England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th March 2007

Mr Justice Tugendhat :

1. Mr Ashdown ("the Defendant") appeals from the order of Master Fontaine dated 4 December 2006 ("the Order") by which she ordered, pursuant to the Civil Jurisdiction and Judgments Act 1982, that two judgments of the Courts of France in favour of the Claimant ("the Bank") be registered in this Court under Council Regulation (EC) No 44/2001 of 22^nd December 2000 on jurisdiction and the recognition and enforcement of judgment in civil and commercial matters ("the Judgments Regulation").
2. As described in para 1 of the Order the judgments are:

"The judgment dated 6 April 2004 of the Appeal Court of Douai in the Republic of France whereby it was adjudged that: 1.1 the Defendant was responsible for the prejudices suffered by the Claimant;

1.2 the Defendant was ordered to pay the Claimant €212,593.97 and

1.3 the Defendant was ordered to pay the Claimant's legal fees

The order of the Supreme Court of Appeal in France on 4 November 2004 whereby the Defendant … was ordered to pay a further €2,000 to the Claimant …"

3. There are two grounds of appeal, one in respect of each judgment. As to the judgment of 6 April, it is submitted that the Order does not correctly state what the French court decided, in that the French Court did not order the Defendant to pay €212,593.97, and that it made no order to that effect enforceable in France. As to the 4 November judgment it is submitted that the Master had no jurisdiction to make the Order for the simple reason that the Application Notice dated 9 November 2006 referred to the 6 April judgment only, but not to the 4 November judgment. The ground relied on in relation to the 4 November judgment was added by amendment for which I gave permission at the hearing. The application for permission was not opposed.
4. The issue on the 4 November judgment can be disposed of shortly. Mr Palmer for the Bank submits that while the Application Notice referred only to the one judgment, the evidence in support refers to both. That evidence is a witness statement of Mr Bennett dated 9 November 2006.
5. The relevant rule is CPR 74. CPR 74.3 states that that section of the CPR provides rules about applications under the Judgments Regulation, and that:

"(2) Applications:

a) must be made to the High Court; and

b) may be made without notice"

6. CPR 74.4 provides for the evidence that must be submitted in support of an application. It includes a requirement that the judgment, and a translation, must be exhibited, together with a statement of, amongst other matters, the grounds on which the judgment creditor is entitle to enforce the judgment (74.4(2)(c)).
7. In my judgment, the rules do not require the application to be in any particular form, other than as required by CPR 74.4. The 4 November judgment is referred to in the evidence submitted pursuant to CPR 74.4. That counts as an application. There is no merit in the sole ground of appeal relied on in relation to the 4 November judgment. On that point the appeal will be dismissed.
8. The position in relation to the 6 April judgment is more complicated. The Judgment Regulation, Art 38 provides:

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

9. Mr Datta submits, correctly, that it is a jurisdictional requirement that the judgment to be enforced in the other Member State (here the UK) shall be enforceable in the Member State in which it is given (here France). See Coursier v Fortis Case C-267/97 [1999] ECR I-2543 para 23, where the ECJ said (of the similar provision in Art 31 of the Brussels Convention) that "the enforceability of a decision in the State of origin is a precondition for its enforcement in the State in which enforcement is sought". In that case the creditor had been the subject of insolvency proceedings in which the right of creditors to bring individual proceedings was limited.
10. Mr Datta's submission is that the 6 April judgment was not enforceable in France, and so cannot be enforced in this jurisdiction.
11. The evidence before the Master included the witness state of Mr Bennett, which itself includes a paragraph in terms identical to para 1 of the Order. The translation of the French judgment exhibited includes the following conclusion:

"FOR THESE REASONS THE COURT

…

Declares that Clive Ashdown alone is responsible for the prejudice suffered by [the Bank]

Fixes the amount payable to [the Bank] by Clive Ashdown at €212,593.97

Condemns Clive Ashdown to pay the plaintiff's legal fees"

12. Also exhibited is a letter dated 28 July 2006 from French lawyers representing the Bank which includes the following:

"… you will find enclosed

the judgment …. dated 6.04.2004 …

This judgment condemned Mr Ashdown to pay to [the Bank] a sum of € 212 593,97.

The judgment is enforceable".

13. No criticism can be made of the Master for her making the Order she did make in these circumstances.
14. CPR 74.8 provides:

"(1) An appeal against the granting or the refusal of registration under the 1982 Act or the Judgments Regulation must be made in accordance with Part 52, subject to the following provisions of this rule.

(2) Permission is not required –

(a) to appeal; or

(b) to put in evidence."

15. The Defendant has appealed as of right, and has put in evidence in the form of a witness statement of Nitin Khandhia of his solicitors dated 9 February 2007.
16. Exhibited to the witness statement of 9 February is a written advice from Maitre Pierre-Gilles Wogue of the French law firm Salans. He concludes:

"We believe that the … decision dated 6^th April 2004 is not, under French law, enforceable against Mr Ashdown namely because:

it only fixed the precise extent of [the Bank's] claim and did not condemn Mr Ashdown to pay any sum of money

[the Bank's] claim did not arise after the opening of the insolvency proceedings"

17. The basis of this conclusion is a review of French insolvency law, the principles of which, he said, the Douai Court of Appeal were applying.
18. There is no evidence in response to this from the Bank. Mr Palmer appeared without his instructing solicitors and without having submitted a Skeleton Argument. He said he had expected some instructions as to the effect in French law of the 6 April judgment, but he had none. He submitted that the documents referred to above show that there is a dispute between French lawyers which cannot be resolved without further evidence. He submits that I should remit the matter to the Master, but he can identify no provision of the rule that contemplates that course.
19. Mr Datta submits that if there is a need to resolve a dispute of fact, then the appellate court should hold a rehearing pursuant to CPR 52.11(1) (b). If that is right, then Mr Palmer submits that I should order that there be oral evidence pursuant to CPR 52.11(2)(a). But Mr Datta submits that there is no real dispute here to be resolved.
20. The scheme of CPR 74 appears to envisage that any substantive dispute that may arise shall be determined on appeal under CPR 52, and not before the Master. But before I need decide whether that view is correct or not, I must first consider whether there is really a dispute between French lawyers.
21. Mr Datta submits that it is enough to look at the documents exhibited pursuant to CPR 74.4 to see that the witness statement of Mr Bennett and the Order are mistaken. It is, of course, to be noted that the words used in the letter of 28 July 2006 do not correspond to the words used in the English translation of the 6 April judgment. The letter uses the words 'condemned' in relation to the €212,593, whereas the judgment uses the word 'fixes' in relation to the €212,593. The judgment in translation does use the word 'condemns', but it does so in relation to the payment of the Bank's legal fees. And in the section of the judgment headed Analysis there is the paragraph:

"In accordance with articles L 622-32, L 621-409 and L 621-41 of the French Commercial Code, the request made by the creditor [the Bank] to recognise and fix the amount of the debt is admissible".

22. Maitre Wogue writes that L 621-41 states that all pending lawsuits aimed at obtaining payment by the debtor are suspended by the judgment opening the insolvency proceedings. Such pending lawsuits can be carried on for the sole purpose of determining the amount of the claim due to the creditor.
23. Reference to the French text of the judgment of 6 April shows that it concludes with the following:

"PAR CES MOTIFS LA COUR…

DECLARE Clive Ashdown seul responsible du préjudice subi par [the Bank]

FIXE à 212 593,97 euros le montant de la créance de [the Bank] à l'encontre de Clive Ashdown…

Condamne Clive Ashdown aux frais et dépens de l'action civile".

24. As a matter of translation or interpretation, it is difficult to see why, given the text of the judgment, it is stated in the letter of 28 July that this judgment "condemned Mr Ashdown to pay to [the Bank] a sum of € 212 593,97".
25. The English word 'condemn' is not a term of art in civil law in this context. It does not, of itself, assist the court in deciding whether the judgment in relation to the € 212 593,97 was enforceable in France or not.
26. In these circumstances I accept Mr Datta's submission that there is not a dispute between French lawyers. The Bank's lawyers have used an expression ('condemns') in relation to the debt which does not appear to be justified by the text of the judgment, whether in the original French or in the translation into English. The statement that that "the judgment is enforceable" is not explained. The French lawyers consulted by the Defendant have stated that in their opinion the judgment of 6 April is not enforceable in France, and an explanation is given. That has not been contradicted or explained by the Bank. It is accepted that the opinion of Maitre Wogue was made available to those representing the Bank in good time before this hearing.
27. In those circumstances the Bank has not shown that the condition for enforcement in England under Art 38 of the Judgments Regulation is satisfied.
28. It follows that the appeal is allowed and the Order is set aside in so far as it relates to the judgment of 6 April, but it stands in relation to the judgment of 4 November.