Chapter 18

Foreign Judgments

Chapter Contents

Introduction

Disputes arising in international trade may be determined by foreign courts or arbitral tribunals. The question, therefore, arises as to the circumstances in which the English courts will recognise or enforce a foreign judgment or arbitral award. Recognition implies that the judgment or award is treated as conclusive of some matter which it determined. Enforcement implies that the judgment or award ordered something to be done, such as the payment of a sum of money, or the actual performance of a contract, or not to be done, as in the case of an injunction prohibiting the commission of a breach of contract or a tort, and that steps of an official nature are taken with a view to ensuring that the order is complied with.

A variety of regimes apply to the recognition and enforcement in England of foreign judgments and awards. In the case of European judgments, the matter is governed mainly by EC Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters,1 which is commonly known as the Brussels I Regulation and applies to judgments from other EU member states.2 In the case of non-European judgments (‘external judgments’), it is governed by the common law, the Administration of Justice Act 1920, and the Foreign Judgments (Reciprocal Enforcement) Act 1933. In the case of foreign arbitral awards, it is governed mainly by the NewYork Convention of 10 June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards, now transposed by the Arbitration Act 1996.3

European judgments

Chapter III (Arts 32–56) of the Brussels I Regulation governs the recognition and enforcement of judgments4 between the EU member states.5 As well as defining the substantive conditions for granting recognition or enforcement, the Regulation (in Arts 38–56) creates a unified procedure for obtaining a decision authorising enforcement.6 The unified procedure involves an ex parte application to a court of the state addressed, on which a prompt decision must be given. The decision on the initial application is subject to an appeal inter partes, and the decision on the appeal is subject

1 [2001] OJ L12/1.

2 For the extension of the Brussels I Regulation to Denmark, see EC Council Decisions 2005/790 and 2006/325; [2005] OJ L299/61 and [2006] OJ L120/22. Judgments from Switzerland, Norway or Iceland are governed by the Lugano Convention 2007, [2009] OJ L147/5, which provides a regime similar to the Brussels I Regulation. As regards judgments from other parts of the UK, see Pt II of the Civil Jurisdiction and Judgments Act 1982.

3 On the enforcement of foreign awards under the New York Convention, see Chapter 19.

4For this purpose, ‘judgment’ refers to a decision emanating from a judicial body of a member state, deciding on its own authority the issues between the parties. Thus the concept excludes a court settlement, falling within Chapter IV of the Regulation, even if it was reached in a court of a member state and brought legal proceedings to an end, since such settlements are essentially contractual in that their terms depend primarily on the parties’ intention. See Case C-414/92: Solo Kleinmotoren v Boch [1994] ECR I-2237. In contrast, the concept extends to an admiralty judgment ordering the creation of a limitation fund; see Case C-39/02: Mærsk Olie & Gas v de Haan & de Boer [2004] ECR I-9657. Chapter IV (Arts 57–58) provides for the enforcement of court settlements and authentic instruments from other member states. But it does not extend to an acknowledgment of indebtedness whose authenticity has not been established by a public authority or other authority empowered for that purpose by the state of origin; see Case C-260/97: Unibank v Christensen [1999] ECR I-3715.

5A revised version of the Brussels I Regulation, in the form of EU Regulation 1215/2012, [2012] OJ L351/1, will become applicable on 10 January 2015 and will apply to judgments given in proceedings instituted on or after that date. Under the revised Chapter III, a judgment given in a member state which is enforceable in that state will be made enforceable (as well as recognisable) in the other member states without any declaration of enforceability being required. But there will be a special

procedure for obtaining a decision refusing enforcement, and the procedure may also be used to obtain a decision establishing or refusing recognition.

6 On legal aid in proceedings under Chapter III, see Art 50, and Case C-156/12: GREP v Freistaat Bayern, 13 June 2012.

to a single further appeal on a point of law. The unified procedure leads to a decision granting (or refusing) a declaration of enforceability (or an order authorising registration for enforcement), and once this is obtained the measures of actual enforcement are governed mainly by the law of the state addressed. An ex parte decision in favour of enforcement enables the applicant to take protective measures against the respondent’s property, but definitive enforcement is delayed until the appeal inter partes has become time barred or has been disposed of.

The same substantive conditions apply to both recognition and enforcement, except that for enforcement there is an additional requirement that the judgment should be enforceable in the original country.7 The unified procedure for obtaining a declaration of enforceability (or an order authorising registration for enforcement) laid down by Arts 38–56 is exclusive.8 The same procedure can also be used to obtain a decision establishing recognition, but recognition can also be sought incidentally in any proceedings where it is relevant.9 In principle, recognition entails that the judgment must be given the same effects in the state addressed as it has in the state of origin.10 In the case of uncontested claims, a more radical solution has been adopted by EC Regulation 805/2004, creating a European Enforcement Order for Uncontested Claims,11 which applies from 21 October 2005.

Chapter III of the Brussels I Regulation is confined to judgments which are principally concerned with matters which fall within the scope of the Regulation as defined by Art 1, and it gives way to existing specialised conventions in accordance with Art 71.12 By Art 66, Chapter III applies to judgments given after the entry into force of the Regulation for both the member state of origin and the member state addressed, subject to a minor transitional proviso for cases where the original action was instituted before the entry into force of the Regulation and of the Brussels or Lugano Conventions between the states in question.13

To be enforceable (as distinct from recognisable) abroad under Chapter III of the Regulation, the judgment must be enforceable in the state of origin, but it is not necessary that the judgment

7See Arts 34–36, 38 and 45(2). See also Case C-267/97: Coursier v Fortis Bank [1999] ECR I-2543, and Case C-139/10: Prism Investments v van der Meer, 13 October 2011, where the European Court ruled that it is enough that the judgment is, in formal terms,

11[2004] OJ L143/15. Chapter II of Regulation 805/2004 enables a court of a member state which has given a judgment on an uncontested claim to issue a certificate, certifying the judgment as a European Enforcement Order, provided that the

minimum procedural standards laid down by Chapter III thereof have been satisfied. The certificate then renders the judgment enforceable in the other member states, without the need for a declaration of enforceability to be obtained from a court of the state addressed, as would be required under Regulation 44/2001. Under Chapter IV of Regulation 805/2004, enforcement procedures, including measures of actual execution, remain governed by the law of the state addressed, which must treat

a certified judgment in the same way as a local judgment. With minimal exceptions, any challenge to the judgment or the certificate must be made in the state of origin. But the requirements of service imposed by Regulation 805/2004 preclude the certification as a European Enforcement Order of a judgment by default issued against a defendant whose address is unknown; see Case C-292/10: G v De Visser, 15 March 2012. See also EC Regulation 1896/2006, creating a European Order for Payment Procedure, [2006] OJ L399/1; EC Regulation 861/2007, establishing a European Small Claims Procedure, [2007] OJ L199/1; and Case C-215/11, Szyrocka v SiGer Technologie, 13 December 2012.

12See p 487 above. Moreover, Chapter III does not apply to the recognition or enforcement in a member state of a judgment given in another member state if the judgment is principally concerned with the recognition or enforcement of a judgment given in a non-member country; see Case C-129/92: Owens Bank v Bracco [1994] ECR I-117.

13Chapter III of the Brussels I Regulation does not apply at all if the judgment was given before the entry into force of the Regulation for both of the states involved. The recognition and enforcement of such judgments remains governed by the Brussels Convention or the Lugano Convention, if otherwise applicable. See T v L [2008] IESC 48 (Irish Supreme Court), and Case C-514/10: Wolf Naturprodukte v SEWAR, 21 June 2012.

should award a sum of money. It could, for example, order the specific performance of a contract.14 There is no requirement that the judgment should in any sense be final in the original country.15 On the contrary, Chapter III applies even if the judgment is subject to any form of appeal or review there, whether in a higher court or in the court which gave the judgment. Instead, the problem of appealable judgments is regulated by Arts 37 and 46, which enable the court addressed to stay its proceedings or require the applicant for enforcement to give security where an ordinary appeal is pending or admissible in the original country. Thus, in general, judgments on preliminary issues and interim orders, as well as judgments given at the conclusion of a trial, have to be recognised and enforced under Chapter III.16 However, Chapter III does not extend to interim orders which are not intended to govern the legal relationships of the parties, but to arrange the further conduct of the proceedings, such as orders for the taking of evidence17; nor to orders for provisional or protective measures – for example, freezing assets – which are made without the defendant having been summoned to appear and are intended to be enforced without prior service.18

As regards the conditions for recognition and enforcement, the basic principle, laid down by Arts 33 and 38, is that a judgment to which Chapter III applies must be recognised and enforced in the other member states. This is reinforced by Arts 36 and 45(2), which emphasise that in no circumstances may the court addressed review the substance or merits of the judgment, and by Art 35(3), which in most cases prevents the court addressed from reviewing the jurisdiction of the original court. A very limited range of exceptions, in which recognition and enforcement must be refused, are specified by Arts 34, 35 and 45(1). The specified exceptions are exhaustive,19 but in these cases the Regulation insists that recognition and enforcement must be denied, regardless of the traditional law of the state addressed.20

The prohibition against reviewing the substance of the judgment excludes the traditional English rules preventing recognition of a judgment obtained by fraud, under which the party alleging fraud could rely on evidence which he placed or could have placed before the foreign court.21 Under the Regulation, the remedy for fraud must normally be sought in the original country. It is acceptable for the court addressed to invoke the public policy proviso specified by Art 34(1) against recognition on account of fraud only in the rare situation where there is cogent newly discovered evidence, such as would enable the reopening of a judgment obtained in the country addressed, but the law of the original country denies any possibility of proceedings to reopen the judgment.22

The prohibition against reviewing the jurisdiction of the original court is subject to three minor exceptions. The first exception, laid down by Art 35(1), is where the dispute falls within the scope of Arts 8–14, 15–17 or 22, which deal respectively with insurance, protected consumer contracts, and exclusive jurisdiction by virtue of subject matter, and the original court assumed jurisdiction

14See Art 38; the Schlosser Report [1979] OJ C59/1, at p 132; and EMI v Watterbach [1992] 1 QB 115.

15See Case C-183/90: Van Dalfsen v Van Loon [1991] ECR I-4743; Jenard [1979] OJ C59/1, at p 43; and Schlosser [1979] OJ C59/1,

at p 126. But, by Art 49, a judgment which orders a periodic payment by way of penalty is enforceable in the other member states only if the amount of the payment has been finally determined by the courts of the original country.

16 See The Heidberg [1994] 2 Lloyd’s Rep 287 (Diamond QC in the Queen’s Bench Division); and The Tjaskemolen (No 2) [1997] 2 Lloyd’s Rep 476 (Clarke J).

17See Schlosser [1979] OJ C59/1, at pp 126–7.

18Case 125/79: Denilauler v Couchet Frères [1980] ECR 1553; Case C-474/93: Hengst v Campese [1995] ECR I-2113; EMI v Watterbach [1992] 1 QB 115; and Normaco v Lundman (1999) The Times 6 January.

19See Guittienne v SNCI (1996) unreported, 6 March (French Court of Cassation).

20See Case C-80/00: Italian Leather v WECO Polstermöbel [2002] ECR I-4995; and Gaudemet-Tallon, Compétence et Exécution des Jugements en Europe, 4th edn, 2010, LGDJ, at paras 433–35.

21See Abouloff v Oppenheimer (1882) 10 QBD 295; Vadala v Lawes (1890) 25 QBD 310; the Administration of Justice Act 1920, s 9(2) (d); the Foreign Judgments (Reciprocal Enforcement) Act 1933, s 4(1)(a)(iv); Syal v Heyward [1948] 2 KB 443; and Owens Bank v Bracco [1992] 2 AC 443.

22See Interdesco v Nullifire [1992] 1 Lloyd’s Rep 180; and SISRO v Ampersand Software [1994] ILPr 55 (CA).

contrary to those provisions. The rationale is to prevent the policies of protecting policy-holders and consumers, and respecting the interests of the state of exclusive jurisdiction, from being undermined. However, the significance of this exception is greatly reduced by the supplementary rule, laid down by Art 35(2), that for this purpose the court addressed is bound by the findings of fact on which the original court based its jurisdiction. Moreover, in Apostolides v Orams,23 the European Court ruled that Art 35(1) does not enable a court of a member state to refuse recognition or enforcement of a judgment given by the courts of another member state concerning land situated in an area of the latter state over which its government does not exercise effective control. Nonetheless, the Court of Appeal has ruled that an important effect of Art 35(1), taken with Art 22(4), is to prevent a decision given in one member state on the validity of a local patent or trade mark from giving rise to an estoppel binding in proceedings concerning the validity, or the validity and infringement, or possibly the infringement alone, of another patent or trade mark in another member state.24

The second exception, laid down by Arts 35(1) and 72, is designed to offer some protection to persons domiciled or habitually resident outside the member states from judgments given on excessive jurisdictional bases under Art 4. It preserves the operation of agreements entered into prior to the entry into force of the Regulation pursuant to Art 59 of the Brussels Convention, by which a member state gave an undertaking to a third country not to recognise judgments given in other member states against defendants domiciled or habitually resident in the third country in cases where Art 4 applied and the judgment could be founded only on a ground of jurisdiction specified in Art 3(2). Such agreements exist between the UK and Canada25 and Australia.26

The third exception, laid down by Art 66, applies where at the institution of the action leading to the judgment neither the Regulation nor the Brussels and Lugano Conventions were in force between the state of origin and the state addressed.

A fourth case of jurisdictional review, relating to Art 31, has emerged from the European Court’s decision in Mietz v IntershipYachting Sneek.27 The European Court emphasised the importance of ensuring that enforcement under Chapter III of provisional or protective measures allegedly founded on the jurisdiction laid down in Art 31, but which go beyond the limits of that jurisdiction, does not result in circumvention of the rules on jurisdiction as to the substance set out in Chapter II. Thus it ruled that enforcement under Chapter III must be refused where the following conditions are satisfied: the judgment was delivered at the end of proceedings which were not, by their very nature, proceedings as to substance but summary proceedings for the granting of interim measures; the measure ordered, such as an unconditional interim payment, is not a provisional or protective measure permissible under Art 31; and the original court had either expressly indicated in its judgment that it had based its jurisdiction on Art 31, or had been silent as to the basis of its jurisdiction.

Apart from the minor cases of permissible jurisdictional review, the substantive grounds for refusal of recognition and enforcement are laid down by Art 34. By Arts 34(1) and 45(1), a judgment is not to be recognised or enforced under Chapter III if its recognition is manifestly contrary to public policy in the state addressed. However, Art 35(3) of the Regulation specifically forbids the use of public policy to extend jurisdictional review, and in Krombach v Bamberski28 the

23Case C-420/07, [2009] ECR I-3571.

24See Prudential Assurance Co Ltd v Prudential Insurance Co of America [2003] 1 WLR 2295 (CA).

25See the Ottawa Convention of 24 April 1984, providing for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters; and the Reciprocal Enforcement of Foreign Judgments (Canada) Order 1987 SI 1987/468 (as amended).

26See the Canberra Agreement of 23 August 1990, providing for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters; and the Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994 SI 1994/1901.

27Case C-99/96: [1999] ECR I-2277. See also Comet Group v Unika Computer [2004] ILPr 1.

28Case C-7/98: [2000] ECR I-1935.

European Court ruled that this applies even where the original court wrongly founded its jurisdiction, in regard to a defendant domiciled in the state addressed, on a rule which utilises nationality. Moreover, in Hoffmann v Krieg29 and Hendrikman v Magenta Druck & Verlag,30 the European Court emphasised that the public policy proviso should operate only in exceptional cases, and that recourse to it is in any event precluded when the issue is dealt with by a specific provision, such as Art 34(2) on timely notification of the defendant, or Art 34(3) on irreconcilability with a local judgment.

More generally, in Krombach v Bamberski,31 the European Court emphasised that, although the member states in principle remain free to determine according to their own conceptions what public policy requires, the limits of the concept are a matter of interpretation of the Regulation, for determination by the European Court. Thus, in view of Arts 36 and 45(2), the court addressed cannot refuse recognition solely on the ground that there is a discrepancy between the legal rule applied by the court of the state of origin and that which would have been applied by the court of the state addressed if it had been seised of the dispute. Nor can the court addressed review the accuracy of the findings of law or fact made by the court of origin. Recourse to public policy can be envisaged only where recognition or enforcement of the judgment would be at variance to an unacceptable degree with the legal order of the state addressed in as much as it infringes a fundamental principle. The infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the state addressed, or of a right recognised as being fundamental within that legal order. The European Court applied these principles in Renault v Maxicar,32 where it ruled that public policy could not be invoked on the ground that the original judgment involved an error of EU law – for example, as to the legitimacy under Arts 34–36 and 102 of the Treaty on the Functioning of the European Union of a design right in spare parts. Somewhat similarly, the European Court of Human Rights has accepted that a court requested to enforce a foreign judgment need only carry out a limited review of the judgment’s compatibility with the European Convention on Human Rights.33

One situation in which the public policy proviso may properly be invoked is where, despite proper notification of the institution of the original action (satisfying Art 34(2)), the respondent was in some other way denied a reasonable opportunity to present his case. This was accepted by the European Court in Krombach v Bamberski,34 where a French court, hearing a prosecution for manslaughter and an ancillary civil claim by relatives of the victim, had ordered the accused to appear in person, and, on his failure to do so, had refused to hear his defence counsel. The European Court ruled that a court of a member state is entitled to hold that a refusal to hear the defence of an accused person who is not present at the hearing constitutes a manifest breach of a fundamental right and, therefore, to deny recognition under Art 34(1), despite the fact that Art 61 was inapplicable because of the intentional character of the offence.35 Similarly, in Maronier v Larmer,36 the Court of

29 Case 145/86: [1988] ECR 645.

30 Case C-78/95: [1996] ECR I-4943.

31 Case C-7/98: [2000] ECR I-1935.

32Case C-38/98: [2000] ECR I-2973. Cf Case C-126/97: Eco Swiss China Time v Benetton [1999] ECR I-3055, involving a domestic arbitration award.

33See Lindberg v Sweden, [2004] ECHR 737.

34Case C-7/98: [2000] ECR I-1935.

35By Art 61, without prejudice to more favourable provisions of national laws, where a person domiciled in a member state is prosecuted in a criminal court of another member state of which he is not a national for an offence which was not intentionally committed, he may be defended by persons qualified to do so, even if he does not appear in person. However, the court seised may order appearance in person; and then, in the case of failure to appear, a civil judgment given without his having had the opportunity to arrange for his defence need not be recognised or enforced in the other member states. In Case 157/80: Rinkau [1981] ECR 1391, the European Court ruled that this provision extends to any offence whose definition does not require the existence of intent by the accused to commit the punishable act or omission, but that it is confined to criminal proceedings in which the accused’s civil liability, arising from the elements of the offence for which he is being prosecuted, is in question or on which such liability might subsequently be based.

36[2003] QB 620 (CA). See also Citibank v Rafidian Bank [2003] ILPr 49.

Appeal refused on grounds of public policy to enforce a Dutch judgment given in proceedings which had been reactivated after 12 years without the defendant’s knowledge, and without his becoming aware of the reactivation until after the time for appealing against the judgment had expired.

In Gambazzi v DaimlerChrysler,37 which involved the enforcement in Italy of an English default judgment, given after the English court had made an order debarring the defendant from participating in the proceedings because of his failure to comply with a disclosure order requiring him to provide information about his assets and to produce documents relevant to the claim, the European Court accepted that, under Art 34(1), the court addressed may take into account, with regard to public policy, the fact that the original court had ruled on the applicant’s claims without hearing the defendant, who had entered appearance before it but who had been excluded from the proceedings by order on the ground that he had not complied with the obligations imposed by an order made earlier in the same proceedings. However, it insisted that in this scenario refusal of recognition and enforcement would be justified only where the court addressed reaches the conclusion, after a comprehensive assessment of the proceedings and in the light of all the circumstances, that the exclusion measure constituted a manifest and disproportionate infringement of the defendant’s right to be heard. Similarly, in Trade Agency v Seramico Investments,38 which involved the enforcement in Latvia of a default judgment given by the English High Court, the European Court ruled that, in the case of a default judgment which does not contain an assessment of the subjectmatter or the basis of the action and which lacks any argument on the merits, enforcement may be refused on grounds of public policy only if it appears to the court addressed, after an overall assessment of the proceedings, and in the light of all the relevant circumstances, that the judgment is a manifest and disproportionate breach of the defendant’s right to a fair trial, referred to in Art 47(2) of the Charter of Fundamental Rights of the European Union, on account of the impossibility of bringing an appropriate and effective appeal against it.

By Arts 34(2) and 45(1), recognition and enforcement of a judgment must be refused where it was given in default of appearance, and the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so. This protection at the stage of recognition or enforcement is in addition to that conferred in the original action by Art 26 and applies regardless of the defendant’s domicile.39 However, a defendant is deemed to have appeared where, in connection with a claim for compensation joined to criminal proceedings, he answered at the trial through counsel of his own choice to the criminal charges, but did not express a view on the civil claim on which oral argument was also submitted in the presence of his counsel.40 In contrast, there is no sufficient appearance where someone purporting to represent the defendant, but in fact acting without his authority, appeared before the original court.41 A judgment which was originally given in default of appearance is regarded as a default judgment, despite the fact that the defendant subsequently lodged an objection against the judgment which was rejected by a court of the state of origin as inadmissible because it was out of time, or that the defendant unsuccessfully appealed against the judgment on the sole ground that the original court lacked jurisdiction.42 The relevant

37Case C-394/07, [2009] ECR I-2563.

38Case C-619/10, 6 September 2012.

39See Case 166/80: Klomps v Michel [1981] ECR 1593; Case 228/81: Pendy Plastic Products v Pluspunkt [1982] ECR 2723; and Case 49/84: Debaecker v Bouwman [1985] ECR 1779.

40See Case C-172/91: Sonntag v Waidmann [1993] ECR I-1963.

41See Case C-78/95: Hendrikman v Magenta Druck & Verlag [1996] ECR I-4943.

42See Case 166/80: Klomps v Michel [1981] ECR 1593; and Case C-39/02: Mærsk Olie & Gas v de Haan & de Boer [2004] ECR I-9657. See also Tavoulareas v Tsavliris [2006] EWHC 414 (Comm), where Tomlinson J held that a judgment counted as a default judgment

instituting document is the document or documents whose service enables the claimant, under the law of the state of origin, to obtain, in default of appropriate action taken by the defendant, a decision capable of being recognised or enforced under the Regulation.43

Under Art 34(2), both the manner and the time of service are now subjected exclusively to an EU standard.Thus, in ASML v Semiconductor Industry Services,44 the European Court recognised that under the Regulation a mere formal irregularity in service, which does not adversely affect the rights of defence, is not sufficient to prevent recognition and enforcement.45 In exceptional circumstances, service in accordance with the law of the state of origin may be inadequate for the purposes of enabling the defendant to take steps to arrange for his defence, and account may be taken of exceptional circumstances which arose after service, such as the claimant’s discovering the defendant’s new address before obtaining a default judgment.46 Moreover the information as to service contained in the certificate issued by the court of origin under Art 54 is not conclusive.47 However, service affected at the defendant’s business address or home, where in the ordinary course it should come to his attention, will suffice, provided that the time between the date of service and the entry of the default judgment should have been sufficient for him to arrange for his defence, and a period of five weeks in which to enter a notice of appearance will normally be adequate.48 Refusal of recognition and enforcement under Art 34(2) is possible in cases where a default judgment has properly been given against a defendant whose domicile was unknown and who could not be traced, despite genuine and diligent investigations.49

Departing from the Brussels Convention, Art 34(2) of the Regulation prevents the court addressed from refusing recognition and enforcement by reason of insufficient service of the instituting document if the defendant failed to commence proceedings to challenge the judgment in the state of origin when it was possible for him to do so. In ASML v Semiconductor Industry Services,50 the European Court construed this proviso as meaning that it is ‘possible’ for a defendant to bring proceedings to challenge a default judgment against him only if he was in fact acquainted with its contents, because it was served on him in sufficient time to enable him to arrange for his defence before the courts of the state of origin. It explained that the necessary service of the default judgment need not comply with all the relevant formalities, but it must be affected in sufficient time and in such a way as to enable the defendant to arrange for his defence. However, in Apostolides v Orams,51 the European Court ruled that recognition or enforcement of a default judgment cannot be refused under Art 34(2) where the defendant was able to and did in fact commence proceedings in the original country to challenge the default judgment; and those proceedings enabled him to argue that he had not been served with the instituting document in sufficient time and in such a way as to enable him to arrange for his defence; but his application to set aside the default judgment failed on the ground that he had failed to show any arguable defence on the merits.

where the only participation by the defendant had been to join in a request for an agreed adjournment, while at the same time protesting that the court lacked jurisdiction, and the judgment was expressed by the court rendering it to be given in default of appearance.

43See Case 166/80: Klomps v Michel [1981] ECR 1593; and Case C-474/93: Hengst v Campese [1995] ECR I-2113. See also on admiralty limitation orders, Case C-39/02: Mærsk Olie & Gas v de Haan & de Boer [2004] ECR I-9657.

44Case C-283/05: [2006] ECR I-12041. Cf Tavoulareas v Tsavliris [2006] EWHC 414 (Comm), where Tomlinson J held that an effective notification of the foreign instituting document through the defendant’s English solicitors was insufficient.

45Cf the rulings under the Brussels Convention in Case 166/80: Klomps v Michel [1981] ECR 1593; Case C-305/88: Lancray v Peters [1990] ECR I-2725; Case C-123/91: Minalmet v Brandeis [1992] ECR I-5661; and Case C-522/03: Scania v Rockinger [2005] ECR I-8639.

46See Case 166/80: Klomps v Michel [1981] ECR 1593; and Case 49/84: Debaecker v Bouwman [1985] ECR 1779.

47See Case C-619/10: Trade Agency v Seramico Investments, 6 September 2012.

48See TSN v Jurgens [2002] 1 WLR 2459 (CA). See also Lacoste v Keely Group [1999] 1 ILRM 510.

49See Case C-327/10: Hypotecˇní Banka v Lindner, 17 November 2011.

50Case C-283/05, [2006] ECR I-12041.

51Case C-420/07, [2009] ECR I-3571.