TSN Kunststoffrecycling Gesellschaft v Harry Maria Jurgens

For recognition of a foreign default judgment, the question whether a defendant was served with the document instituting the proceedings under Article 27 of the Judgments Convention may require identification of the original initiating process, rather than a later notification of the default judgment. Where that construction point was not argued below and may have general importance, permission to appeal may properly be limited so that the issue can be fully analysed in its foreign procedural context. A first-instance conclusion on special circumstances should not be disturbed where it was not clearly wrong. An application to adduce fresh evidence requiring adversarial argument should be renewed before the full court.

A German default judgment against Harry Maria Jurgens was registered in the High Court under section 4 of the Civil Jurisdiction and Judgments Act 1982. Master Foster made the registration order, and Jack J heard an appeal from that order. Jack J rejected Mr Jurgens's evidence that he had lacked notice of the German proceedings, but considered that he had sufficient time to arrange his defence after receiving notification of the default judgment.

Mr Jurgens renewed his application for permission to appeal. The central issue was whether, for the purposes of Article 27(2) of the Judgments Convention, the relevant document was the original process or the later notification of the default judgment, and what period consequently had to be considered.

1. Permission and scope. The renewed application was allowed. Permission was limited to the construction of the phrase “the document which instituted the proceedings” in Article 27(2) of the Judgments Convention and the consequential question whether sufficient time had been available to arrange a defence.
2. Relevant period. The court considered that the Convention might require attention to the original claim before the German court, notwithstanding the defendant's later opportunity to act after entry of default judgment. The issue had not been argued before Jack J, but he could not properly determine the matter without reaching a correct construction of the Convention. The point also raised a question of general importance and required analysis of the German procedure.
3. Other proposed ground. Permission was refused on the contention that special circumstances justified an extension of time. Jack J's conclusion on that issue was not clearly wrong, and the Court of Appeal would not interfere.
4. Fresh evidence. The judge had no power, on the application then made, to admit fresh evidence requiring adversarial argument. Mr Jurgens was permitted to renew the application before the full court. The grounds of appeal and skeleton argument were to be reviewed and re-served within 28 days. Costs were to be costs in the appeal.

• High Court, Queen’s Bench Division: Jack J, on 16 February 2001, upheld the registration of the German default judgment and rejected the challenge based on lack of sufficient time.
• Court of Appeal (Civil Division): The renewed application for permission was allowed in limited form. Permission was refused on the special-circumstances ground, and the fresh-evidence application was left for renewal before the full court.