Kingdom of Spain v London Steam-Ship Owners’ Mutual Insurance Association Ltd
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Teare |
| Judgment Date | 29 January 2020 |
| Neutral Citation | [2020] EWHC 142 (Comm) |
| Docket Number | Case No: CL-2019-000518 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 29 January 2020 |
[2020] EWHC 142 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION COMMERCIAL COURT
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MASTER COOK
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Teare
Case No: CL-2019-000518
Lionel Persey QC, Michelle Butler, Koye Akoni and Jamie Hamblen (instructed by Squire Patton Boggs) for the Respondent
Christopher Hancock QC and Alexander Thompson (instructed by Ince Gordon Dodds LLP) for the Appellant
Hearing date: 24 January 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is a Case Management Conference (“CMC”) in an appeal brought by the London Steam-ship Owners' Mutual Insurance Association Limited (“the Club”) from an order of Master Cook pursuant to which a Spanish judgment was registered. The Kingdom of Spain (“Spain”) had obtained the registration order against the Club and is therefore the respondent to this appeal. The Spanish judgment concerned liability for the pollution damage caused when the vessel PRESTIGE broke in two off the coast of Spain in 2002.
The parties have been in dispute about liability for many years. Criminal proceedings were brought against the master of PRESTIGE in Spain in 2002 and, after the conclusion of the investigative stage of the proceedings, civil proceedings were brought against the master, the Owners of PRESTIGE and the Club, as liability insurer of the Owners, in 2010. (I am told that in addition to Spain there are some 264 other claimants.) In 2012 the Club commenced arbitration proceedings in London against Spain and in February 2013 obtained an award from the sole arbitrator Mr. Alistair Schaff QC which declared that, as a result of the “pay to be paid” clause in the policy the Club had no liability to Spain. In this court Spain challenged the jurisdiction of the arbitrator but the court (Hamblen J. as he then was) held in 2013 that the arbitrator had jurisdiction. Later that year the court in La Coruna dismissed the civil claim against the master, Owners and Club but convicted the master of the crime of disobeying orders by the Spanish authorities to accept a tow of the vessel. In 2015 the English Court of Appeal upheld the decision of Hamblen J. In 2016 the Spanish Supreme Court reversed the decision of the court in La Coruna and held that the master had been seriously negligent and that the Owners and Club were liable for the damage caused. In execution proceedings in Spain, the court in La Coruna declared the Spanish State entitled to enforce a claim up to approximately €2.355 billion against the defendants in the Spanish proceedings and declared the master, Owners and the Club liable in respect of the claims, although subject (in the case of the Club) to a global limit of liability in the sum of approximately €855 million.
Thus the Club has an arbitration award in its favour but Spain has a judgment of the Spanish Supreme Court in its favour. Spain obtained an order from Master Cook pursuant to which the Spanish judgment was registered so that it could be enforced here against the Club. The Club seeks to appeal from that order. One of the grounds on which it seeks to appeal is that the Spanish judgment is irreconcilable with the judgment of Hamblen J. and the Court of Appeal (Article 34.3 of the Brussels Regulation). Another ground is that recognition of England is contrary to the public policy of England (Article 34.1).
That very short account of a long history of litigation and arbitration in this case is sufficient to show that this is a somewhat striking case. Spain is seeking to enforce a decision of the Spanish Supreme Court in England in circumstances where the English court has held that the arbitrator, who found that the Club had no liability to Spain, had jurisdiction to make an award against Spain. It is not surprising that the Club has launched a major appeal against registration of the Spanish judgment in England. Equally, it is not surprising that Spain wishes to oppose the appeal.
On this CMC disclosure is sought by the Club. Spain resists disclosure on the grounds that there is nothing in the CPR which requires disclosure on an appeal and that in any event the making of an order for disclosure would be inconsistent with the policy of the Brussels Regulation which seeks to provide for the rapid and simple recognition and enforcement of a judgment issued in a member state. The dispute as to disclosure is one of importance such that, although this was a CMC, I did not consider it wise to give a ruling immediately after the oral argument.
Disclosure
It is common ground, having regard to the fact that the Spanish proceedings were commenced prior to 10 January 2015, that the relevant Brussels Regulation is Brussels 1 (as opposed to Brussels Recast) and that the applicable procedural rules are those in the 2014 White Book, namely, CPR 74.8.
CPR 74.8 provides that an appeal pursuant to the Brussels Regulation must be made in accordance with CPR Part 52, save that permission to appeal or put in evidence is not required.
CPR Part 52 makes no express provision for disclosure on an appeal. However, counsel for the Club relied upon CPR Part 52.20(1) which provides that:
“In relation to an appeal the appeal court has all the powers of the lower court.”
Counsel submitted that since the lower court has power to order disclosure the appeal court must have the same power. Counsel for Spain did not accept this submission and said that CPR 52.20(1) had nothing to do with an appeal under the Brussels regulation. However, CPR 74.8 is expressly concerned with such appeals and expressly states that CPR 52 applies to such appeals (except where provision is made to the contrary). Counsel for Spain also said that CPR Part 52.20(2) indicated the types of power the appeal court had and they were not relevant to an appeal under the regulation. But the powers there listed appear to be the powers of the court after it has determined the appeal and do not limit the powers conferred upon the appeal court by CPR Part 52.20(1). The question therefore is whether CPR Part 52.20(1) confers power upon the appeal court to order disclosure.
A lower court has power to order disclosure where there is a claim; see CPR Part 31.1(2). There is no reason why a claim for registration of a foreign judgment should not be regarded as a claim. The circumstances in which the master dealing with such a claim might wish to order disclosure will be rare but I do not see why the master would not have such power were it, unusually, appropriate. If so the court hearing the appeal would have the same power pursuant to CPR 52.20(1).
I was not referred to any authority in which an appeal court had ordered disclosure but Disclosure 5 th. ed. by Mathews and Malek states that that CPR 52.20(1) (or rather its predecessor CPR 52.10(1)) does provide the necessary power. Further the editors referred to one (or possibly two) cases in which the appeal court dismissed an application for disclosure for the purposes of a pending appeal on the grounds that the documents sought were not relevant to the issues on the appeal. I therefore accept that the court hearing an appeal has power to order disclosure on an appeal and that, since CPR 74.8 incorporates CPR 52, a court hearing an appeal from an order registering a foreign judgment has such power.
That said, there will be few cases where it will be appropriate to order disclosure. First, the grounds for appealing against a registration order are limited to cases where recognition is manifestly contrary to public policy, where the defendant had not been served with the proceedings and where recognition was irreconcilable with another judgment; see article 34 of the Regulation. There will rarely be a need for disclosure in such cases. Second, the primary means by which...
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...normal course an appeal court may make an order for specific disclosure that a lower court might make: Kingdom of Spain v London Steam-Ship Owners' Mutual Insurance Association Ltd [2020] 1 WLR 1538 at §§10–11. The general test for specific disclosure is that disclosure must be “necessary ......