Spain v The London Steam-Ship Owners' Mutual Insurance Association Ltd

On an appeal against registration of a foreign judgment under the Brussels 1 Regulation, the appeal court has power to order disclosure because CPR 74.8 incorporates CPR Part 52, including the power in CPR 52.20(1) to exercise the lower court’s powers.

That power should be exercised sparingly. Disclosure will ordinarily be inappropriate where the permitted grounds of appeal are limited, evidence is the primary means of presenting relevant facts, and disclosure would undermine the Regulation’s objective of rapid and simple recognition and enforcement. Narrowly focused expert evidence may nevertheless be permitted where it addresses whether an alleged procedural breach could have affected the foreign judgment, without reviewing its substantive correctness.

The Club appealed from Master Cook’s order registering a judgment of the Spanish Supreme Court concerning pollution damage caused by the vessel PRESTIGE. Spain sought enforcement in England. The Club’s appeal relied, among other grounds, on alleged incompatibility with earlier English proceedings and on public policy under article 34 of the Brussels 1 Regulation.

At a case management conference, the Club sought disclosure and permission for expert evidence. Spain opposed disclosure, relying on the limited statutory grounds of appeal, the Regulation’s policy of rapid enforcement, and the prohibition on reviewing the foreign judgment’s substance. The issues concerned the scope of disclosure and expert evidence on alleged procedural unfairness and Spanish law.

1. Power to order disclosure. The court held that CPR 74.8 applies CPR Part 52 to appeals under the Brussels 1 Regulation. Under CPR 52.20(1), the appeal court has all the powers of the lower court. Since a claim for registration of a foreign judgment is a claim for the purposes of CPR 31.1(2), the court hearing the appeal also has power to order disclosure.
2. Exceptional exercise of the power. Disclosure should be ordered rarely. The grounds for resisting recognition are limited by article 34. Relevant factual matters will ordinarily be presented through evidence, and disclosure may impede the Regulation’s objective of the free movement of judgments and the rapid, simple and efficient recognition and enforcement of judgments: see National Bank of Greece v Christofi [2019] 1 WLR 1435 at paragraph 58. Disclosure should therefore be ordered only where strictly necessary and appropriate.
3. First disclosure request. The Club’s request concerning whether Spain fell within the protected class under Section 3 of Chapter II was refused. Spain was directed to provide fair and candid evidence about its activities and involvement with insurance. A focused disclosure application could be made later if that evidence proved inadequate.
4. Public policy issue. Disclosure concerning the underwater investigation was not ordered. Spain’s evidence was expected to address when and how the results were disclosed to the master. If it failed to do so, Spain would be unable to advance its factual case. A focused application could be made if disclosure later became necessary.
5. Expert evidence. Permission was granted for precise expert evidence on Spanish law and for narrowly defined naval architectural evidence concerning whether the investigation results could have affected the master’s defence. Article 45 prevented review of the foreign judgment’s substance, but did not require refusal of relevant evidence directed to whether an alleged procedural breach might have made a difference.
6. The evidence was to be exchanged consecutively, with the Club serving first. The trial was directed to take place after 1 December 2020. The issue concerning distribution of the liability fund among the Spanish claimants was adjourned until after determination of the appeal.

• High Court, Commercial Court: Master Cook ordered registration in England of the Spanish judgment. The Club appealed.
• High Court, Commercial Court: The present court determined case management issues on the appeal, refusing disclosure at that stage, permitting specified expert evidence, and giving directions for the trial.