Appeal against order that judgment be registered for enforcement

The losing or disappointed party may appeal against the order made or not made after the first stage of the procedure. Though this does also in theory mean that the applicant for registration may appeal against a refusal to make the order applied for, the chances that the applicant will be in this position are so small that, for the purposes of exposition, it can be ignored; it is assumed that the appeal is brought by the party against whom enforcement has been ordered.

Non-parties do not have a right to appeal the order, even if they have an interest in the judgment, if they had not formally appeared in the proceedings. To English ears, the nomenclature of appealing against an order made in without notice proceedings, to the court which made the order in the first place, is a little odd, but the principle is clear enough.

The time limits for the appeal are tight and rigid. If he is domiciled in the State in which enforcement has been ordered, the debtor-appellant has one month from the date of service of the order for enforcement to lodge his appeal. If domiciled in another Lugano or Member State, the period is extended to two months from the date when service was made on him personally or at his place of residence. In neither case is the court permitted to extend the time on grounds of distance; in other cases (which is to say, where this is not precluded by the Article), a court may extend time, but willensure that, in doing so, it does not call into question the legislative policy in favour of the rapid, speedy, and efficient enforcement of those judgments to which Chapter III or Title III applies.^[1] In the case of an appellant who is not domiciled in any Lugano or Member State the period is two months, which may be extended on grounds of distance.

The appeal against the order for registration is made to the High Court, this time to a judge. Article 45(1) provides that the only grounds upon which the appeal may be allowed are the jurisdictional grounds specified in Article 35, and the non-jurisdictional grounds in Article 34. But this cannot be read literally. After all, if the appellant were not entitled at this stage to submit that the judgment is not in a civil or commercial matter, for example, or that he is protected from enforcement by a bilateral treaty, or on any other ground not within the ambit of this rule, it must come up at this point or not be raised at all. It follows that all grounds and every ground of opposition to the enforcement of the judgment may be raised at this stage though, of course, the substance of the judgment as such may not be reviewed. Article 45(1) must be taken to be referring to grounds which are internal to and expressly provided by the Title/ Chapter III for judgments which fall within its scope, and not as excluding those which go to define its outer edges.

The court hearing the appeal against registration may also, if the appellant makes an application to this effect, stay the proceedings for enforcement if an ‘ordinary appeal’ against the judgment is pending in the State of origin. Of course, if the courts of the State of origin of the judgment have suspended the enforceability of the judgment pending the appeal. Article 38 will already have prevented the proceedings for enforcement. The court ‘may also’, which presumably means ‘may instead’ and probably means ‘should usually’, order that enforcement is to be conditional on the provision of security.

The party who loses at the inter partes stage of the procedure may make one, and only one, further appeal, only on a point of law, against that decision. The grounds on which the court hearing the further appeal on a point of law may make its decision are the same as those open to the court below, and its powers pending an appeal in the State of origin, to stay or make enforcement conditional on security, are the same as those of the court below.^[2] In England, this will almost always mean that the final appeal is to the Court of Appeal.

• [1] All provided by Art. 43. Enforcement or relaxation of these time limits (otherwise than on grounds of distance, where that is prohibited by the Article) is a matter for the national court and not for the Court of Justice: C-220/95 Van den Boogaard v Laumen [1997] ECR 1-1147. For refusal to extend time, see Christofi v National Bank of Greece (Cyprus) Ltd [2018] EWCA Civ 413, [2019] 1 WLR 1435: extension should be allowed only on very good grounds, and maybe only prospectively: the very thorough decision resolves the untidiness of conflicting first instance judgments. See also Kingdom of Spain v London Steam-Ship Owners' Mutual Insurance Association Ltd [2020] EWHC 142 (Comm), [2020] I WLR 1538 (refusing to order disclosure in relation to the appeal against registration for the same general reason). 2 If application for extension of time is made within the period of two months: CPR r. 74.8. 3 Article 1. 4 See para. 33.11, above. 5 Article 45(2). 6 But there is no obligation: DHL GBS (UK) Ltd v Fallimento Finmatica SpA [2009] EWHC 291 (Comm), [2009] 1 Lloyd’s Rep 430. 7 43/77 Industrial Diamond Supplies v Riva [1977] ECR 2175. 8 Article 46(1). 9 Article 46(3). Which it should do is a matter lying within its own discretion: Petereit v Babcock International Ltd [ 1990] 1 WLR 350. 10 Article 44 and Annex IV. 11 That is, as stated in Art. 45(1), but not interpreted literally.
• [2] Thereby reversing the decision in C-432/93 SISRO v Ampersand Software tz [ 1995] ECR 1-2269. 2 As it did, for example, in C-420/07 Apostolides v Orams [2009] ECR 1-3571. 3 Article 48. 4 C-220/95, [1997] ECR 1-1147. 5 Excluded from the material scope by Art. 1 (2)(b). 6 The hesitation reflects the fact that a penal daily order, imposed to encourage or secure compliance with an order made in the proceedings (astreinte) is enforceable in accordance with Art. 49. See also C-406/09 Realchemie Nederland BV v Bayer CropScience AG [2011] ECR 1-9773. 7 Unreported, but discussed in Zeitschrift fiir Zivilprozess International (ZZPInt) 1 (1996) 89. 8 The report does not disclose whether it was made originally without notice and then continued or remade after a further hearing on notice. 9 The German court saw no objection in the English court ordering a worldwide injunction. The court doubted that the order could ever be regarded in Germany as having an effect on non-parties, who had not been present and entitled to be heard at any stage in the procedure; and as against them the order was not to be recognised. 10 It turned out to be under the rules of an injunctive title, § 890 of the German Civil Code (ZPO).