De La Hija v Lee (As Executrix of the Estate)

A court of enforcement retains limited inherent jurisdiction to decide whether a document purporting to be a European Enforcement Order is genuinely an EEO. It may refuse enforcement where the certificate does not show on its face that the court of origin certified compliance with the minimum procedural standards. This does not permit review of the underlying judgment or its certification on the merits.

For the purposes of Regulation (EC) No. 805/2004, a challenge under Article 23 must already have been brought in the court of origin. Mere instructions to lawyers are insufficient. The merits of that challenge may be considered when deciding whether exceptional circumstances justify a stay, without determining the merits finally.

The claimant obtained a default judgment in Spain concerning alleged copyright infringement and obtained a European Enforcement Order for approximately €710,000. The EEO was registered in England, although the prescribed certificate did not indicate whether the minimum service requirements had been satisfied.

The defendant applied without notice for a stay under Article 23 of Regulation (EC) No. 805/2004. Master McCloud granted the stay. Master Clark later refused to revoke it under CPR r. 3.1(7), holding that the EEO was deficient on its face and that the stay could be maintained. The claimant appealed on the issues for which permission had been granted, including the court’s jurisdiction to stay or refuse enforcement.

1. Appeal dismissed. Master Clark was correct to refuse to revoke the stay imposed by Master McCloud.
2. The Regulation establishes mutual recognition, but the court of enforcement retains residual control over whether the document presented is genuinely an EEO. Article 20(2) requires production of an authentic certificate. The certificate must show on its face how the minimum procedural standards were certified. This permits verification of the certificate’s formal validity, not review of the underlying proceedings or their certification as to substance: [2018] EWHC 1374 (Ch) at [54]–[58].
3. The failure to complete questions 11 to 13 of the prescribed form meant that the court of origin had not properly certified compliance with the minimum requirements. The purported EEO was therefore not a proper EEO, and the enforcement court had inherent jurisdiction to prevent enforcement. A stay was an appropriate remedy: [2018] EWHC 1374 (Ch) at [62]–[63].
4. Article 23 requires that the debtor has actually challenged the judgment or applied for rectification or withdrawal in the court of origin. A mere instruction to lawyers to take those steps is insufficient. Master McCloud therefore had no jurisdiction under Article 23 when the application was made: [2018] EWHC 1374 (Ch) at [59]–[61].
5. Exceptional circumstances under Article 23(c) impose a high hurdle. The apparent merits of a challenge in the court of origin may be considered when deciding whether to stay enforcement. Article 21(2) does not prevent that limited assessment, provided the enforcement court does not decide the underlying issue itself: [2018] EWHC 1374 (Ch) at [60].
6. Under CPR r. 3.1(7), the court had a discretion whether to revoke the earlier order. Master Clark was entitled to retain the stay because, had the application been refused, it could have been renewed 17 days later and would then have succeeded. The merits of the Spanish challenge and the delay were supporting reasons, but would not alone have justified retaining the order: [2018] EWHC 1374 (Ch) at [64]–[67].
7. The claimant was ordered to pay the defendant’s appeal costs, with an interim payment of £25,000. Permission to appeal on costs was refused.

• High Court (Chancery Division): The appeal from Master Clark’s order was dismissed. The stay of enforcement was maintained.
• Master Clark: Refused to revoke Master McCloud’s stay under CPR r. 3.1(7), holding that the EEO was deficient on its face and that the stay should remain in place.
• Master McCloud: Granted a stay of enforcement on the defendant’s without-notice application.