The Commercial Court has handed down a significant judgment considering the recognition and enforcement of foreign judgments alleged to entail a manifest breach of English public policy on grounds of breaches of human and fundamental rights.
The judgment arises in the context of the long-running litigation concerning the loss of the M/T ‘Prestige’ (‘the Vessel’) off the coast of Spain in November 2002. The London Steam-Ship Owners’ Mutual Insurance Association Ltd (‘the Club’) were insurers of the owners and managers of the Vessel. Following criminal and civil proceedings in the Spanish Courts in which the Master of the Vessel was found convicted of the offences of serious negligence against the environment and disobedience to the authorities and the Club was found civilly liable up to a USD 1 billion global policy limit, for damages arising out of pollution following the loss of the Vessel, on 1 March 2019 the Provincial Court of La Coruña issued a judgment setting out the amount which the Kingdom of Spain (‘Spain’) was entitled to enforce against the Club (‘the Spanish Judgment’). The Spanish Judgment was registered by an ex parte Order of Master Cook dated 28 May 2019 (‘the Registration Order’), pursuant to Article 43 of Regulation (EC) 1215/2012 (‘the Regulation’).
The Club subsequently appealed against the Registration Order on grounds which included that the recognition of the Spanish Judgment would entail a manifest breach of English public policy in respect of human and fundamental rights, such that the exception in Article 34(1) of the Regulation is applicable. The human and fundamental rights invoked by the Club included aspects of each of Article 6 of the European Convention on Human Rights (‘ECHR’) and Article 14 of the International Covenant on Civil and Political Rights (‘the ICCPR’).
The judgment contains a detailed treatment of the approach to Article 34(1) of the Regulation where the public policy claim relates to human and fundamental rights and consideration of the circumstances in which an appellant can invoke breaches of the rights of a third party in the context of an appeal of this kind, the importance of the appellant’s participation in the underlying foreign proceedings and the relevance of complaints of breaches of the same human and fundamental rights having been dismissed at the admissibility stage by the European Court of Human Rights.
The judgment is particularly significant for its treatment of the question of whether alleged breaches of rights found in an unincorporated treaty are capable of giving rise to a manifest breach of English public policy. The Club had relied inter alia upon the rights of the Master of the Vessel under Article 14(5) of the ICCPR and an argument that the Spanish Judgment followed proceedings in which the Master was convicted of the crime against the environment for the first time on appeal from which he had no higher right of review. Butcher J considered that Article 14(5) of the ICCPR did not represent a right recognised as fundamental within the English legal order such that it would be contrary to public policy to enforce any judgment based on a conviction rendered in contravention of its terms as it was not part of English law. Furthermore, even if Article 14(5) of the ICCPR could be said to form a fundamental part of English public policy, it would not qualify as a relevant public policy for the purposes of Article 34(1) of the Regulation as it would not fall inside the limits within which member states may have recourse to the public policy exception pursuant to CJEU jurisprudence given the terms of Article 2(2) of the Seventh Protocol to the ECHR which expressly qualified the right to higher review enshrined in the ECHR.
Naina Patel acted for the Kingdom of Spain.
A copy of the judgment can be found here.