Chachani Misti y Pichu Pichu SRL v Hostplanet Ltd & Anor

Certification as a European Enforcement Order is available only within the confined scheme of Regulation (EC) No 805/2004. A claim may be uncontested because the debtor has taken no formal step to oppose it, but the procedural safeguards in Chapter III must still be satisfied.

Where the debtor’s physical address is unknown, service under Article 14 is unavailable. However, Article 18(2) can cure non-compliance if the debtor’s conduct in the proceedings proves personal receipt in sufficient time to arrange a defence. Conduct need not be a formally required procedural step. A responsive email directing that documents be sent by email may suffice.

The judgment creditor obtained a default judgment for US$100,000 against the second defendant in proceedings concerning copyright infringement. It applied for a European Enforcement Order under Regulation (EC) No 805/2004.

The second defendant had been served by email and had not filed an acknowledgment of service or defence. The issue was whether his email response, together with the other circumstances, satisfied the Regulation’s requirements despite uncertainty about his physical address and the use of email service.

1. Application granted. The judgment of 8 March 2016 was certified, or ordered to be certified, as a European Enforcement Order against the second defendant.
2. The claim was uncontested under Article 3(1)(b). The defendant had not objected in accordance with the procedural requirements of the Civil Procedure Rules.
3. The EEO procedure is an exception to the ordinary system for cross-border enforcement and its conditions are to be construed restrictively. Under Article 14(2), the debtor’s address means the physical place where the debtor is based. An email address, including one whose top-level domain refers to a particular country, does not establish that physical address.
4. Service under Article 14 was therefore unavailable. Nevertheless, Article 18(2) permits non-compliance with Article 13 or 14 to be cured where the debtor’s conduct in the court proceedings proves personal receipt of the document in sufficient time to arrange a defence.
5. For a default judgment, conduct in the proceedings is not limited to formal procedural steps. The second defendant’s reply, directing the creditor to send documents by email, was made in the context and for the purposes of the proceedings. It proved receipt of the claim form and sufficient time to prepare a defence. The Chapter III defect was consequently cured.
6. Article 19 created no further obstacle. Part 13 of the Civil Procedure Rules 1998 provided a mechanism for mandatory or discretionary review of the default judgment under rules 13.2 and 13.3.

First-instance application. The judgment describes the underlying default judgment made by Nugee J on 8 March 2016, but no appellate decision is stated.