Maronier v Larmer

A court asked to recognise a judgment under the Brussels Convention should apply a strong, but rebuttable, presumption that the procedures of another state party comply with the right to a fair hearing.

Article 27(1) permits refusal on public-policy grounds in an exceptional case where the originating state's safeguards and the Convention have failed to protect a defendant from a manifest breach of the right to defend the proceedings. This exception concerns a fundamental procedural failure. It does not permit review of the foreign judgment's substantive merits.

A defendant who remained unaware that long-dormant proceedings had been reactivated until the appeal period had expired had manifestly been denied a fair trial. Enforcement was therefore contrary to public policy.

The appellant obtained a damages judgment in the District Court of Rotterdam after reactivating a medical negligence claim which had remained dormant for 12 years. The respondent had moved to England and received no notice of the reactivation, his lawyer's withdrawal, the resumed proceedings or the judgment. He first learned of the matter when the Dutch judgment was registered for enforcement in England, after his Dutch appeal period had expired.

Deputy Master Chism set aside registration on public-policy grounds. His Honour Judge Richard Seymour QC dismissed an appeal from that order. Although the proceedings before the Deputy Master were procedurally irregular, the Court of Appeal treated the judge's decision as the first appeal.

The central issue was whether Article 27(1) of the Brussels Convention permitted refusal of recognition because the originating procedure had manifestly denied the respondent a fair opportunity to defend himself.

1. Appeal dismissed unanimously. Lord Phillips MR delivered the judgment of the Court. On the unusual facts, enforcement of the Rotterdam judgment would be contrary to public policy under Article 27(1) of the 1968 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

2. The Convention seeks simple and rapid circulation of judgments. Courts in the enforcing state should therefore apply a strong presumption that the procedures of another state party to the Human Rights Convention comply with Article 6. That presumption is not irrebuttable.

3. The public-policy exception does not permit an enforcing court to review a foreign judgment's substantive merits or decline enforcement merely because the foreign court's substantive decision infringed Community law. A distinction exists between reviewing such a decision and examining whether the procedure producing it violated the fundamental right to a fair trial.

4. Following Krombach v Bamberski, Article 27(1) may operate exceptionally where the safeguards of the originating state and the Convention have proved insufficient to protect a defendant against a manifest breach of the right to defend the proceedings. The court must have heard both parties and afforded the defendant a fair chance to present his case.

5. The respondent had been unaware that the proceedings had been reactivated until the time for appealing had expired. The claimant's lawyers knew from the former lawyers' communications and withdrawal that the respondent was probably unaware of the resumed action. The proceedings nevertheless continued without him or any representative. Whatever Dutch procedure permitted, the resulting process manifestly failed to provide the fair trial required by Article 6 of the European Convention on Human Rights.

6. The evidence did not establish that the respondent's former Dutch lawyers remained obliged, after 12 years, to retain or seek his address and notify him of the reactivation. The Court nevertheless based its decision on the procedural consequence: the respondent had no opportunity to defend the resumed claim or pursue an appeal.

1. Court of Appeal: Dismissed the appellant's further appeal and upheld the refusal to enforce the Rotterdam judgment under Article 27(1) of the Brussels Convention.
2. Queen's Bench Division: His Honour Judge Richard Seymour QC dismissed the appeal from Deputy Master Chism. The Court of Appeal treated this judgment as having been delivered on the proper first appeal.
3. Deputy Master: Deputy Master Chism set aside registration of the Dutch judgment. Although he lacked jurisdiction to entertain the purported appeal, his decision was subsequently upheld by the judge.
4. High Court registration: Master Trench registered the District Court of Rotterdam judgment for enforcement on 14 July 2000.