QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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The London Steam-Ship Owners' Mutual Insurance Appellant / Respondent to Part 23 Application |
Claimant |
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The Kingdom of Spain Respondent / Applicant in Part 23 Application |
Defendant |
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M/T "PRESTIGE" |
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Timothy Young QC and Jamie Hamblen (instructed by Squire Patton Boggs (UK) LLP) for the Defendant
Hearing dates: 18th December 2020
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Crown Copyright ©
MR JUSTICE BUTCHER:
"The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:(a) the interpretation of the Treaties;(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union.
Where such a question is raised before any court or tribunal of a Member State that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court."
(1) that under Article 34(3) of Regulation (EC) 44/2001 - which I interpose is applicable given that legal proceedings were instituted before 10 January 2015, and which I will call "the Regulation" - the Spanish judgment is irreconcilable with a prior order of Hamblen J, dated 22 October 2013, as upheld on appeal, which enforced an arbitration award, dated 13 February 2013, pursuant to which The Club was held not liable to the Spanish State (which I will call "Spain"); and
(2) that under Article 34(1) of the Regulation, recognition of the Spanish judgment would entail a manifest breach of English public policy in respect of (a) the rule of res judicata and / or (b) human and fundamental rights.
"The Questions to be Referred:…
"The Questions:
"(1) When assessing whether a declaratory order given in Member State B is irreconcilable with an order for damages in Member State A, is it permissible to base a finding of irreconcilability on the reasoning of the judgment underlying the declaratory order or must the finding be based on the order alone?
"(2) Is a judgment which converts an arbitration award into a court order a judgment for the purposes of Article 34(3) of [the Regulation]?
"(3) If the Courts of Member State A are seised and a related dispute is later referred to arbitration resulting in mutually exclusive orders from the courts of Member State A and the arbitral tribunal, can recognition of the judgment of Member State A be refused in Member State B pursuant to Article 34(3) of [the Regulation], on the basis that the judgment is irreconcilable with a non Regulation judgment of Member State B converting the arbitration award into a court order and (thereby) falling under the arbitration exception in Article 1(2)(d)?
"(4) Is an arbitral award, which limits the compensation for damages to which the injured party is entitled by virtue of a final judgment in another Member State in legal proceedings instituted prior to such proceedings, itself incompatible with Article 19 TEU and [the Regulation], given that the award, with the authorization of a court, may be enforced in the same way as a judgment?
"(5) If a party ("Party A") is a 'beneficiary' of an insurance policy, or a person entitled to sue an insurer under a direct action in the capacity of an injured person, which contains an arbitration agreement, but is not a contracting party to the arbitration agreement or insurance policy, such that Party A can bring claims against the insurer in Member State A pursuant to Sections 2 or 3 of Chapter II of [the Regulation], would it be contrary to those Sections for the courts of Member State B to hold that Party A is nonetheless obliged to bring claims against the insurer in arbitration, applying the domestic conflict of laws rules of Member State B? If such a holding by a court of Member State B would be contrary to those Sections of [the Regulation] can the insurer rely on that judgment from the courts of Member State B to refuse recognition of the judgment granted in Member State A pursuant to Article 34(3) of [the Regulation]?
"(6) Can the recognition or enforcement of a judgment issued by the courts of Member State A be refused by the courts of Member State B as being manifestly contrary to public policy on the ground that a previous related judgment issued by Member State A violated the human rights of a party or a third party in breach of the ECHR, EU Charter and the ICCPR where the human rights complaints raised by that third party regarding the previous related judgment have already been examined by the ECtHR and determined to be inadmissible and manifestly ill-founded?"
"3. The provisions of Article 177 are absolutely binding on the national judge and, insofar as the second paragraph is concerned, enable him to refer a case to the Court of Justice for a preliminary ruling on interpretation or validity. This Article gives national courts the power and, where appropriate, imposes on them the obligation to refer a case for a preliminary ruling, as soon as the judge perceives, either of his own motion or at the request of the parties, that the litigation depends on a point referred to in the first paragraph of Article 177."4. It follows that national courts have the widest discretion in referring matters to the Court of Justice if they consider that a case pending before them raises questions involving interpretation or consideration of the validity of provisions of Community law, necessitating a decision on their part." (emphasis added)
"10. Secondly, it follows from the relationship between paragraphs 2 and 3 of Article 177 that the courts or tribunals referred to in paragraph 3 have the same discretion as any other national court or tribunal to ascertain whether a decision on a question of Community law is necessary to enable them to give judgment. Accordingly, those courts or tribunals are not obliged to refer to the Court of Justice a question concerning the interpretation of Community law raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case."11. If, however, those courts or tribunals consider that recourse to Community law is necessary to enable them to decide a case, Article 177 imposes an obligation on them to refer to the Court of Justice any question of interpretation which may arise." (emphasis added)
"The first question, as it seems to me, is whether a decision on some question of Community law is necessary in order to enable this court to give judgment in the appeal that is before it. In my judgment, that question must be answered in the affirmative. In order to give judgment in the present appeal, it is necessary to decide whether or not a party to an agreement prohibited by Article 85(1) is a person to whom Community law gives a right to be compensated in damages. Accordingly, the pre-condition to a reference is satisfied. Further, it is relevant, in my view, to note that the requirement in [what was then] Article 177 is that a decision on the question is necessary to enable this court to give judgment; not that a ruling from the Court of Justice is necessary to enable this court to reach a decision on the question. There is no double threshold of necessity to be surmounted before this court can seek a ruling from the Court of Justice. Once it is clear that the question has to be decided by this court, whether or not to seek the assistance of the Court of Justice is matter of discretion."
"In that regard, the court has consistently held that it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to be given, to determine, having regard to the particular features of each case, both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the court. A request for a preliminary ruling from a national court may be rejected only if it is quite obvious that the interpretation of Community law or the examination of the validity of a rule of Community law sought by that court bears no relation to the actual nature of the case or the subject matter of the action." (citations omitted)
"I understand the correct approach in principle of a national court (other than a final court of appeal) to be quite clear: if the facts have been found and the Community law issue is critical to the court's final decision, the appropriate course is ordinarily to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself. In considering whether it can with complete confidence resolve the issue itself the national court must be fully mindful of the differences between national and Community legislation, of the pitfalls which face a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the Court of Justice in construing Community instruments. If the national court has any real doubt, it should ordinarily refer."
(12.48 pm)