114 / 482
GAZETTE
APRIL 1989
Article 29 of the Convention
provides that under no circum-
stances may a foreign judgment be
re-examined as to its substance.
The proper procedure for a party
who alleges that a foreign judgment,
sought to be enforced in the State
under the Convention is wrong in
fact or in law is to appeal against
the judgment in the Contracting
State where the judgment was
granted. An Irish Court cannot act
as an appellate court in relation to
a matter which has already been
decided by a court of competent
jurisdiction in another Contracting
State.
Under Article 30, if an "ordinary
appeal" has been lodged against
the judgment in the Contracting
State of origin, the judgment-
recognising court may stay the
proceedings. In case No. 43/77
Industrial Diamond Supplies -v-
Riva
(1977) E.C.R. 2175, it was held
that an appeal should be regarded
as "ordinary" if it could result in the
annulment or amendment of the
judgment and the time within
which it must be lodged must run
from the date of the judgment.
GROUNDS FOR
NON-RECOGNITION OF
A FOREIGN JUDGMENT
A judgment will not be recognised
or enforced if it is outside the scope
of the Convention. However a
judgment will not fall outside the
scope of the Convention merely
because one of the matters
excluded by Article 1 was con-
sidered by the judgment-granting
court as an incidental issue. There
are also certain specific grounds on
which a court may refuse to recog-
nise or enforce a judgment of a
court in another Contracting State.
These are set out in Articles 27 and
28 of the Convention. The more
important of these grounds are:- 1.
public policy (Article 27(i)); 2. that
it would be contrary to natural
justice (Article 27(2)) and 3.
Res
Judicata
(Article 27(3)). The public
policy exception allows some
discretion in relation to matters
which may be contrary to public
policy in certain Contracting States
but not in others. Such problems
would only arise in exceptional cases.
Article 27(2) allows non-
recognition in cases where the
judgment-granting court did not
observe the rules of natural justice,
in that the judgement was given in
default of appearance and it can be
shown that the defendant was not
duly served with the document
which instituted the proceedings in
sufficient time prior to the marking
of judgment to enable him to
arrange for his defence.
Article 27(3) provides that a
judgment will not be recognised if
it is irreconcilable with a judgment
given in a dispute between the
same parties in the Contracting
State in which recognition is
sought. This is the case irrespective
of which judgment was given first.
Article 29 does not allow a
foreign judgment to be re-examined
as to its substance. If a defendant
alleges fraud in proceedings the
recognising court may grant him a
stay on the enforcement proceedings
to enable him to apply in the
judgment-granting State to have
judgment set aside. It may be also
that enforcement of a judgment
obtained by fraud could be refused
on the grounds of public policy.
PROVISIONAL/PROTECTIVE
MEASURES
The Convention provides a very
useful device which could become
important in relation to debt col-
lection. Article 24 of the Convention
confirms the usual power of the
Court to grant provisional or
protective measures such as a
Mareva-type or other form of
injunction, but it also extends this
power by allowing an application
for such provisional or protective
measures to be made to the courts
of one Contracting State in cases
where the courts of another
Contractng State are seised of the
main action. The court could thus
make an order freezing the assets
of the defendant in the former
State pending the outcome of the
proceedings in the latter. If the
plaintiff succeeded in his action,
there would then be funds available
to meet the judgment debt when
enforcement proceedings are
brought in the the former State.
Section 11(1) of the Act gives the
High Court power to grant "provis-
ional, including protective, measures
of any kind that the Court has
power to grant in proceedings that
apart from this Act, are within its
jurisdiction. "An application for such
provisional or protective measures
should be made ex parte to the
High Court grounded on an affidavit
(Order 42(a), Rules 1 and 2).
ENFORCEMENT OF IRISH
JUDGMENTS IN OTHER
CONTRACTING STATES
Section 12 of the Act requires the
Courts in the State to provide to an
interested party an authenticated
copy of a judgment together with
a certificate signed by the registrar
or clerk of the court setting out the
relevant particulars of the proceed-
ings in question. Order 42(a), Rules
18 and 19 set out the procedure to
be followed in relation to judgments
of the High Court and Supreme
Court which an interested party is
seeking to have recognised or
enforced in another Contracting
State. In any case where an
interested party is seeking to
enforce a judgment of the High
Court or Supreme Court in another
Contracting State he should obtain
an authenticated copy of the
judgment or order from the
Registrar of the High Court or
Supreme Court (as the case may
be) (Rule 18), together with a
certificate pursuant to Rule 19
setting out the particulars of the
proceedings required by that rule.
The form of certificate is set out in
Form No. 1 of Appendix F, Part 111
of the amended Rules of the
Superior Courts. The authenticated
copy order together with the
certificate should then be forwarded
to a firm of lawyers in the Contract-
ing State in which judgment is
sought to be enforced, so that it
may be enforced in accordance
with the procedures laid down in
that State.
CONCLUSION
The ratification by Ireland of the
Convention means that it now
operates between nine Member
States of the Euopean Community
— the original six (Belgium, France,
Germany, Italy, Luxembourg and
the Netherlands) and the three
States which joined the Com-
munity in 1973 (Denmark, Ireland
and the United Kingdom). Greece
signed the 1982 Accession Con-
vention and deposited its instru-
ment of ratification with the
Secretary-General of the Council of
the European Communities in
January 1989. The Convention will
therefore enter into force for
Greece on the 1st day of April,
1989 in accordance with Article 15
of the Fourth Schedule to the
Convention. Negotiations for
accession are proceeding with the
latest two Member States to join
the Community (Spain and Portugal).
EILEEN McAULEY
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