The Gazette 1986

GAZETTE

JANUARY/FEBRUARY 1986

The Brussels Convention on Jurisdiction and the Enforcement of Judgements Part II by Gerald Mo l oney, Solicitor and George Kremlis*

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. < 3 >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 < 4 > 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 < 5 » 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

•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 be 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-

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