Haier European Trading SRL v Mares Associates Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 01 June 2017
• Neutral Citation: [2017] IEHC 356
• Docket Number: [2015 No. 43 FJ]
• Court: High Court
• Date: 01 June 2017

[2017] IEHC 356

THE HIGH COURT

Baker J.

[2015 No. 43 FJ]

IN THE MATTER OF THE JURISDICTION OF COURTS AND ENFORCEMENT OF JUDGMENTS ACT 2012

AND

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLES 33, 38 AND 47 OF COUNCIL REGULATION NO. 44/2001/EC

AND

PURSUANT TO ORDER 42A OF THE RULES OF THE SUPERIOR COURTS, 1986 (AS AMENDED)

AND

IN THE MATTER OF A JUDGMENT OF THE TRIBUNAL OF VARESE OF THE REPUBLIC OF ITALY ENTITLED CASE NO. 3367/2001

BETWEEN

HAIER EUROPEAN TRADING SRL

PLAINTIFF/RESPONDENT

AND

MARES ASSOCIATES LIMITED

DEFENDANT/APPELLANT

Practice & Procedures – O.42A of the Rules of the Superior Courts, 1986 – Council Regulation 44/2001 – Recognition and enforcement of an Italian Court – Costs

Facts: The present proceedings concerned supplemental issues in relation to the form of order and payment of costs of the successful party. The substantive proceedings related to the recognition and enforcement of foreign judgment. The appellant filed an application for a stay on the order of the Master of the High Court for the enforcement of foreign judgment and the High Court granted the stay pending the determination of appeal in the foreign court. The appellant sought an order for the costs for its application for the stay, which was objected by the respondent.

Ms. Justice Baker held that the appellant should be awarded the costs for its stay application as it was successful in obtaining the desired relief. The Court observed that it was not appropriate to grant a stay on the award of costs as it would cause injustice to the appellant because it was not known as to when the appeal proceedings in the foreign court would commence. The Court held that the respondent was entitled to appeal the decision of the Court to the Court of Appeal. The Court granted a stay on the enforcement of foreign judgment in Ireland pending an appeal to the Court of Appeal and held that any further stay would be a matter for the Court of Appeal.

JUDGMENT of Ms. Justice Baker delivered on the 1st day of June, 2017.

1 This judgment is supplemental to a judgment delivered by me on the 23rd of February, 2017 [2017] IEHC 159, and deals with the form of the order and the question of costs, which unusually has given rise to an amount of disagreement between the parties.

2 The Master of the High Court made an order recognising a judgment of an Italian court and orders for the enforcement of the judgment in this jurisdiction. By the principal judgment I determined that enforcement be stayed pending disposal of the appeal of the respondent, Mares, against an order of the Italian court.

3 At para. 74 of that judgment I said as follows:

‘The balance of justice and a proportionate response to the respective prejudice likely to be suffered by each of the parties suggests that it is appropriate that a stay be granted on the enforcement of the judgment. Because it is not clear when the Italian court will conclude the process now before it, it is appropriate that I grant a stay on the enforcement of the judgment pending further order, and that there be liberty to apply in the light of any further order made by the court in Italy.’

4 The principal judgment was given pursuant to Article 46(1) of Regulation 44/2001, by which the enforcing court has a power to stay proceedings if an ordinary appeal has been lodged in the country of origin:

‘The court with which an appeal is lodged under Article 43 or Article 44 may, on the application of the party against whom enforcement is sought, stay the proceedings if an ordinary appeal has been lodged against the judgment in the Member State of origin….’ (Emphasis added)

5 The order which the Irish court, as the receiving court, makes therefore is an order by which it stays ‘the proceedings’, and such a stay may be granted only if an appeal has been lodged in the Member State of origin (Italy). The precondition was satisfied.

6 Looked at through this prism it seems that the appropriate order to be made under Article 46(1) is an order staying any further enforcement ‘proceedings’ in Ireland. Logically it would seem that the stay on enforcement would continue until the appeal of the order sought to be enforced has been concluded in Italy. At that point, the order in regard to which the enforcement declaration was made will be spent.

7 A number of judgments of the Court of England and Wales have been relied upon by the parties in support of their submissions as to the correct approach that I should now take to the form of the order and to the costs of the application before me.

8 In Banco Nacional de Comercio Exterior S.N.C. v. Empresa de Telecomunicaciones de Cuba S.A. [2007] EWHC 2322 Tomlinson J. held that the correct relief under Article 46(1) of the Regulation was a stay of the further prosecution of an appeal against recognition and enforcement of the foreign judgment, and that such a stay must logically be determined before the court determined the substance of the appeal. Tomlinson J. was invited to reconsider this position in DHL GBS (UK) Ltd. v. Fallimento Finmatica [2009] EWHC 291 but considered that he was not required to do so on the facts of the case.

9 Tomlinson J. was giving a decision in an appeal of an order made ex parte by which a decision of a court of Turin be registered as judgment of the English court. An appeal against the judgment of the Turin court was pending and Tomlinson J. noted that although the judgment debtor had sought a stay of enforcement of the Turin judgment under Article 46(1):

‘… what is in fact sought is a stay of these appeal proceedings i.e. the appeal against recognition and registration of the Turin judgment as a judgment of the English Court. Whilst the appeal is pending, enforcement is precluded, although not conservatory measures – see Article 47.3. In fact, Irwin J. granted a domestic freezing order against ETECSA at the same as directing registration and thus recognition of the judgment. In view of the nature of the jurisdiction conferred upon the court by Article 46.1 the application for a stay of these proceedings, i.e. of this appeal, should logically be considered first before any consideration of the question of whether the order of Irwin J. as...