TSN Kunststoffrecycling GmbH v Jurgens

For article 27(2) of the Brussels Convention, the relevant period for deciding whether a defendant had sufficient time to arrange a defence normally runs from due service until the default judgment is issued. It is not confined to the period fixed for entering an appearance where a valid appearance could still prevent judgment. Sufficiency of time is a factual question assessed in all the circumstances. The requirements of due service and sufficient time are separate safeguards. The protection of a defendant’s fair hearing must be balanced against the Convention’s policy of facilitating recognition and enforcement, so the exception should not be extended beyond what is reasonably necessary.

TSN obtained a German default judgment for DM 520,000 against Jurgens after proceedings were served at his English home. The German court allowed two weeks for entry of an appearance, but issued judgment about five weeks after service. TSN sought registration and enforcement in England under the Brussels Convention.

Jack J held that service was duly effected and that the relevant period was the five weeks between service and judgment. Jurgens appealed, arguing that only the two-week appearance period should be considered. The central issue was whether article 27(2) required sufficiency of time to be assessed up to the deadline for entering an appearance or up to the issue of the default judgment.

The Court of Appeal unanimously dismissed the appeal. Lord Justice Rix gave the substantive judgment, with Lord Justice Dyson and Lord Justice Robert Walker agreeing.

1. Permission to appeal covered the issue whether the period for assessing sufficiency of time under article 27(2) was two weeks or five weeks. The fact that the point had not been argued before Jack J did not remove it from the appeal. The exceptional-circumstances ground had not been permitted.
2. The jurisprudence of the European Court of Justice, including Klomps v Michel [1981] ECR 1593 and Minalmet GmbH v Brandeis Ltd [1992] ECR I-5661, supported examining the period available to prevent a default judgment. The relevant period therefore normally runs from due service until the judgment is issued.
3. The sufficient-time requirement is factual and must be assessed in all the circumstances. It is distinct from the requirement of due form, whose assessment is directed to the time of service. The court used Isabelle Lancray SA v Peters und Sickert KG [1990] ECR I-2725 and Minalmet to explain that strict reasoning on due form does not necessarily determine the sufficient-time question.
4. If domestic procedure made an appearance ineffective after the stated deadline, the relevant period would end when that deadline expired. Here, however, a valid appearance before the signed default judgment reached the court office would have prevented judgment under paragraph 331 of the Zivilprozeßordnung. The five-week period was therefore relevant.
5. Jurgens accepted that five weeks was sufficient. It was consequently unnecessary to decide the sufficiency of two weeks, the effect of his absence from home, or whether the matter should be remitted. No reference to the European Court of Justice was required.

The appeal was dismissed with costs here and below. There was no order for costs on the cross-appeal. The stay was lifted and leave to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): [2002] EWCA Civ 11. Unanimously dismissed the appeal, lifted the stay and refused leave to appeal to the House of Lords.
2. Queen’s Bench Division: Jack J held that service was duly effected, that there were no exceptional circumstances, and that the five-week period before judgment was sufficient.