The Gazette 1986

GAZETTE

JANUARY/FEBRUARY 1986

The Brussels Convention on Jurisdiction

and the Enforcement of Judgements

Part II

Gerald Mo l oney, Solicitor

and

George Kremlis*

•Member of the Legal Service of the Commission of the European

Communities. The writer expresses his own views.

The first part of this Article dealt with the first half of

the Convention which sets out the new harmonised rules

on jurisdiction. This second and concluding part will

deal with the provisions of the Convention relating to

the recognition and enforcement of judgements and

with the Protocol dealing with the interpretation by the

Court of Justice of the Convention.

Recognition and Enforcement — General

To get an idea of the intention of the drafters of the

provisions of the Convention relating to recognition and

enforcement it is worth looking at the Jenard Report»')

It is stated that because of the safeguards guaranteed by

the Convention to defendants in the original proceed-

ings, the provisions relating to recognition and enforce-

ment are very liberal. It continues to state that Title III,

which sets out these provisions, "seeks to facilitate as

far as possible the free movement of judgements and

should be interpreted in this spirit. The liberal approach

is evidenced in Title III, firstly, by a reduction in the

number of grounds which can operate to prevent the

recognition and enforcement of judgements and,

secondly, by the simplification of the enforcement pro-

cedures which will be common to the (Contracting

States)".

At present, it is in general only foreign judgements for

fixed sums of money that can be enforced in Ireland,

and under strict conditions. A foreign judgement has to

Res Judicata

and the Irish Courts have a very broad

power to refuse to enforce a foreign judgement where it

considers that the foreign court should not have assumed

jurisdiction in the matter in the first place.

The Convention will radically change this position.

With certain specified exceptions, foreign judgements

coming within the scope of the Convention will be rec-

ognisable and enforceable in Ireland. This will include

judgements of certain tribunals and even certain orders

of a Civil nature made by Criminal Courts. Judgements

will no longer have to be

Res Judicata

and therefore

provisional orders will be enforceable. And, further, the

grounds on which the Irish courts will be able to refuse

recognition and enforcement will be considerably

reduced. Article 25 also specifically includes orders

determining a party's costs.

Recognition

Recognition is governed by Articles 26 to 30. The

effect of Article 26 is that judgements are to be recog-

nised automatically, without the necessity of any special

procedures. The Jenard Reports states that under

Article 26 there is a presumption in favour of recognition

which can be rebutted only if one of the grounds specified

in Article 27 is present. Also, the two novel develop-

ments pointed out by the Jenard Report are that judge-

ments no longer have to be

Res Judicata

and that, in

general, the jurisdiction of the original court does not

have to be investigated.

Exceptions to Recognition

The first exception in Article 27 is that a judgement

need not be recognised where recognition would be

contrary to the public policy of the State in which recog-

nition is sought. The exception was intended, however,

to be used only in exceptional circumstances. In Ireland

an interpretative problem may arise where it is alleged

that the original judgement was obtained by fraud.

Fraud is regarded in the Irish courts as a special ground,

separate from public policy. The problem was, however,

envisaged. <

>It was suggested that the obtaining of a

judgement by fraud can be regarded as an offence

against public policy. It was also suggested that "the

court in the State addressed must always therefore ask

itself whether a breach of its public policy still exists in

view of the fact that proceedings for redress can be or

could have been lodged in the court of the State of

origin against the judgement allegedly obtained by

fraud". How an Irish court will deal with this problem

when it arises will be interesting to see and may, of

course, be subject to the review of the Court of Justice.

The second exception in Article 27 is where the

original judgement was granted in default of appear-

ance. Such a judgement will not be recognised where the

defendant was not served with the document which

instituted the proceedings or with an equivalent docu-

ment in sufficient time to enable him to arrange for his

Defence. There would not appear to be any objective

standard of what constitutes "sufficient time" and it is

stated <

> that it is for the court in which recognition is

sought to decide whether the defendant was given

sufficient time to arrange his Defence. The case of

Klomps-v-Michei

» decided,

inter alia,

that Article 27

does not require an investigation, except in the most

exceptional circumstances, as to whether the document

which instituted the proceedings was actually brought to

the notice of the defendant. The court concerned could

therefore confine its examination to the period of time

from the date on which service was effected. «>

The third exception in Article 27 applies where the

judgement sought to be enforced is irreconcilable with a