Highly unattractive: Court criticises complaints raised for the first time when resisting enforcement

The Commercial Court denied an application to resist enforcement and recognition of a French judgment on the basis of public policy. The court reiterated the exceptional nature of the public policy carve out in the Brussels Regulation (44/2001) particularly in circumstances where the grounds relied on by the applicant could have been raised in the foreign court itself.

Background

In the case of Dr Richard Barry Smith –v- Xavier Huertas [2015] EWCA 3745 (Comm), criminal proceedings were commenced against Mr Smith, a director of a French company which became insolvent and went into liquidation. Mr Smith was accused of fraudulent bankruptcy and the misappropriation and concealing of company property. He was convicted and unsuccessfully appealed on limited grounds to both the Court of Cassation in Paris and the European Court of Human Rights (ECtHR).

In March 2014, Mr Smith sought a declaration from the English court that the French judgment should not be recognised or enforced as it was contrary to public policy. He argued that:

• the French proceedings were contrary to Article 6.1 of the European Convention on Human Rights (ECHR) (right to a fair hearing within a reasonable time by an independent and impartial tribunal) and/or Article 6.3 ECHR (right to have the free assistance of an interpreter) and/or a breach of natural justice under English law; and
• the French courts were guilty of actual or apparent bias by not taking into account material facts and issues.

Decision

Mr Smith’s application was dismissed. The court rejected Mr Smith’s complaints, finding that a number of his complaints had already been considered and dismissed by French courts and/or the ECtHR. Where this was the case, it would be contrary to the express prohibition in the Brussels Regulation to review the substance of the French courts’ decisions. Further, where Mr Smith’s complaints had not previously been raised before the French courts or ECtHR, such complaints should have been pursued before these courts. The court held that it was highly unattractive for points which could have been raised in an appeal to the foreign judgment to be raised for the first time at the enforcement stage.

Comment

This decision demonstrates the court’s reluctance to interfere with the mutual trust placed in the legal systems of other member states and the difficulties of resisting enforcement based on arguments of public policy. It also emphasises the need for the exhaustion of remedies in the foreign jurisdiction before taking steps to challenge enforcement in another member state.

Although the provisions of the 44/2001 Brussels Regulation were considered by the court in this case (as proceedings were commenced prior to 10 January 2015), the articles referred to by the court remain unchanged in the Recast Brussels Regulation (1215/2012). It is very likely therefore that the same decision would have been reached had the updated regulation been considered.