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The High Court confirms it has jurisdiction under the Brussels Recast Regulation to make a Part 71 order in respect of foreign judgments

6th Mar 2020

The Insolvency and Companies Court has today handed down judgment in the case of Alfred Schefenacker -v- Darko Horvat [2020] EWHC 506 (Ch). Jason Robinson represented the successful Respondent and was instructed by Mishcon de Reya LLP.

The application was to set aside a Part 71 Order made by Insolvency and Companies Court Judge Barber, permitting the questioning of a judgment debtor, following a money judgment in favour of the Respondent first issued by the Regional Court of Cologne in 2017.

The Applicant argued the English courts had no jurisdiction to make a Part 71 order with respect to a foreign judgment on the basis that the Brussels Recast Regulation only has force in respect of enforcement procedures and, according to Sucden Financial Limited v Fluxo-Cane Overseas Limited[2009] EWHC 3555, relief under Part 71 is “anterior” to enforcement. The Court rejected that argument. Although an order for questioning a judgment debtor under Part 71 is anterior to enforcement, it is nevertheless part of a set of rules dealing with enforcement of judgments, and since a certificate of enforceability had been issued by the German court in respect of the Cologne judgment it was enforceable in England as if it were a judgment of the English courts (see §17 – §18).

The Applicant also argued that the Insolvency and Companies Court lacked jurisdiction to grant a Part 71 Order because an application for such relief “must be issued in the court or County Court hearing centre which made the judgment or order which it is sought to enforce” (CPR r. 71.2(2)(b)). The suggestion was that since the judgment in question was a foreign judgment of the German courts, Part 71 relief could not be obtained as no application for such relief could be brought “in the court of County Court hearing centre which made the judgment”. That argument was also rejected: see §20 – §21.

The judgment accordingly clarifies that an order for questioning of a judgment debtor under Part 71 is relief that an English court has jurisdiction to grant where that judgment emanates from a foreign court and satisfies the definition of “judgment” in Article 2 of the Brussels Recast Regulation.

A copy of the judgment can be found here.

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