England and Wales Court of Appeal (Civil Division) Decisions

Maronier v Larmer [2002] EWCA Civ 774 (29th May, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
His Honour Judge Richard Seymour, QC
Deputy Master Chism

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th May 2002

Lord Phillips MR:

This is the judgment of the Court.

Introduction

1. Mr Maronier is a citizen of the Netherlands. He appeals against the decision of his Honour Judge Richard Seymour QC (sitting as a Judge at the Queen’s Bench Division). He dismissed an appeal against the Order of Deputy Master Chism made on 2^nd February 2001. By that Order the Deputy Master set aside registration of a judgment of the District Court of Rotterdam dated 30^th December 1999. By that judgment Mr Maronier was awarded damages assessed at 17,864 Netherlands Guilders, together with interest and costs. As we shall explain, the procedure followed in this case has gone awry, but it is accepted that this Court has jurisdiction to entertain the appeal.
2. This appeal raises an issue as to the manner of application of Article 27(1) of the 1968 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (‘the Brussels Convention’). With effect from 1 March 2002 a new regime for the enforcement of Community judgments was introduced under the Civil Jurisdiction and Judgments Order 2001. Under the transitional provisions that Order has no effect on this appeal. The Order does, however, render the issues raised on this appeal of limited general interest. That is all the more so as those issues arise in the context of facts which are quite extraordinary. Furthermore, the evidence before the Court leaves unclear a number of matters which are or might be material.

Events in Holland

3. These facts are derived piecemeal from a series of witness statements provided by the parties and by Dutch lawyers instructed on their behalf. Sources of information and belief are not always clear, but no point has been taken on the admissibility of this evidence.
4. Mr Larmer, the Respondent, is now aged 68. Since 1991 he has lived at an address in Kingston upon Thames. Between 1978 and 1991 he practised as a dentist in Rotterdam. One of his patients was the Appellant, Mr Maronier. In 1983 Mr Maronier complained to the Rotterdam Dental Association, which is a local branch of the Dutch Association of Dentists, about treatment that he had received from Mr Larmer. This complaint led, after an informal hearing, to Mr Larmer being fined the equivalent of about £1,600 and subsequently being ordered to pay the costs of remedial treatment by another dentist.
5. On 12 March 1984 Mr Maronier commenced proceedings in the District Court of Rotterdam in which he claimed damages in respect of the treatment that he had received, which he alleged was negligent, in the sum of 57,059 guilders. That is the equivalent of approximately £17,000. The proceedings were duly served on Mr Larmer in the Netherlands. Mr Larmer consulted the firm of de Bliek Linssen, which appears to have been a partnership of Mr de Bliek and Mr Linssen. Mr Linssen filed a defence on Mr Larmer’s behalf. There was then an exchange of pleadings and statements, ending with a statement filed by Mr Maronier on 2 May 1986.
6. A statement filed on behalf of Mr Maronier by Mr Jacobs, a lawyer whom he instructed later in the story, informs us that the proceedings brought against the Appellant were delayed due to the fact that the Appellant was working abroad for long periods and also suffered chronic health problems and that the proceedings in the District Court of Rotterdam were stayed. Surprisingly, Mr Jacobs omits to state why the proceedings were stayed. The reason is that on 20 May 1986 Mr Maronier went bankrupt. The bankruptcy was dissolved on 3 March 1987.
7. Before leaving for England in 1991, Mr Larmer left his address in England with the City Hall in Rotterdam and the Dutch Association of Dentists.
8. Nothing that is relevant then occurred until, in July 1998, Mr Maronier instructed a new firm of lawyers, of which Mr Jacobs was a partner, to pursue his claim. These lawyers, a firm called Kniestedt Jacobs & Duijs, wrote a letter dated 23 July 1998 to Mr Linssen, which was not put in evidence. Mr Linssen had by this time dissolved his partnership with Mr de Bliek. Mr Linssen’s reply dated the 24 July 1998 read:

“In the above mentioned matter we received your letter of the 23 July 1998.

This matter is unknown to me; the matter is not a current matter and does not show in our records. Apart from that, I have had no contact with the client for a number of years. According to my information, the client is presently living in England. I am sorry that I cannot inform you otherwise.”

9. What then occurred is described by Mr Jacobs as follows:

“When the proceedings were reactivated, the Defendant was represented before the District Court of Rotterdam by his solicitor, Mr J de Bliek. At the point the proceedings recommenced, Mr de Bliek declared himself to be ‘incapable’, which in Holland means a solicitor withdraws from a case due to problems encountered with his client. The withdrawal of Mr de Bliek from the proceedings was agreed by the District Court of Rotterdam as can be seen from the front page of the judgment dated the 30^th December 1999….

I believe, in this current matter, that Mr de Bliek withdrew from the case as he could not obtain any instructions from his client.”

10. The judgment to which Mr Jacobs refers records Mr Larmer as ‘residing in Rotterdam’ and adds: ‘attorney initially Mr J. de Bliek, presently not represented anymore in law’. That judgment awarded Mr Maronier 17,864 guilders together with ‘statutory interest’ and costs. Interest vastly exceeded the capital sum awarded, and the total amount of the judgment was 70,234 guilders.
11. Under Dutch procedure there was a right of appeal against this judgment. That right expired, however, 3 months after the judgment, at a time when Mr Larmer was not yet aware of the reactivation of the action, let alone of its outcome. It is common ground that the judgment is now ‘unassailable’ in Holland.

Matters not in evidence

12. The following matters cannot be deduced from the evidence before us:

i) what Mr Larmer could reasonably expect to happen to the proceedings once the action was stayed;

ii) what Mr Larmer could reasonably expect to happen to the proceedings when he left for England approximately 5 years after the last step had been taken in the action;

iii) whether Mr Larmer should have instructed de Bliek Linssen to continue to represent him in the action.

iv) what, if any, grounds were required for reactivating the action, after so long a delay;

v) what procedures had to be followed to reactivate the action;

vi) what duty, if any, either Mr Linssen or Mr de Bliek owed to Mr Larmer when the action was reactivated after 12 years of inactivity;

vii) what explanation Mr de Bliek advanced to the Court when obtaining permission to withdraw from the case;

viii) whether, as the judgment suggests, the Court believed that Mr Larmer was resident in Rotterdam;

ix) the basis upon which the rules of the Rotterdam District Court permitted the claimant to proceed to obtain a judgment in the absence of Mr Larmer;

x) the nature of the time limit placed on the exercise of the right of appeal and in particular whether the District Court had any discretion to extend the period within which to appeal if Mr Larmer was unaware of the judgment;

xi) how Mr Maronier obtained Mr Larmer’s address in Kingston upon Thames, which he succeeded in doing for the purpose of enforcement.

Provisions of the Brussels Convention

13. In addition to its application under the transitional provisions of the Civil Jurisdiction and Judgments Order 2001, the Brussels Convention remains applicable between Member States and Denmark. We shall refer to its effects in the present tense, despite its limited field of application.
14. The Brussels Convention has the force of law in the United Kingdom by virtue of the provisions of s.2 of the Civil Jurisdiction and Judgments Act 1982. The following provisions of the Convention are material:

“Article 26

A judgment given in a Contracting State shall be recognised in the other Contracting States without any special procedure being required.

….

Article 27

A judgment shall not be recognised:

1. if such recognition is contrary to public policy in the State in which recognition is sought;

2. where it was given in default of appearance, if the defendant was not 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;

….

Article 31

A judgment given in a Contracting State and enforceable in that State shall be enforced in another Contracting State when, on the application of any interested party, it has been declared enforceable there.

However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland, or in Northern Ireland when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.

Article 32

1. The application shall be submitted:

….

1. in England and Wales, to the High Court of Justice,….

….

Article 33

The procedure for making the application shall be governed by the law of the State in which enforcement is sought.

….

Article 34

The court applied to shall give its decision without delay; the party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.

The application may be refused only for one of the reasons specified in Articles 27 and 28.

Under no circumstances may the foreign judgment be reviewed as to its substance.

….

Article 36

If enforcement is authorised, the party against whom enforcement is sought may appeal against the decision within one month of service thereof.

….

Article 37

1. An appeal against the decision authorising enforcement shall be lodged in accordance with the rules governing procedure in contentious matters:

….

(a) in England and Wales, with the High Court of Justice,….

….

2. The judgment given on the appeal may be contested only:

….

in the United Kingdom, by a single further appeal on a point of law.”

The error of procedure

15. The procedure for recognition and enforcement of a judgment required by the Convention differs from that normal in this jurisdiction in the following respect. The application for enforcement is made to a Master without notice to the judgment debtor. Under normal procedure the judgment debtor would be entitled to apply to have an Order made in such circumstances set aside. The Convention requires, however, that he is not allowed to make any submissions on the application, but is to have a right to appeal. When Mr Maronier’s judgment was registered, the material provision of the Civil Procedure Rules, sc71.33, provided:

(1) An appeal under article 37 …must be made to a judge by application in accordance with CPR part 23.

16. The Order obtained by Mr Maronier, which was made by Master Trench on 14 July 2000, provided:

IT IS ORDERED that the Judgment dated the 30 December 1999 of the District Court of Rotterdam be registered in the Queen’s Bench Division of the High Court of Justice pursuant to the Civil Jurisdiction Act 1982.

AND IT IS FURTHER ORDERED that the said Bryan Larmer shall have liberty within two months after service upon them of Notice of Registration of the Judgment to appeal against such registration and execution shall not issue to enforce the Judgment until after the expiry of that period or until after any such appeal has been determined.

17. This Order was served on Mr Larmer on 10 August 2000 at his home in Kingston. This was the first notice that he received that the Rotterdam proceedings had been reactivated.
18. What Mr Larmer should have done, in accordance with the procedure set out above, was to appeal against this Order to a High Court Judge. Instead, those acting for Mr Larmer ‘appealed’ to Deputy Master Chism. He, despite protest from those representing Mr Maronier that he had no jurisdiction, entertained the appeal and allowed it. He did so on the ground that it was contrary to public policy in this country for Mr Maronier’s lawyers, in the circumstances described above, to revive his case without making any attempt to trace Mr Larmer in order to give notice of what they were doing.
19. The appropriate course in these circumstances is to disregard the hearing before Deputy Master Chism as a procedural aberration and treat the judgment of His Honour Judge Seymour as if it had been delivered pursuant to a first appeal.

The judgment below

20. His Honour Judge Seymour upheld the decision of Deputy Master Chism. He reviewed relevant European case precedent, which we consider below. He expressed his conclusion as follows:

“The right to an effective opportunity to defend oneself in civil as in criminal proceedings is thus, in my judgment, an important public policy in England and Wales as throughout the European Union.

On the facts of the present case, Mr Larmer has been denied that right. I am satisfied on the evidence that he personally is not in any way to blame for that state of affairs arising. A suggestion by Mr Pryce, that in relation to an action in which no steps had been taken by the claimant for five years before Mr Larmer left the Netherlands, he should have kept the District Court of Rotterdam notified of his address, or kept in touch with his Dutch lawyers, I regard as fanciful. Mr Larmer’s uncontradicted evidence is that he notified the City Hall in Rotterdam, and the Dutch Association of Dentists, of his address in England. In the result, I am satisfied that the recognition of the judgment of the District Court of Rotterdam is contrary to the public policy of England and Wales because the procedures of the Dutch court have made it possible for a very stale claim to be revived and pursued to judgment without the defendant ever being aware of what was going on and in circumstances in which he was not personally at fault, he having every reason to suppose that the claim had been abandoned.”

The issues

21. On behalf of Mr Maronier, Mr Ralls QC advanced two submissions:

i) The Judge had erred in carrying out a review of whether Mr Larmer had received a fair trial before the Rotterdam District Court;

ii) The Judge erred in his finding as to absence of fault. He should have found that, though Mr Larmer might not be personally at fault, his lawyers were at fault for withdrawing from representing him without informing him that the action was being revived. In such circumstances there was no justification for denying recognition of the judgment.

22. For Mr Larmer, Mr Foy QC contended that protection of the right to a fair trial, which was a requirement under Article 6 of the European Convention on Human Rights, was a requirement of public policy in England. If a defendant had not had a fair trial, then recognition of the judgment was contrary to public policy. As to the facts, Mr Foy submitted that the Judge had correctly concluded that no fault lay with Mr Larmer. The same was true of his lawyers. To conduct the trial when Mr Larmer was ignorance that it had been revived had violated his right to a fair trial under Article 6. Quite apart from this, a delay in pursuing the claim for 12 years was an independent violation of that Article.

Public policy and the right to a fair trial

23. Mr Ralls submitted forcefully that Holland, as a party to the Human Rights Convention, is committed to ensuring that Article 6 is observed. Dutch courts would automatically have regard for the requirements of Article 6. It was contrary to the scheme of the recognition and enforcement provisions of the Brussels Convention for one Member State to review or ‘second guess’ compliance with Article 6 by the courts of another Member State.
24. We sympathise with the broad thrust of Mr Ralls submissions. As the European Court observed in Solo Kleinmotoren GMBH v Boch (Case C-414/92) [1994] ECR I-2237 at paragraph 20, one of the fundamental objectives of the Brussels Convention is to ‘facilitate, to the greatest extent possible, the free movement of judgments by providing for a simple and rapid enforcement procedure’. This objective would be frustrated if courts of an enforcing State could be required to carry out a detailed review of whether the procedures that resulted in the judgment had complied with Article 6.
25. Court procedures differ from one State to another and the Courts of this Country should apply a strong presumption that the procedures of other signatories of the Human Rights Convention are compliant with Article 6. What we cannot accept is that we must apply an irrebuttable presumption that a judgment given in another Member State cannot have resulted from a violation of Article 6.
26. Where the State first seised of a dispute reaches a decision of substantive law, even if it is a decision on its own jurisdiction, the court of a State asked to enforce the resultant judgment cannot decline, on grounds of public policy, to enforce the decision on the ground that it infringes Community law. As the European Court observed in Regie Nationale des Usines Renault SA v Maxicar SPA (Case C-38/98) at paragraph 32: ‘It is for the national courts to ensure with equal diligence the protection of rights established in national law and rights conferred by Community law’. There is, however, a distinction in principle between a decision that resolves an issue of substantive law and a decision reached by a procedure that violates the fundamental human right to a fair trial.
27. The provisions of Article 27(2) expressly recognise the paramount importance of one aspect of the right to a fair trial. The trial process must ensure that the defendant has a fair chance to defend himself. The court must hear both parties: see Hendrikman v Magenta Druck (Case) C-78/95) [1997] QB 426 at p.441 paragraph 15 and cases there cited.
28. In Krombach v Bamberski (Case C-7/98) [2000] TLR 247the European Court considered an objection under Article 27(1) to the enforcement in Germany of an award of damages made, following the conviction of the defendant at a criminal trial in Paris. The Defendant declined to attend the relevant hearing in person, but sought to be legally represented at the hearing. He was not allowed to do so. He challenged enforcement of the subsequent award of damages on the ground that he had been denied a fair hearing in violation of his Article 6 rights. The Bundesgerichtshof sought a ruling on whether this was a matter to which it could legitimately have regard under Article 27(1). At paragraphs 25 and 26 of its judgment the Court observed that:

“The Court has consistently held that fundamental rights form an integral part of the general principles of law whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. In that regard, the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the ECHR) has particular significance.

The Court has thus expressly recognised the general principle of Community law that everyone is entitled to fair legal process, which is inspired by those fundamental rights.”

29. The Court went on to hold at paragraphs 42 to 44:

“…it follows from a line of case-law developed by the Court on the basis of the principles referred to in paragraphs 25 and 26 of the present judgment that observance of the right to a fair hearing is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the proceedings in question.

The Court has also held that, even though the Convention is intended to secure the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals, it is not permissible to achieve that aim by undermining the rights to a fair hearing.

It follows from the foregoing developments in the case-law that recourse to the public-policy clause must be regarded as being possible in exceptional cases where the guarantees laid down in the legislation of the State of origin and in the Convention itself have been insufficient to protect the defendant from a manifest breach of his right to defend himself before the court of origin, as recognised by the ECHR. ”

(We have omitted the authorities cited in support of these propositions)

30. It is thus clear that, in an exceptional case where the procedure of the court first seised has resulted in a defendant being prevented from putting his case to the court, Article 27(1) of the Brussels Convention can justify a refusal to enforce the resultant judgment on grounds of public policy.

Fault

31. Mr Ralls submitted that Mr Larmer’s predicament in this case was attributable to breach of duty on the part of de Bliek Linssen in failing to inform Mr Larmer that the Rotterdam proceedings had been reactivated. This submission was based on a complaint made by Mr Larmer in his first witness statement. He stated that he had been in correspondence with Mr Linssen about another matter in 1991. Thus Mr Linssen should have been aware of his English address. Alternatively he should have obtained this from the Rotterdam Town Hall. Mr Larmer alleged of the firm ‘Being lawyers acting on my behalf and being on the Court record in the matter they owed me a duty of care to undertake such enquiries’.
32. We would not conclude on the evidence before us that the two partners of de Bliek Linssen retained, or were under a duty to retain, Mr Larmer’s address over the 12 years that elapsed since the Rotterdam action was stayed, or that they were under a duty to seek out his address in order to inform him that the proceedings had been reactivated. We note that Mr Jacobs makes no such allegation. He simply comments that ‘it is clear that if Mr Larmer believes Mr de Bliek wrongly withdrew from the case the Defendant’s recourse lies in an action against Mr de Bliek for damages sustained by him as a result’
33. As we have noted above, Mr Jacobs’ understanding was that Mr de Bliek withdrew because he could not obtain any instructions from his client. He added:

“The matters referred to by Mr Larmer in relation to the lack of attention given to this matter by his own lawyers is not a matter which can concern the Claimant. When a solicitor withdraws from proceedings on behalf of a party in Holland, this is entirely at the risk of the party represented. Dutch law does not demand any action from the other party, neither from the Court. If no new solicitor is appointed on behalf of the party in question, the proceedings will continue without the party.”

CONCLUSIONS

34. The facts of this case have some similarities to those considered by the European Court in Debaecker v Bouwman (Case 49/84) [1986] 2 CMLR 400. That case concerned the application of Article 27(2) of the Brussels Convention. A tenant of business premises in Antwerp suddenly left leaving no forwarding address. The landlords issued a summons, claiming damages for breach of the lease, which was duly served on the tenant in accordance with Belgian procedural rules by being delivered to the Antwerp police headquarters. The tenant then wrote repudiating the lease and leaving a contact address. The landlords did not contact the tenant, but entered judgment in default, relying on the fact that service had been validly effected under Belgian law. The landlords sought to enforce their judgment in Holland. The Hoge Raad sought the decision of the European Court on a number of questions including whether, for the purposes of Article 27(2), the adequacy of service fell to be considered having regard to the facts existing at the time of service, or whether it was legitimate to have regard to subsequent events. In particular, the Court was asked whether the plaintiff could be required, as a result of events which took place after service, to take further steps to inform the defendant of the pending action or whether the fact that it was the defendant’s own fault that he was not served personally prevented the court from having regard to events after service was effected.
35. The Court held at p.422 that the Convention did not impose any obligation on the plaintiffs to take steps to alert the defendant to the proceedings once service had been effected. It continued, however:

“The failure to take such steps is in reality merely a factor which must be taken into account in order to establish whether service was effected in sufficient time.

Seen in that light, the fact that the plaintiff, after service, learns of the defendant’s new address does not compel him to take any further steps, but renders his subsequent behaviour important for the purpose of determining whether service was effected in sufficient time. By notifying the defendant at his new address, the plaintiff ensures that the court in which enforcement is sought cannot decide that the defendant’s change of address is an exceptional circumstance which prevents the service effected at his former address from being regarded as having been effected in sufficient time.”

36. There is much that we find surprising about the present case. We find it surprising that the procedure of the Rotterdam Court permitted Mr Maronier to reactivate an action that had been stayed for 12 years without requiring fresh service of an appropriate process to be effected on Mr Larmer. We find it surprising that full interest was awarded to Mr Maronier for the whole of the period of the delay, which appears to have been entirely of his own making. We find it surprising that, having regard to the fact that Mr Larmer was unaware that the action had been reactivated, the three month limit for appealing renders the judgment ‘unassailable’ without the court apparently having any discretion to reopen the matter. We are, however, acutely aware that, as we demonstrated early in this judgment, there are many matters which are unclear on the evidence and nothing that we have said should be taken as criticism of the Rotterdam District Court or the procedure that it was applying.
37. It may well be that in a normal case, a defendant to an action in Holland should continue to retain lawyers to act on his behalf in relation to proceedings which have been stayed. This is not, however, a normal case. We feel sure that a stay lasting 12 years of a simple claim for medical negligence must be quite extraordinary. On the basis of the facts before us, we are driven to the conclusion that Mr Larmer was denied a fair trial in Rotterdam because he was unaware that proceedings had been reactivated until even the time for an appeal had passed. It may well be that Dutch procedure did not require Mr Maronier to ensure that Mr Larmer received notice of the reactivation of the action. Mr Linssen’s letter of 24 July 1998 and Mr de Bliek’s withdrawal from representing Mr Larmer put Mr Maronier’s lawyers on notice that Mr Larmer was probably unaware of the fact that the action had been re-activated. Dutch procedure appears to have permitted the action to proceed without the presence of Mr Larmer or anyone representing him. The consequence is, nonetheless, that he has manifestly not received the fair trial that Article 6 of the Human Rights Convention required.
38. On the, happily, unusual facts of this case we are in no doubt that the Judge was correct to conclude that it would be contrary to the public policy of this country to enforce Mr Maronier’s judgment. Accordingly, this appeal will be dismissed.