British Seafood Ltd. v Kruk & Anor

Under Article 34.2 of Regulation 44/2001, the central question is whether the defendant had a proper opportunity to arrange a defence before judgment, rather than whether service complied with formal requirements alone. The registration court may consider all relevant circumstances, including findings on service in the state of origin and whether any failure of service was attributable to the defendant. A defendant who receives the originating order and ignores it cannot generally rely on Article 34.2. A certificate under Article 54 may be dispensed with where the registration court has sufficient information. Enforcement proceedings may properly be stayed where pending civil or criminal proceedings could nullify the judgment or require repayment.

Master Leslie registered for enforcement in England a Polish payment judgment against British Seafood Ltd. under CPR 74.3. British Seafood applied under CPR 74.8 to set aside registration, arguing that it had not been served with the Polish proceedings in sufficient time, that the required certificate was absent, and that the death of one respondent had not been disclosed.

The Polish order had been faxed to British Seafood with an English translation in September 2002. Subsequent service was effected by post at the company’s registered address in May 2003. Several Polish appellate courts rejected the company’s service arguments. The central issues were whether Article 34.2 or Articles 53 to 55 of Regulation 44/2001 prevented recognition or registration, and whether the English proceedings should be stayed pending further civil and criminal proceedings in Poland.

1. Appeal against registration dismissed. British Seafood had not established any ground under Article 34.2 of Regulation 44/2001 for setting aside registration.
2. Article 34.2 is concerned principally with substance rather than form. The issue is whether the defendant had a proper opportunity to contest the proceedings before judgment. The registration court is not bound by the originating state’s decision on service, but may take it into account with all other circumstances, including whether non-service was the defendant’s responsibility.
3. The September 2002 fax enclosed a certified English translation of the payment order and made clear that British Seafood had to act within a limited period if it wished to defend the proceedings. British Seafood ignored it. The purpose of Article 34.2 was therefore not engaged. The later faxes reinforced the warning.
4. Alternatively, service by post at the company’s registered address in May 2003 was valid under the CPR. If the documents were not received because the company no longer used that address, the failure was its responsibility. The company should have arranged for mail sent to its registered address to be redirected.
5. The absence of the certificate required by Article 54 did not prevent registration. Article 55 permitted the court to dispense with it where sufficient information was available. The decisions of three Polish appellate courts showed that the judgment was enforceable. The surviving respondent’s authority to act for the heirs also resolved the objection concerning the first respondent’s death.
6. Despite dismissing the appeal, the court stayed the proceedings under Article 46.3 of the Regulation, RSC Order 46, rule 11 and Order 47, rule 1. Pending civil and criminal proceedings in Poland might render the judgment a nullity or require repayment. The parties were directed to agree the precise form of the stay order.

The judgment records that Master Leslie registered the Polish judgment for enforcement on 4 April 2008. The High Court dismissed British Seafood Ltd.’s application under CPR 74.8 to set aside that registration, but stayed the enforcement proceedings.