Bell Electric Limited v Aweco Appliance Systems GmbH & Co KG

In exercising its discretion under CPR 52.9, the court may refuse permission to appeal where the applicant is in deliberate breach of the order under challenge and relies on an assertion made in purported justification of that breach. The decision need not depend on an assumption that enforcement would be more difficult in another Community state. The court added that the relevant regulation is intended to assist a successful claimant’s enforcement, rather than enable obstruction by a recalcitrant defendant.

Bell Electric obtained an order from Mr Justice Elias in the Queen’s Bench Division. Aweco, the defendant, was alleged to be in deliberate breach and sought permission to appeal. It relied on an asserted difference between enforcement in Germany and enforcement in the United Kingdom.

The Court of Appeal, comprising Lord Justice Potter and Lord Justice Carnwath, considered the application under CPR 52.9. The central issue was whether permission should be refused in the circumstances, and whether the court’s decision was constrained by authorities concerning enforcement within the European Community.

1. The application for permission to appeal was refused. The court’s decision was reached under the discretion conferred by CPR 52.9.
2. The court did not proceed on the assumption that a party seeking to enforce its judgment in Germany faced greater obstacles than in the United Kingdom. The decisive consideration was that Aweco was in deliberate breach of Mr Justice Elias’s order and had itself made and relied on the enforcement assertion in purported justification of its stance.
3. The court stated that its decision was reached without reference to Mund & Fester v Hatrex Internationaal Transport Case C-398/92, [1994] ECR I-467, or Fitzgerald v Williams [1996] 2 All ER 171. It did not regard its decision as constrained by those authorities.
4. By way of additional observation, the court considered that the purpose of the relevant regulation was to aid enforcement by a successful claimant, rather than to aid obstruction by a recalcitrant defendant resident within the Community.
5. Permission to appeal to the House of Lords was dismissed. A stay of the order pending presentation of a petition to the House of Lords was refused.

• High Court of Justice, Queen’s Bench Division: An order was made by Mr Justice Elias. The citation of that decision was not stated in the judgment.
• Court of Appeal (Civil Division): Permission to appeal was refused under CPR 52.9. An application for permission to appeal to the House of Lords was dismissed, and a stay pending presentation of a petition was refused.