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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Schefenacker v Horvat  EWHC 506 (Ch) (24 February 2020)
Cite as:  EWHC 506 (Ch)
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST
London. EC4A 1NL
B e f o r e :
|- and -|
Mr Jason Robinson (instructed by Mishcon de Reya LLP) for the Claimant/Respondent
Hearing date: 11 February 2020
Crown Copyright ©
Deputy Insolvency and Companies Court Judge Baister:
The application and the background
(a) the court had no jurisdiction to make the order it made;
(b) the application was made without notice, and the court was not informed of material facts and matters which should have led to the dismissal of the application;
(c) it was inappropriate to seek the order obtained in circumstances in which a statutory demand had been served on the Defendant.
In my view sensibly, Mr Lewis largely abandoned the non-disclosure point in the course of his submissions (I say "largely" because I do not think he abandoned the point in so far as it goes to jurisdiction and what the judge should have been told). There is no reason I can discern why a judgment creditor should not pursue more than one remedy at the same time with a view to enforcing or obtaining other relief based on a judgment, so that seems to me not to be a good ground for making the order or upsetting it. That leaves the jurisdiction point on which in fact both parties' submissions were focussed.
Scope of this Part
71.1 This Part contains rules which provide for a judgment debtor to be required to attend court to provide information, for the purpose of enabling a judgment creditor to enforce a judgment or order against him.
Order to attend court
71.2 (1) A judgment creditor may apply for an order requiring—(a) a judgment debtor; or
(b) if a judgment debtor is a company or other corporation, an officer of that body,
to attend court to provide information about—(i) the judgment debtor's means; or
(ii) any other matter about which information is needed to enforce a judgment or order.
(2) An application under paragraph (1)—(a) may be made without notice; and
(b) must be issued in the court or County Court hearing centre which made the judgment or order which it is sought to enforce, except that—(i) if the proceedings have since been transferred to a different court or hearing centre, it must be issued in that court; or(ii) subject to subparagraph (b)(i), if it is to enforce a judgment made in the County Court Money Claims Centre, it must be issued in accordance with section 2 of Practice Direction 70.
(3) The application notice must—(a) be in the form; and
(b) contain the information
required by Practice Direction 71.
(4) An application under paragraph (1) may be dealt with by a court officer without a hearing.
(5) If the application notice complies with paragraph (3), an order to attend court will be issued in the terms of paragraph (6).
(6) A person served with an order issued under this rule must—(a) attend court at the time and place specified in the order;
(b) when he does so, produce at court documents in his control which are described in the order; and
(c) answer on oath such questions as the court may require.
(7) An order under this rule will contain a notice in the following terms, or in terms to substantially the same effect—"If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized."
Scope of this Part and interpretation
70.1(1) This Part contains general rules about enforcement of judgments and orders.
(Rules about specific methods of enforcement are contained in Parts 71 to 73, 81, 83, 84 and 89 and Schedule 2 CCR Order 28.)
(2) In this Part and in Parts 71 to 73 -(a) 'judgment creditor' means a person who has obtained or is entitled to enforce a judgment or order;
(b) 'judgment debtor' means a person against whom a judgment or order was given or made;
(c) 'judgment or order' includes an award which the court has -(i) registered for enforcement;(ii) ordered to be enforced; or(iii) given permission to enforceas if it were a judgment or order of the court, and in relation to such an award, 'the court which made the judgment or order' means the court which registered the award or made such an order; and(d) 'judgment or order for the payment of money' includes a judgment or order for the payment of costs, but does not include a judgment or order for the payment of money into court.
Procedure for enforcing judgments under the Judgments Regulation
74.4A. A person seeking the enforcement of a judgment which is enforceable under the Judgments Regulation must, except in a case falling within article 43(3) of the Regulation (protective measures), provide the documents required by article 42 of the Regulation.
1.3 The court officer considering the application notice -
(1) may, in any appropriate case, refer it to a judge; and
(2) will refer it to a judge for consideration, if the judgment creditor requests the judgment debtor (or officer of the judgment debtor) to be questioned before a judge.
(3) The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, inter alia, by facilitating access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters. For the gradual establishment of such an area, the Union is to adopt measures relating to judicial cooperation in civil matters having cross-border implications, particularly when necessary for the proper functioning of the internal market.
(4) Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters, and to ensure rapid and simple recognition and enforcement of judgments given in a Member State, are essential.
(5) Such provisions fall within the area of judicial cooperation in civil matters within the meaning of Article 81 of the Treaty on the Functioning of the European Union (TFEU).
(6) In order to attain the objective of free circulation of judgments in civil and commercial matters, it is necessary and
appropriate that the rules governing jurisdiction and the recognition and enforcement of judgments be governed by a legal instrument of the Union which is binding and directly applicable.
(I was not taken to these but set them out to give something of the flavour of the Regulation.)
For the purposes of this Regulation:(a) 'judgment' means any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court.
Art 24 [under the heading Exclusive jurisdiction]
The following courts of a Member State shall have exclusive jurisdiction, regardless of the domicile of the parties:
(5) in proceedings concerned with the enforcement of judgments, the courts of the Member State in which the judgment has been or is to be enforced.
Art 36 [under the heading Recognition]
1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.
Art 39 [under the heading Enforcement]
A judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required.
Art 42 [under the same heading]
1. For the purposes of enforcement in a Member State of a judgment given in another Member State, the applicant shall provide the competent enforcement authority with:(a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and
(b) the certificate issued pursuant to Article 53, certifying that the judgment is enforceable and containing an extract of the judgment as well as, where appropriate, relevant information on the recoverable costs of the proceedings and the calculation of interest.
(a) The High Court has jurisdiction to make an order under CPR Part 71 in relation to a foreign judgment and that it had jurisdiction to do so in this case.
(b) It was permissible to apply without notice. To the extent that the Defendant may have been prejudiced by the order having been made without notice (I can find none) that has been remedied by reason of the matter having now been argued.
(c) There would appear to be no reason why the Claimant should be precluded from using CPR 71 after serving a statutory demand.
I shall therefore dismiss this application.