Summary
The appellant has been ordered, by a decision of the London High Court of 19 April 2007, to pay maintenance for the child of both spouses in the amount of 84,000 GBP, as well as a sum of 225,000 GBP to allow the defendant to buy a house for herself and the child. The defendant obtained the recognition and enforcement of the decision in unilateral proceedings before the Belgian Court of First Instance of Nivelles on 25 March 2008. The appellant then lodged an appeal in third-party proceedings against the decision of the court in Nivelles.
The appellant argues that he had been unable to lodge an appeal against the decision of the High Court for financial reasons. The appellant complains about how he had been confronted with “colossal” legal fees in the United Kingdom and how the High Court had refused representation by his Belgian lawyer. He now argues before the Court of Cassation that the decision of the High Court violates his right to a fair trial, enshrined in Art. 6 ECHR, and that the High Court decision is insufficiently motivated. Therefore, not all his arguments have been heard and the judgment should not be recognised since it is manifestly contrary public policy (cf. Art. 34(1) Brussels I Regulation).
From the case law of the ECJ, it appears that “recourse to a public policy clause can be envisaged only where recognition or enforcement of the judgment delivered in another Contracting State would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought inasmuch as it infringes a fundamental principle. The infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought or of a right recognised as being fundamental within that legal order” and that “a restriction [on the rights of the defence] must satisfy very exacting requirements if it is not to be regarded as a manifest and disproportionate infringement of those rights. It is for the national court to assess, in the light of the specific circumstances of these proceedings, if that is the case.” (cf. C-394/07, Marco Gambazzi v. DaimlerChrysler Canada Inc. and CIBC Mellon Trust Company, considerations 27 and 33-34). The question of the compatibility of the measure adopted by the court of the State of origin with public policy in the State in which enforcement is sought must be assessed having regard to the proceedings as a whole in the light of all the circumstances (cf. consideration 40). It is also for the national court to examine what legal remedies were available after the order was made, in order to request its amendment or revocation (cf. consideration 42).
In the case at issue, the appellant did not exercise any legal remedy against the decision, and does not show that, in the light of all the circumstances, the available remedies were doomed to failure, regardless of whether those remedies pertain to a request for legal aid or the merits of the case.
Therefore, the decision of the London High Court is not manifestly contrary to Belgian international public policy, and the Nivelles Court of First Instance rightly granted its recognition and enforcement.
Short critique