The documents which serve to start the clock running

The second of the three conditions, namely that the defendant was not served in time to arrange for his defence, gave rise to problems which are now reducing in significance. There is an inevitable tension between two irreconcilable principles. On the one hand, rules of service may be formal, but it may be said that their strict observance is necessary if the defendant is to be sure that proceedings have been instituted against him before a foreign court?²⁵ On the other hand, for a defendant to take a point about a technical irregularity in service may be unmeritorious in circumstances where he had perfect knowledge of the commencement of proceedings yet chose to store up a technical objection for deployment against enforcement. The resulting ambivalence is reflected in the jurisprudence.

The starting point is to identify what, precisely, needs to be served to start the clock running against the defendant. The answer is ‘the document which instituted the proceedings, or an equivalent document’. This language reflects the fact that different systems have their own paperwork for the institution of proceedings: it may be a writ; it may be a peremptory order for payment; it may be a statement of the claim which may or may not have the evidence attached to it. It will be for the court called upon to recognise the judgment to identify the document or documents which instituted the proceedings before the foreign court. In one case before the Italian courts^[1] it was found to be a peremptory order to pay combined with the claimant’s application for judgment. The European Court explained that the expression has an autonomous meaning, and it refers to the document (or documents, where they are intrinsically linked) which enables the defendant to understand the subject matter of, and the ground for, the claimant’s application, and of his right to assert a defence in a pending action or of his right to challenge an order to pay made ex parte where this was made by the original court.

The essential question for the recognising court is, therefore, to identify the document or documents which communicated that essential information to the defendant; and to address the question of the sufficiency and timeliness of their service by reference accordingly. Where a defendant complains that the documents in question should have been served in translation, and that service on him was not therefore made in a way which started the clock running, the true question is whether he had been served with the documents which allowed him to gather the nature of the claim and the cause of action against him; the fact that some evidence was served without the benefit of translation is not necessarily fatal to the allegation that he was served with the document instituting the proceedings.

The time which the defendant had to prevent default judgment

Assuming service to have been made in accordance with the law of the State whose document it was, the next question was whether the manner in which that service was made was sufficient to start the clock running against the defendant. In order to safeguard the rights of the defence, it is open to the court called upon to recognise the judgment to conclude, even if this is contrary to the view of the court of origin, that the method of service used was insufficient to start the clock running against the defendant as from the date of that service, and to draw the conclusion that he was therefore not served in time or in such a way as to arrange for his defence.

This follows from Debaecker & Plouvier v Bouwman,'¹⁰ in which the European Court stated that though there had been a form of substituted service of a Belgian document as permitted and provided for by Belgian law, a Dutch court was still entitled to find that the manner of service was such that time had not started to run against the defendant as from that moment.^[2] It was necessary to show that the defendant was served in such a way as to reasonably allow him time to prevent judgment being entered against him in default of his appearance; and the assessment of this time period is a matter of fact for the recognising court, unconstrained by the existence of time periods under the law of the adjudicating court.

Although the reasoning in the cases is technical, the principle is clear: the defendant must have been properly served according to the law of the adjudicating court but it is thereafter for the court called upon to recognise the judgment to decide for itself whether the defendant was served in such a way, and in sufficient time, as to reasonably allow him to take steps to defend himself. Even so, the time period is measured as one sufficient to prevent entry of a default judgment which, within Europe, must surely be a very short period. It does not mean sufficient for a leisurely or detailed assessment of the various options which the defendant may have available to him.

• [1] Abela v Baadarani [2013] UK.SC 44, [2013] 1 WLR 2043 may be thought to challenge this. 2 C-474/93 Firma Hengst Import BVv Campese [1995] ECR 1-2113. 3 A ‘decreto ingiuntivo'; cf C-551/15 Pula Parking doo v Tederahn EU:C:2017:193, [2017] ILPr 331 in which a similar-looking document, issued by a notary, was said by the national court to be an actual judgment (the European Court held that it was not). 4 C-14/07 Ingenieurbüro Michael Weiss & Partner GbR v Industrie- und Handelskammer Berlin [2008] ECR 1-3367. 5 C-14/07 Ingenieurbüro Michael Weiss & Partner GbR v Industrie- und Handelskammer Berlin [2008] ECR 1-3367.
• [2] 49/84,(1985] ECR 1779. 2 A German court took the same view of service of a French document by ‘remise an parquet', or pretended service on a person out of the jurisdiction by leaving the document with an officer of the French court for onward transmission: Re the Enforcement of a French Interlocutory Order [2001] ILPr 208. The decision of the Court of Justice in C-522/03 SA Scania Finance France v Rockinger Spezialfabrik für Anhängerkupplungen GmbH & Co [2005] ECR 1-8639 did not need to deal with the point. See also C-325/11 Alder v Orlowska, EU:C:2012:824. 3 166/80 Klomps v Michel [1981] ECR 1593. A period of five weeks between service and the issuing of judgment was held to be sufficient time in TSN Kunststoffrecycling GmbH v Jürgens [2000] EWCA Civ 11, [2002] 1 WLR 2459. 4 228/81 Pendy Plastic Products BF v Pluspunkt Handelsgesellschaft mbH [1982] ECR 2723. 5 166/80 Klomps v Michel [ 1981 ] ECR 1593. 6 A French document was to be served in accordance with French law: C-123/91 Minalmet GmbH v Brandéis Ltd[992] ECR 1-5661; C-305/88 Isabelle Lancray SA v Peters & Sickert A'G'[ 1990] ECR 1-2725.