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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> TSN Kunstoffrecycling Gesellschaft v Mit Beschrankter Haftung [2001] EWCA Civ 746 (11 May 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/746.html
Cite as: [2001] EWCA Civ 746
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Jack)
Strand London WC2 Friday, 11th May 2001 |
||
B e f o r e :
____________________
| TSN KUNSTOFFRECYCLING GESELLSCHAFT | ||
| MIT BESCHRANKTER HAFTUNG | ||
| Claimant/Respondent | ||
| - v - | ||
| HARRY MARIA JURGENS | ||
| Defendant/Applicant |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
appeared on behalf of the Applicant.
The Respondent did not appear and was not represented.
____________________
Crown Copyright ©
- LORD JUSTICE BUXTON: This is a renewed application for permission to appeal from the judgment of Jack J given on 16th February 2001 in which the judge was concerned with an appeal to him in respect of an order made by Master Foster in November 2000 that a judgment ordered in Germany against the present applicant, Harry Jurgens, should be registered in the High Court under section 4 of the Civil Jurisdiction and Judgments Act 1982.
- I do not intend to go into the facts in detail because they are, broadly speaking, not now in dispute. The issue before the learned judge was whether in respect of the German judgment, which was given in default of appearance by Mr Jurgens, he had been "duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence", as provided by Article 27(1) of the Judgments Convention which forms Schedule 1 to the Civil Jurisdiction and Judgments Act 1982.
- Before the judge Mr Jurgens asserted that he had never had notice of the proceedings at all, though he did have notice of the entry of the default judgment. The judge did not accept what Mr Jurgens told him about lack of notice of the original proceedings. That finding by the judge is not appealed, nor of course could it be. The issue for the judge, therefore, under Article 27(2) was, putting it in broad terms, whether Mr Jurgens had had sufficient time.
- That issue, in my judgement, is clearly affected by the question of whether the document instituting the proceedings referred to in Article 27(2) is to be regarded as the original process, leading to a two-week period before the judgment is entered; or the notification to Mr Jurgens, which he accepts he did receive, of the default judgment, after which he had a period of five weeks in order to approach the court. It is clear from the judge's judgment, or if it is not clear it is very probably the case, that he focused upon the five-week period. That, as it seems to me, is shown by the second sentence of paragraph 27 of his judgment. It is not, in my view, certain that that is the correct period for him to have addressed. The Convention speaks of the "document instituting the proceedings", and that, as it seems to me, may well be the original claim before the German court. It may or may not appear surprising that, the defendant having been given the further opportunity than Mr Jurgens had to deal with the matter after entering default judgment, one should, nonetheless, be concerned with the original process. But that, as it seems to me, may be the correct construction of the Convention.
- I am fortified in my belief that a point arises here, and a point of some general importance, by the judgment of the European Court of Justice in case 166/80 [1981] European Court Reports page 1593, where various issues were put to the court and in paragraph 11 of the judgment an answer was given as to the true construction of the words "the document which instituted the proceedings", which may well extend to this case. That authority was put before the learned judge on a different point; but he was not taken to this question because it was not a question that was before him. However, despite the fact that this issue was not raised before the judge, it was necessary for him to come to a correct conclusion on it in order to give the judgment that he did. Therefore it is right, in my judgement, that the Court of Appeal should consider this question, involving, as it does, the construction of a European convention and the placing of it in its proper context in the law of another state of the European Union.
- I therefore give leave limited to that issue, that is to say whether the judge correctly determined what was for present purposes the document instituting the proceedings; and, secondly, what follows from that as to his conclusion that there had been sufficient time for Mr Jurgens to arrange his defence. I do not grant permission on the second point that was sought to be ventilated, that is to say whether the judge was entitled to say that there were no special circumstances in this case entitling Mr Jurgens to an extension of time. That, it seems to me, was a matter for the judge's judegment, and he came to a conclusion that was not clearly wrong. Therefore this court, in my judgement, should not interfere.
- What I would suggest and I give leave for, if so advised, is that the ground of appeal and the skeleton argument be reviewed and re-served within 28 days, setting out the point now in issue and the implications of it. It seems to me that the point will require some reasonably sophisticated analysis of the German process to put in context the issue arising under Article 27(2). I am confident from other material that I have seen from him that Mr Jack, counsel for the appellant as he now is, is well qualified to assist the court in that respect.
- There is also before me an application to adduce fresh evidence. As I have explained to Mr Jack, that is not an application that is within my power to grant, given that it requires adversary argument. Mr Jack has, however, permission, if so advised, to renew such an application to the full court. He may or may not find that that is a matter, in view of the nature of the evidence, that can be resolved by agreement before the hearing, and certainly efforts must be made to do that, so that the time of the court can be saved.
Friday, 11th May 2001