In Taylor-Carr v Howkins & Harrison LLP(1) the High Court held that the English courts have no power to extend the time for appealing against the registration of a foreign judgment under the EU Brussels Regulation (44/2001).
The underlying dispute related to fees allegedly owed by Mrs Taylor-Carr and her husband (the appellants) to estate agents Howkins & Harrison LLP following the sale of various properties in England. The estate agents brought proceedings in the French courts because, by that time, the appellants had moved to France. In September 2011, the estate agents obtained a judgment for €10,495.55 plus costs from the Court of Appeal in Pau.
By the time the estate agents came to enforce the French judgment against the appellants, they had returned to England. The estate agents therefore applied to have the French judgment registered for enforcement in England under the Regulation. Master Cook made a registration order on 11 September 2012 (the Registration Order). In October 2012, the estate agents sought to serve a bankruptcy petition on the appellants in England. The appellants contended that this was the first they had heard of the French judgment.
After unsuccessful attempts to serve the Registration Order personally on the appellants, the estate agents obtained permission to serve by first class post. They did so under cover of a letter dated 6 July 2013 which the appellants accepted they received on 9 July 2013. The appellants contended, however, that they were unable to do anything about the Registration Order because of their financial situation and because their son was in intensive care after a serious car accident.
There followed a series of attempts by the estate agents to enforce the French judgment against the appellants in England. Eventually, on March 17 2014 the appellants appealed against the registration order.
The Regulation allows judgments in EU member states to be enforced in other member states with minimal procedural steps. A judgment creditor wishing to enforce a judgment from another EU member state in England must apply without notice to register the judgment and, providing the formalities
have been complied with, the English courts must make an order declaring the judgment enforceable. A judgment debtor is not entitled to make any submissions at the registration stage, even if they know about the application for registration. A debtor may only resist the registration by way of appellant’s notice served not less than one month after the registration order was served on them. In practice, this somewhat disjointed procedure often makes the registration process more cumbersome than it needs to be.
As a result, Council Regulation (EU) 1215/2012 (the Recast Regulation) changes the process for registering and enforcing judgments in proceedings commenced on or after 10 January 2015. Under the Recast Regulation, provided the creditor has obtained a certificate from the court of origin, the foreign judgment will be enforceable in England as if it were an English judgment without further procedural steps. However, the debtor will still be entitled to apply for enforcement to be refused on certain limited grounds, which are much the same as the defences to enforcement under the Regulation
Given that the proceedings in Taylor-Carr were issued before 10 January 2015, the Regulation in original form applied.
Slade J was satisfied that the Registration Order had been served on the appellants by 10 June 2013. On that basis, the appellants had lodged their appeal against the Registration Order eight months out of time. Because the appeal had been brought outside the permitted one month period, Slade J considered that it must be dismissed unless
- a discretion to extend time under the Regulation could be identified, and
- she was satisfied that it was appropriate to exercise any such discretion in this case
Slade J considered a number of authorities including the European Court of Justice (ECJ) decisions in Hoffman v Krieg2 and Verdoliva v J.M. Van der Hoeven BV3 . These decisions, whilst relating to different issues, emphasised that time limits in the European instruments dealing with registration of foreign judgments were mandatory in nature.
On the other hand, Slade J also considered the English High Court decision of Citibank NA v Rafidain Bank and another4 , in which the court had held that a discretion to extend the time limit for appealing the registration of a foreign judgment did exist. However, Slade J concluded that the court had in that case reached its decision without considering the above mentioned ECJ authorities and, accordingly, gave it little weight.
Overall, Slade J considered that the approach in Hoffman and Verdoliva was to be preferred and followed. Accordingly, Slade J dismissed the appeal, holding that the time periods in Article 43.5 of the Regulation were mandatory and she had no discretion to grant an extension of time to appeal the Registration Order. Slade J added that, even if she had determined that she held such a discretion, she would not have exercised it in this case. The reasons for the appellants’ delay were not sufficiently exceptional, and the appeal was out of time by a very large margin.
Although the new regime under the Recast Regulation is now in force, the original Regulation will still apply to many cases for a number of years. The decision in Taylor-Carr brings welcome certainty on extensions of time for appealing registration orders under the Regulation.
However, it should be noted that Taylor-Carr involved an appeal out of time by some eight months for reasons, the court held, which were not sufficiently exceptional to warrant an extension. Therefore it might be that, whilst paying heed to the precedent created by Taylor-Carr, the English courts may in future listen somewhat more sympathetically to an appellant who misses the one month deadline by a smaller margin and/or for more compelling reasons