Windhorst v Levy

A foreign judgment registered under the Judgments Regulation may be challenged only within the limits imposed by that Regulation. “Enforceable” refers to formal enforceability in the state of origin, not practical prospects of execution. A judgment remains formally enforceable where, under the law of the state of origin, it continues to be enforceable unless and until a competent court declares otherwise.

Recognition of an insolvency composition under the Insolvency Regulation gives it the same effects in the enforcing state as in the state where the insolvency proceedings opened. It does not permit the enforcing court to substitute its assessment for that of the courts of origin. A stay under CPR rule 83.7(4) requires special circumstances making enforcement unjust or inexpedient. The circumstances must be assessed consistently with the position in the state of origin.

Albert Levy obtained a German judgment dated 10 March 2003 requiring Lars Windhorst to repay $2 million plus interest. Levy obtained registration of that judgment in the Queen’s Bench Division under Council Regulation (EC) 44/2001.

Windhorst appealed against the registration order. He argued that a German insolvency plan, approved in 2005 and made binding in 2007, had waived the judgment debt and was required to be recognised under Council Regulation (EC) 1346/2000. Alternatively, he sought a stay of execution under CPR rule 83.7(4), pending German declaratory proceedings concerning enforceability. The central questions were whether the judgment remained formally enforceable for the purposes of the Judgments Regulation and whether enforcement in England and Wales would be unjust.

1. Appeal against registration dismissed. The court did not need finally to resolve whether an appeal under article 45 of Council Regulation (EC) 44/2001 could raise objections beyond articles 34 and 35. On the evidence, the relevant precondition was satisfied.
2. For the purposes of the Judgments Regulation, “enforceable” means formally enforceable in the state where the judgment was given. It does not require proof that execution is practically available or likely. The 2003 German judgment remained formally enforceable because, under German law, it would remain so unless enforcement was declared inadmissible under section 767 ZPO. The German courts had instead imposed stays conditional on security.
3. The insolvency plan was a composition recognised under article 25(1) of Council Regulation (EC) 1346/2000. Recognition required it to have the same effects in England and Wales as it had under German law. It did not make the judgment unenforceable where German law did not do so. The English court could not substitute its assessment for that of the German courts on enforceability.
4. The application for a stay under CPR rule 83.7(4) was refused. The outstanding German proceedings and the insolvency plan could amount to special circumstances, but they did not make enforcement unjust or inexpedient. The judgment remained enforceable because Windhorst had not obtained a German declaration to the contrary and had declined to provide the security required by the German courts.
5. An unconditional stay would also have given Windhorst greater protection in England than in Germany. If a stay had been justified, it would have been conditional on comparable security. The respondent’s application for alternative service was granted, and the parties were directed to agree the consequential order.

1. High Court (Queen’s Bench Division): the appeal against the registration order made by Master Eastman on 17 August 2020 was dismissed. The application for a stay of execution was refused.