EUPillar SPRL L. v. M.I - 2003/2429/A - Civ. Bruxelles, 13 October 2004

Summary

By application made on 7 November 2002, the company M.I. sought the exequatur of a decision of the High Court of Justice in London of 20 March 2002 which ordered the SPRL L. to pay an amount of 152,205.85 GBP, to be increased by the interests and legal costs. The Brussels Court of First Instance granted the declaration of enforceability on 18 December 2002. After the SPRL L. was notified, it decided to appeal against the declaration of the Court of First Instance. The parties both recognise that the Court of First Instance may not review the judgment as to its substance (cf. Art. 36 Brussels I). Nevertheless, SPRL L. notes that the judgment of 20 March 2002 was a default judgment. Eight days before the hearing in London, SPRL L. had notified the opposing party and the judge that he no longer had legal counsel. L. opposes the declaration of enforceability on the basis of Art. 34(1) and (2) Brussels I. Art. 34(1) Brussels I provides that a judgment shall not be recognised if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought. L. argues that the adversarial principle was not observed in its case and that this principle is an essential procedural guarantee which is part of Belgian international public policy. At the hearing in London, during which L. failed to enter an appearance, M. had changed its demands and increased the sum it was asking, without L.’s knowledge. However, the Belgian Court of Cassation has expressly stated that the adversarial principle is not part of Belgian public policy. Therefore, Art. 34(1) cannot be applied here. Art. 34(2) provides that a judgment shall not be recognised where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so. However, L. had been notified of the decision on 27 March 2002 and had 15 days to file an appeal. It filed its appeal past the time limit, on 28 June 2002. L. argues that this delay was due to trouble with his legal counsel – but that reason is insufficient. Its delay is due to negligence. L. could have undertaken steps to find another lawyer in the UK.