Henry Alexander Brompton Gwyn-Jones v Richard William McDonald

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 17 January 2022
• Neutral Citation: [2022] IECA 5
• Docket Number: Court of Appeal Record No. 2020/205 Court of Appeal Record No. 2021/33 High Court Record No. 2019/16FJ
• Year: 2022
• Court: Court of Appeal (Ireland)

In the Matter of Regulation (EU) No. 1215/2012

and

Pursuant to Order 42A of the Rules of the Superior Courts (Jurisiction, Recognition and Enforcement of Judgments) 2017

and

In the Matter of a Judgment of the Sofia City Court, Republic of Bulgaria

Between

Henry Alexander Brompton Gwyn-Jones

Applicant/Appellant

and

Richard William McDonald

Respondent

In the Matter of Regulation (EU) No. 1215/2012

and

Pursuant to Order 42A of the Rules of the Superior Courts (Jurisiction, Recognition and Enforcement of Judgments) 2017

and

In the Matter of a Judgment of the Sofia City Court, Republic of Bulgaria

Between

Henry Alexander Brompton Gwyn-Jones

Applicant/Appellant

and

Richard William McDonald

Respondent

[2022] IECA 5

Costello J.

Whelan J.

Murray J.

Barniville J.

Court of Appeal Record No. 2020/205

High Court Record No. 2018/14 FJ

Court of Appeal Record No. 2021/33

High Court Record No. 2019/16FJ

THE COURT OF APPEAL

CIVIL

Stay – Enforcement – Costs – Appellant seeking a stay pending the lodgement of an appeal within the statutory time limit for leave to appeal to the Supreme Court and thereafter pending determination of the appeal by the Supreme Court – Whether the appellant should be awarded the costs of two motions that issued in the second appeal

Facts: The appellant, Mr Gwyn-Jones, described his principal application as being for ‘a stay pending the lodgement of an appeal within the statutory time limit for leave to appeal to the Supreme Court and thereafter pending determination of the appeal by the Supreme Court’. What he actually sought was an interim order restraining the enforcement of the two final judgments of the Bulgarian courts the subject of the respective actions. The appellant requested that the final approved version of the judgment in the second appeal incorporate reference to a procedural order of the second arbitral tribunal delivered following the delivery of the judgment. While it was accepted by the parties that the respondent, Mr McDonald, should obtain the costs of both appeals and of the hearings in the High Court, the appellant contended that he should be awarded the costs of two motions that issued in the second appeal – his motion to admit further evidence and the respondent’s motion to strike out the appeal.

Held by the Court of Appeal (Murray J) that in the particular circumstances the court should not lend its hand to any further suspension of the respondent’s rights as they had been determined to be, even for a potentially short period of time. Murray J held that to do so would be quite inconsistent with both the Okanade test (Okunade v Minister for Justice [2012] IESC 49), and the obligations of the court under European law. Regarding the appellant’s request that the final approved version of the judgment in the second appeal incorporate reference to a procedural order of the second arbitral tribunal delivered following the delivery of the judgment, Murray J saw no difficulty with doing that. Murray J held that the reference would appear in the approved judgment when issued.

Murray J held that while the appellant prevailed in each of the motions, neither assisted his position in the appeal itself and for that reason Murray J believed it appropriate that no order for costs should be made in respect of either motion. It was Murray J’s provisional view that the costs of the application for a stay followed the outcome, and would unless the appellant filed a written and reasoned objection to such an order within seven days of the date of the judgment, also be awarded to the respondent. Murray J held that, in the event that the appellant did file such an objection, the court would having considered same determine how it intended to proceed to address that objection, and would advise the parties accordingly.

Appeal dismissed.

NO REDACTION NEEDED

(Judgment No. 3)

JUDGMENT of Mr. Justice Murray delivered on the 17 ^th day of January 2022

1 . While these two appeals have not been consolidated, and indeed were heard before differently constituted courts, the applications now before each court present some common issues and were heard one after the other. That being so it has been decided to deliver a single judgment addressing the applications in both actions. Insofar as applicable to the first appeal (the principal judgment in which appears at [2021] IECA 206) Whelan J. and Costello J. are each in agreement with this judgment and the orders I propose and in respect of the second appeal ( [2021] IECA 303) Whelan J. and Barneville J. similarly agree with both this judgment and the proposed orders.

2 . The appellant describes his principal application as being for ‘ a stay pending the lodgement of an appeal within the statutory time limit for leave to appeal to the Supreme Court and thereafter pending determination of the appeal by the Supreme Court’. What he actually seeks is an interim order restraining the enforcement of the two final judgments of the Bulgarian courts the subject of the respective actions. Given that Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (‘ the Recast Regulation’) is intended to comprehensively regulate the recognition and enforcement of judgments of the courts of member states to which it applies, and given that at this point the respondent has the benefit of the two final judgments which he is, prima facie, entitled to execute in this jurisdiction in accordance with that Regulation, the jurisdiction to make the orders sought must appear in that instrument. The relevant provision enabling orders suspending enforcement is Article 44, the scope of which I addressed in my second judgment (at para. 51 and following).

3 . Both parties proceeded on the basis that the test for the grant of such relief is that described in Okunade v. Minister for Justice [2012] IESC 49, [2012] 3 IR 152, as applied to orders in the nature of an injunction pending appeal in C v. Minister for Justice and Equality [2016] IESC 48 at paras. 4.6–4.7; [2016] 2 IR 680 at p. 695. I will approach the matter on that basis, while noting — but without deciding — that this assumes that the test is a matter for national procedural law. That agreed test has two elements – the identification of arguable grounds of appeal, and the determination of whether the balance of justice leans in favour or against the grant of the order sought.

4 . The test posited in Okunade requires that before an interim order of the kind in issue here is granted, an applicant must establish that he has an arguable case (see para. 104 of the judgment of Clarke J. (as he then was)). The parties to this application accepted that this means that for the purposes of an application of the kind in issue here, the appellant has to establish arguable grounds of appeal (see C. v. Minister for Justice at para. 4.7). If the appellant cannot establish arguable grounds of appeal, his application for a suspensory order must fail, and the question of balancing the interests of justice as between the parties does not arise.

5 . It is less than usual for this court to refuse an application for a stay pending appeal to the Supreme Court on the basis that the applicant has not established arguable grounds of appeal. In this case it might be said that it would be surprising if the appellant had no arguable ground of appeal, given that there are now two detailed judgments of the High Court considering his applications, and two extensive judgments of this court referencing a large body of authority and considering all of the various issues presenting themselves in the case. Somewhere in the midst of all of that analysis, it might be said, there must be at least one arguable point. Were the position otherwise, it would hardly have been necessary to engage in the detailed discussion of principle contained in these decisions in the first place. If there is an arguable point, it might be said, the appellant should at least be allowed to seek leave from the Supreme Court to make it without suffering execution in the meantime.

6 . While all of this may have a superficial appeal, the respondent (who has now been seeking to have judgments of the Bulgarian courts issued in 2016 and 2017 enforced in this jurisdiction for over two years) argued that in fact no arguable grounds of appeal had been established. In a context in which the court must give effect to the obligations imposed by the Recast Regulation to enable swift recognition and enforcement of judgments of the courts of other Member States, and indeed given that the court is under an unusual and express obligation to do so ‘ without delay’ (Article 48), the respondent is entitled to have the grounds of appeal relied upon in support of a further suspension of enforcement examined with a view to determining if an arguable ground of appeal has in reality been identified. If this court concludes that such a ground has not been established then the test which the parties have agreed governs this application precludes the court from granting a stay.

7 . That said, this court should not easily conclude that an appellant has failed to establish arguable grounds of appeal for the purposes of an application of this kind. Apart from being properly conscious that it is evaluating its own judgment, the appellant has a right to seek leave from the Supreme Court to appeal decisions of this court and ideally it is that court which, in the course of considering an application for such leave, should determine arguability when the issue arises. However, there will be cases in which it is so clear that that an appellant does not enjoy an arguable appeal that it would be wrong to subject a respondent to an interim injunction for any period, no matter how short. This is such a case.

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