Sporting Index Ltd v O'Shea

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 15 June 2015
• Neutral Citation: [2015] IEHC 407
• Docket Number: [2014 No. 20 FJ]
• Court: High Court
• Date: 15 June 2015

BETWEEN

SPORTING INDEX LIMITED

PLAINTIFF

AND

JOHN O'SHEA

DEFENDANT

[2015] IEHC 407

Mac Eochaidh J.

[2014 No. 20 FJ]

THE HIGH COURT

JUDICIAL REVIEW

Contract – Breach of contract – Enforceability of judgment of foreign court – European Council Regulation No. 44/2001 – S. 36 of the Gaming and Lotteries Act, 1956 – Public policy

Facts: Following the order of the Master of the High Court enforcing two judgments obtained by the plaintiff in the U.K. against the defendant for payment of gambling debts along with costs, the defendant now came to the Court against the impugned order of the Master of the High Court. The defendant alleged that the enforceability of the said judgments would be contrary to the s. 36 of the Gaming and Lotteries Act, 1956.

Mr. Justice Mac Eochaidh allowed the appeal of the defendant against recovery of gambling debt while refused in relation to the recovery of costs. The Court held that enforcement of betting had been expressly prohibited under Irish law and any recognition of a foreign law contrary to the manifest public policy of the State of Ireland would be against the intent and public good of the State. The Court observed that the observance of mutual trust and co-operation among the member nations while enforcing the foreign judgment could not override the clear and expressed public policy of a nation.

JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 15th day of June 2015.

Introduction

1 The defendant in these proceedings is appealing an order of the Master of the High Court deeming two judgments obtained in the County Court in London, England, against the defendant, enforceable in this jurisdiction.

2 The first judgment, dated the 30th August 2013, relates to the indebtedness of the defendant arising from regulated contracts in the form of spread bets on the outcome of specified sporting events. The second judgment, dated the 6th December 2013, relates to the plaintiff's costs of an application on the part of the defendant to set aside the first judgment.

Background

3 The defendant opened an online spread betting account with the plaintiff, a U.K. based company specialising in sports spread betting. The defendant made a bet on a Heineken Cup rugby match, the results of which did not turn out in his favour. The plaintiff permitted the betting account to become overdrawn resulting in the liability for gambling debts which were at issue in the U.K. proceedings.

4 The defendant submitted a limited defence to the plaintiff's claim in the County Court in London outlining the reckless nature of the plaintiff's conduct by permitting his account to go overdrawn where he did not request such facility. The defendant further contended that such proceedings should have been initiated in the Republic of Ireland as he was domiciled in Ireland during the U.K. proceedings. The plaintiff subsequently obtained judgment in the sum of €118,058.99 together with costs of the action summarily assessed in the sum of STG £17,500.00.

5 On the 20th May, 2014, pursuant to an ex parte application on the part of the plaintiff, the Master of the High Court made orders deeming both judgments enforceable in this State, together with the costs of the application. These orders were subsequently served on the defendant.

6 By notice of motion dated the 26th August, 2014, the defendant appealed those orders. The defendant's appeal came on for hearing before this Court on the 20th April, 2015.

Ground of Appeal

7 The parties agreed that the sole basis of the appeal is the contention that the decisions of the Master should be overturned on the ground that the first judgment arose from a gambling contract, the enforcement of which is prohibited pursuant to s. 36(2) of the Gaming and Lotteries Act, 1956.

8 Therefore, the question for this Court to consider is whether enforcement within this jurisdiction of the first and second judgments may be denied on the basis that such enforcement would be manifestly contrary to public policy in Ireland.

European Council Regulation No. 44/2001

9 The Regulation, which replaces the earlier 1968 Brussels Convention, has as its aim, inter alia, the harmonious administration of justice within the European Union. It was incorporated into Irish law under the Jurisdiction of Courts and Enforcement of Judgments (Amendments) Act 2012. The preamble provides that: -

‘(16) Mutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised automatically without the need for any procedure except in cases of dispute.

(17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid.

To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation.

(18) However, respect for the rights of the defence means that the defendant should be able to appeal in an adversarial procedure, against the declaration of enforceability, if he considers one of the grounds for non-enforcement to be present. Redress procedures should also be available to the claimant where his application for a declaration of enforceability has been rejected.’

10 The Defendant relies on articles 34(1) and 34(3) of Regulation no. 44/2001 as the basis for his assertion that the judgments should not be recognised in this jurisdiction.

11 Article 34 states that a judgment shall not be recognised:-

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

2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;

3. if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought;

4. if it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed.’

12 The plaintiff draws the Court's attention to use of the word ‘manifestly’, which was absent from the regulation's predecessor. Counsel for the plaintiff relies on Case C-681/13Diago Brands BV v....