policy was contrav ened in a given case, it is most improbable that it could be said 
that enforcement was ‘ manifestly’ contrary to public policy ( The London Steamship Mutual 
Insurance Association Ltd. v. The Kingdom of Spain  M/T 'Prestige'  [2021] EWHC 1247 at 
para. 49 per B utcher J.).  
  
The ICC arbitration issue  
 
75. The first ICC arbitration  - initiated in December 2014 - arose from the provisions of a 
Memorandum of Understanding dated 1 December 2007 referred to as the ‘ Gort -
Bridgecorp’ MOU  which provided that any dispute arising from or connected with the Joint 
Venture Agreement would be settled in accordance with the Rules of Arbitration of the ICC, 
the governing law being that of England and Wales.  The request for arbitration filed on 
January 28 2020 asserts that the appellant and respondent are ‘ the true parties to the 
arbitration clauses’ , each implementing their agreement with Gort and inter alia  Balkan 
respectively.  
   
76. That request states as follows:  
 
’34. Mr. McDonald  as executive director of Burgas Plaza … arranged  for a contract 
between a firm set up by Mr. McDonald where he was the director to purchase all 
advertising spaces in the Burgas shopping centre owned by Burgas Plaza AD for resale 
to proper advertisers at a pr ofit. 
 35. Mr. McDonald fraudulently induced Mr. Gwyn Jones to consent to this contract 
by indicating that Mr. McDonald would provide a series of limited personal loans to 
- 42 - 
 
Mr.  Gwyn Jones that would then be repaid through share of advertising profits 
gener ated in the advertising company through this contract with [Burgas Plaza AD] .  
Mr. McDonald effectively agreed to advance the value of Mr. Gwyn Jones share of 
those anticipated profits and for the loans to be repaid in this manner.  
 
 36. Mr. McDonald howev er failed to respect the terms of that agreement and 
instead  has failed to pay Mr. Gwyn Jones the value of the advertising profits as agreed.  
 
 37. Mr. McDonald has sought to abusively commence legal proceedings in 
Bulgaria claiming those loans were not repaid by Mr. Gwyn Jones and is currently 
seeking to enforce in Ireland court judgments obtained by Mr. McDonald against Mr. 
Gwyn Jones last year  …. 
   
 41. In addition by Mr. MacD onald continuing to financially benefit from that 
undisclosed advertising co ntract with Burgas Plaza AD that he sought to dissipate 
assets that should have been frozen and available to [Gort].  In effect, Mr. MacDonald 
has financially benefitted by not paying required sums pursuant to the advertising 
company income and is abusivel y attempting to avoid payment of the loans by Mr. 
Gwyn -Jones through the agreed offset and further abusing Mr. Gwyn -Jones by seeking 
to enforce the underlying loan agreements that advanced advertising income tue to Mr. 
Gwyn Jones’.  
 
77. The request proceeds to  seek a determination preventing the enforcement of ‘ any claims 
against claimants in any jurisdiction, including Ireland’ and seeks an order requiring the 
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withdrawal by the respondent of ‘ all applications for enforcement of any judgments in any 
jurisdiction against [the appellant] related directly or indirectly to this dispute’.  Thus, the 
appellant says, this court should not enforce the Bulgarian judgment in circumstances in 
which the iss ue of whether it was obtained as the result of a fraud is before the ICC 
arbitration.  
   
78. The precise legal basis for this claim is variously expressed in the appellant’s submissions 
as arising from ‘ the presence of the ICC Arbitration’ , ‘the potential to d o serious injustice 
to the Appellant, if the Respondent were allowed to enforce this judgment in Ireland’  and 
‘the public policy ground in Article 45(1) and Article 46.’  In that regard, the appellant 
stresses that the respondent’s financial position is we aker than the appellant’s and expresses 
concern that if he prevails in the arbitration and the judgment has been enforced, he may not 
be in a position to obtain repayment of those monies from the respondent.   No authority of 
any kind is referred to by the appellant – or for that matter by the respondent – as to how 
under the Recast Regulation the court should respond to a default judgment, and which it is 
claimed was precluded by an arbitration agreement  and, in particular whether such a claim 
goes to the jurisdiction of the court o f origin (Article 45(3)).   In fact, the issue appears to 
have been first raised in an affidavit of the appellant’s solicitor delivered on the eve of the 
hearing in the High Cou rt. 
 
79. While noting that there is some authority questioning whether a judgment issued contrary 
to a contractual agreement to arbitrate engages the public policy exception (see National 
Navigation Co v. Endesa Generacion SA (The Wadi Sur) [2009] EWCA Civ. 13 97, [2010] 
1 Lloyds Rep. 193) having regard to the evidence adduced and submissions made in this 
application I will restrict myself to the following.  The judgment the subject of this 
application arises from a loan agreement which contains no arbitration c lause of any kind, 
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instead investing the Bulgarian courts with exclusive jurisdiction over the suit.   Clauses 6 
and 7 provide:  
 
‘Any disputes for the performance of this Agreement, including all disputes relating to 
or arising out of its interpretation, v alidity, default or termination will be resolved by 
written agreement between the parties, in case of failing for reaching an agreement, 
the dispute shall be referred to the competent Bulgarian court.  
 
All matters not covered by the provisions of this Loan  contract shall be governed by 
applicable provisions of the civil and commercial law of the Republic of Bulgaria.’    
 
80. While the arbitration to which the appellant refers in his submissions did not commence 
until January 2020, it is difficult to see how he can ground any objection to the enforcement 
of the judgment without establishing that the claim itself is captured by a binding arbitration 
agreement.  Irrespective of whether such a contention falls within the concept of public 
policy in Article 45(1)(a), I cannot on the evidence before me so conclude. The only 
evidence before the court germane to that question is the lo an agreement itself.  In the 
absence of some reasoned explanation as to how those provisions are superseded by the 
provisions on foot of which the ICC arbitration is to take place (and there is none) this court 
must give effect to the agreements before it.  
   
81. The suggestion is further made in the notice of appeal that enforcement of the judgment 
should be stayed pending the outcome of the ICC arbitration.  I can find no warrant for an 
order to that effect in the Recast Regulation , and none has been identifi ed in the appellant’s 
submissions .  If the appellant wishes to seek a remedy in respect of the proceeds of any 
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enforcement action on foot of the Bulgarian judgment , he will have to seek it from the 
relevant arbitral tribunal.  
 
Conclusion    
 
82. In these circumstances the appellant must fail in his contention that Meenan J. erred in the 
judgment delivered an d order made by him.  I would affirm both.  The appellant having thus 
been entirely unsuccessful in this appeal, the costs of the respondent should fol low.  This is 
my preliminary view.  If the appellant wishes to contest it he should advise the  Court of 
Appeal office within seven days of the date of this judgment, whereupon the court will fix 
a further hearing on the question of costs.   
 
83. Costello J. an d Whelan J. agree with this judgment and the order I propose.