Maronier v Larmer
| Jurisdiction | England & Wales |
| Judgment Date | 29 May 2002 |
| Neutral Citation | [2002] EWCA Civ 774 |
| Docket Number | Case No: A2/2001/1263 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 May 2002 |
[2002] EWCA Civ 774
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
His Honour Judge Richard Seymour, QC
Deputy Master Chism
Lord Phillips, Master of the Rolls
Lord Justice Walker and
Lord Justice Clarke
Case No: A2/2001/1263
Peter Ralls, QC and Gary Pryce (instructed by Howard Kennedy for the Appellant)
John Foy, QC and Laura Elfield (instructed by Bartlett Gooding & Weelen for the Respondent)
Lord Phillips MR:
This is the judgment of the Court.
Introduction
Mr Maronier is a citizen of the Netherlands. He appeals against the decision of his Honour Judge Richard Seymour QC (sitting as a Judge at the Queen's Bench Division). He dismissed an appeal against the Order of Deputy Master Chism made on 2 nd February 2001. By that Order the Deputy Master set aside registration of a judgment of the District Court of Rotterdam dated 30 th December 1999. By that judgment Mr Maronier was awarded damages assessed at 17,864 Netherlands Guilders, together with interest and costs. As we shall explain, the procedure followed in this case has gone awry, but it is accepted that this Court has jurisdiction to entertain the appeal.
This appeal raises an issue as to the manner of application of Article 27(1) of the 1968 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters ('the Brussels Convention'). With effect from 1 March 2002 a new regime for the enforcement of Community judgments was introduced under the Civil Jurisdiction and Judgments Order 2001. Under the transitional provisions that Order has no effect on this appeal. The Order does, however, render the issues raised on this appeal of limited general interest. That is all the more so as those issues arise in the context of facts which are quite extraordinary. Furthermore, the evidence before the Court leaves unclear a number of matters which are or might be material.
Events in Holland
These facts are derived piecemeal from a series of witness statements provided by the parties and by Dutch lawyers instructed on their behalf. Sources of information and belief are not always clear, but no point has been taken on the admissibility of this evidence.
Mr Larmer, the Respondent, is now aged 68. Since 1991 he has lived at an address in Kingston upon Thames. Between 1978 and 1991 he practised as a dentist in Rotterdam. One of his patients was the Appellant, Mr Maronier. In 1983 Mr Maronier complained to the Rotterdam Dental Association, which is a local branch of the Dutch Association of Dentists, about treatment that he had received from Mr Larmer. This complaint led, after an informal hearing, to Mr Larmer being fined the equivalent of about £1,600 and subsequently being ordered to pay the costs of remedial treatment by another dentist.
On 12 March 1984 Mr Maronier commenced proceedings in the District Court of Rotterdam in which he claimed damages in respect of the treatment that he had received, which he alleged was negligent, in the sum of 57,059 guilders. That is the equivalent of approximately £17,000. The proceedings were duly served on Mr Larmer in the Netherlands. Mr Larmer consulted the firm of de Bliek Linssen, which appears to have been a partnership of Mr de Bliek and Mr Linssen. Mr Linssen filed a defence on Mr Larmer's behalf. There was then an exchange of pleadings and statements, ending with a statement filed by Mr Maronier on 2 May 1986.
A statement filed on behalf of Mr Maronier by Mr Jacobs, a lawyer whom he instructed later in the story, informs us that the proceedings brought against the Appellant were delayed due to the fact that the Appellant was working abroad for long periods and also suffered chronic health problems and that the proceedings in the District Court of Rotterdam were stayed. Surprisingly, Mr Jacobs omits to state why the proceedings were stayed. The reason is that on 20 May 1986 Mr Maronier went bankrupt. The bankruptcy was dissolved on 3 March 1987.
Before leaving for England in 1991, Mr Larmer left his address in England with the City Hall in Rotterdam and the Dutch Association of Dentists.
Nothing that is relevant then occurred until, in July 1998, Mr Maronier instructed a new firm of lawyers, of which Mr Jacobs was a partner, to pursue his claim. These lawyers, a firm called Kniestedt Jacobs & Duijs, wrote a letter dated 23 July 1998 to Mr Linssen, which was not put in evidence. Mr Linssen had by this time dissolved his partnership with Mr de Bliek. Mr Linssen's reply dated the 24 July 1998 read:
"In the above mentioned matter we received your letter of the 23 July 1998.
This matter is unknown to me; the matter is not a current matter and does not show in our records. Apart from that, I have had no contact with the client for a number of years. According to my information, the client is presently living in England. I am sorry that I cannot inform you otherwise."
What then occurred is described by Mr Jacobs as follows:
"When the proceedings were reactivated, the Defendant was represented before the District Court of Rotterdam by his solicitor, Mr J de Bliek. At the point the proceedings recommenced, Mr de Bliek declared himself to be 'incapable', which in Holland means a solicitor withdraws from a case due to problems encountered with his client. The withdrawal of Mr de Bliek from the proceedings was agreed by the District Court of Rotterdam as can be seen from the front page of the judgment dated the 30 th December 1999….
I believe, in this current matter, that Mr de Bliek withdrew from the case as he could not obtain any instructions from his client."
The judgment to which Mr Jacobs refers records Mr Larmer as 'residing in Rotterdam' and adds: 'attorney initially Mr J. de Bliek, presently not represented anymore in law'. That judgment awarded Mr Maronier 17,864 guilders together with 'statutory interest' and costs. Interest vastly exceeded the capital sum awarded, and the total amount of the judgment was 70,234 guilders.
Under Dutch procedure there was a right of appeal against this judgment. That right expired, however, 3 months after the judgment, at a time when Mr Larmer was not yet aware of the reactivation of the action, let alone of its outcome. It is common ground that the judgment is now 'unassailable' in Holland.
Matters not in evidence
The following matters cannot be deduced from the evidence before us:
i) what Mr Larmer could reasonably expect to happen to the proceedings once the action was stayed;
ii) what Mr Larmer could reasonably expect to happen to the proceedings when he left for England approximately 5 years after the last step had been taken in the action;
iii) whether Mr Larmer should have instructed de Bliek Linssen to continue to represent him in the action.
iv) what, if any, grounds were required for reactivating the action, after so long a delay;
v) what procedures had to be followed to reactivate the action;
vi) what duty, if any, either Mr Linssen or Mr de Bliek owed to Mr Larmer when the action was reactivated after 12 years of inactivity;
vii) what explanation Mr de Bliek advanced to the Court when obtaining permission to withdraw from the case;
viii) whether, as the judgment suggests, the Court believed that Mr Larmer was resident in Rotterdam;
ix) the basis upon which the rules of the Rotterdam District Court permitted the claimant to proceed to obtain a judgment in the absence of Mr Larmer;
x) the nature of the time limit placed on the exercise of the right of appeal and in particular whether the District Court had any discretion to extend the period within which to appeal if Mr Larmer was unaware of the judgment;
xi) how Mr Maronier obtained Mr Larmer's address in Kingston upon Thames, which he succeeded in doing for the purpose of enforcement.
Provisions of the Brussels Convention
In addition to its application under the transitional provisions of the Civil Jurisdiction and Judgments Order 2001, the Brussels Convention remains applicable between Member States and Denmark. We shall refer to its effects in the present tense, despite its limited field of application.
The Brussels Convention has the force of law in the United Kingdom by virtue of the provisions of s.2 of the Civil Jurisdiction and Judgments Act 1982. The following provisions of the Convention are material:
"Article 26
A judgment given in a Contracting State shall be recognised in the other Contracting States without any special procedure being required.
….
Article 27
A judgment shall not be recognised:
1. if such recognition is contrary to public policy in the State in which recognition is sought;
2. where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence;
….
Article 31
A judgment given in a Contracting State and enforceable in that State shall be enforced in another Contracting State when, on the application of any interested party, it has been declared enforceable there.
However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland, or in Northern Ireland when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.
Article 32
1. The application shall be submitted:
….
1. in England and Wales, to the High Court of Justice,….
….
Article 33
The procedure for making the application shall be governed by the law of the State...
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