Supreme Court (An Chúirt Uachtarach) – Case Summary

Factual and Procedural Background

The Appellant, an Irish-incorporated investment vehicle ("Company A"), was established by a large group of investors resident in this jurisdiction. Around 2006, the Respondent, an Irish resident, approached approximately 78 investors to fund the purchase of land and the construction of a shopping centre in a city in another Member State ("The City in The State"). The investors contributed substantial sums by way of share capital to a special purpose vehicle which developed the project, and the shopping centre opened in March 2009.

In July 2009, the Respondent informed the investors that their intended exit strategy, involving refinancing of the special purpose vehicle’s loans so they could exit profitably, was no longer feasible due to the global financial crisis.

At the end of November 2010, the Respondent informed the investors of an offer from another company ("Company B") to swap their shares in the special purpose vehicle for a different series of shares in Company B, which he presented as a profitable and diversifying opportunity. In December 2010 he wrote again, expressing serious concerns about the financial position of the shopping centre, without providing detailed analysis. The investors accepted the share-swap offer in March 2011 and granted the Respondent powers of attorney to carry out the transactions on their behalf.

It is alleged that, unbeknownst to the investors, the Respondent had already entered into a joint venture with Company B, under which he was to arrange acquisition of the investors’ shares in the special purpose vehicle. The transactions entered into by the Respondent are said to have been highly unfavourable to the investors, resulting in their losing the entire value of their investment.

The investors later established Company A and individually assigned their causes of action against the Respondent to that company under the law of The State. It is accepted that these assignments were valid under that law. Company A and the assignment structure were expressly devised so that Company A could pursue proceedings in The State on behalf of the investors.

In August 2015, Company A commenced proceedings in the Regional Court in the capital city of The State. Company A claimed that the Respondent had defrauded the investors in relation to the investment structure, sought declarations of nullity in respect of the agreements concluded by the Respondent using the powers of attorney, and claimed repayment of the purchase price of the investors’ shares. Company A failed at first instance and filed an appeal on 15 October 2018.

On 10 June 2021, the Court of Appeal of The State awarded judgment in favour of Company A against the Respondent in the sum of PLN 28,391,106 (approximately €6.37m at the time of assessment) ("the Polish judgment"). The Court of Appeal concluded that the Respondent had wrongfully and without authority entered into the relevant agreements on behalf of the investors.

On 7 July 2021, the Court of Appeal of The State authorised enforcement of its judgment in this jurisdiction. Company A then sent the Respondent a letter dated 28 July 2021, indicating its intention to commence enforcement proceedings here against his assets.

In response, on 30 July 2021, the Respondent issued an originating notice of motion in the High Court of this jurisdiction seeking orders under Articles 45(1)(a) and 46 of Regulation (EU) No. 1215/2012 ("Brussels I (recast)") refusing recognition and enforcement of the Polish judgment. He relied on two grounds:

• The assignments of the investors’ bare causes of action to Company A were allegedly invalid and champertous under Irish law ("the assignment issue").
• The Polish Court of Appeal was allegedly improperly constituted, in breach of the principle of judicial independence, due to the presence on the appeal panel of a judge seconded from a lower court by the Minister for Justice of The State under Article 77 of the Law on the Organisation of the Ordinary Courts of 27 July 2001 ("the rule of law issue").

In an ex tempore judgment on 11 November 2022, the High Court (Judge 1) refused the relief sought. As to the assignment issue, the High Court held that recognition of the Polish judgment would not infringe any fundamental principle of Irish law. Regarding the rule of law issue, the High Court held that there was no evidence that any possibility of ministerial abuse of the secondment procedure had impacted the conduct or outcome of the appeal in The State. Judge 1 considered that it would have been necessary to identify a systemic deficiency in the procedure of that court and show that it had a significant impact on these proceedings; the Respondent had not done so, and the High Court saw no reason to initiate any further inquiry of its own. The High Court therefore considered it unnecessary to await the outcome of a pending preliminary reference from the Supreme Court of The State to the Court of Justice of the European Union ("CJEU") concerning aspects of judicial appointments there. The Respondent appealed to the Court of Appeal.

On 30 April 2024, the Court of Appeal (Judge 2) allowed the Respondent’s appeal and refused recognition of the orders of the Court of Appeal of The State. That court held that the impugned assignments were bare causes of action which would be unenforceable if litigated in this jurisdiction, and that recognising the judgment would be contrary to public policy. In those circumstances, it considered it unnecessary to consider the rule of law issue and, given a pending reference by the Supreme Court of The State to the CJEU on judicial independence, the Court of Appeal concluded that it should neither engage with the second ground of appeal nor itself make a preliminary reference.

Company A obtained leave to appeal to the Supreme Court of this jurisdiction on the assignment issue only. In an earlier judgment ("the first judgment"), the Supreme Court rejected the public policy/champerty argument and held that the assignment structure did not justify refusal of recognition under Article 45(1)(a) Brussels I (recast). The Polish judgment was held to be prima facie entitled to recognition.

Initially, the Supreme Court did not grant leave on the rule of law issue, as that issue had not been considered by the Court of Appeal. Subsequently, by ruling on 17 July 2025, the Supreme Court held that it had jurisdiction to extend the grant of leave and concluded it would be practical and convenient to consider and determine the rule of law issue so as to finally resolve the matter. The present judgment is the Court’s second judgment in the appeal, confined to that issue.

Separate from the recognition proceedings in this jurisdiction, following the Court of Appeal’s judgment in The State, the Respondent sought leave to appeal to the Supreme Court of The State, which was granted. A three-judge panel was appointed to hear that cassation appeal. In September 2023, the Respondent objected to the presence of one member of that panel under Article 29 of the Law on the Supreme Court of 8 December 2017, because that judge had been appointed following a resolution of the National Council of the Judiciary (KRS) whose compatibility with EU requirements of judicial independence was disputed. A five-judge panel of the Supreme Court of The State, itself including judges appointed on the nomination of the reconstituted KRS, referred questions under Article 267 TFEU to the CJEU (Case C-748/23, "Company C Ltd v Respondent") regarding the independence of such judges. An Advocate General has delivered an opinion, and the CJEU’s judgment is awaited. That reference, however, concerns the composition of the Supreme Court of The State and is separate from the issue in this appeal, which focuses on the secondment of a lower court judge to the Court of Appeal.

The rule of law issue here arises because one member of the three-judge panel of the Court of Appeal of The State that delivered the Polish judgment had been seconded from a lower court by the Minister for Justice under Article 77 of the Law on the Organisation of the Ordinary Courts. The Respondent contended that this secondment procedure, and the appointment itself, were void and inapplicable as a matter of EU law, and that any judgment delivered by a panel including such a seconded judge could not be recognised in this jurisdiction.

Legal Issues Presented

1. Whether the secondment of a lower-court judge to the Court of Appeal of The State by the Minister for Justice under Article 77 of the Law on the Organisation of the Ordinary Courts is, in itself, incompatible with EU law requirements of judicial independence and impartiality under Article 19(1) TEU and related provisions, such that a judgment delivered by a panel including such a judge is not entitled to recognition in this jurisdiction under Brussels I (recast).
2. Whether, in the context of judicial reforms and alleged systemic deficiencies affecting judicial independence in The State, the mere existence of a structural problem suffices to invoke the "manifestly contrary to public policy" exception in Article 45(1)(a) Brussels I (recast), or whether the party opposing recognition must also demonstrate that any such deficiency specifically prejudiced them in the case at hand.
3. Whether, as a court of last resort within Article 267(3) TFEU, the Supreme Court of this jurisdiction was required to make a further preliminary reference to the CJEU on the compatibility of the Article 77 secondment regime with EU law, or whether the matter could be regarded as acte clair in light of existing CJEU case law.

Arguments of the Parties

Appellant's Arguments (Company A)

• This information was not available in the provided opinion.

Respondent's Arguments

• The Respondent argued that the secondment of a judge from a lower court to the Court of Appeal of The State under Article 77 of the Law on the Organisation of the Ordinary Courts is inherently incompatible with the guarantees of judicial independence and impartiality required by Article 19(1) TEU and other provisions of EU law.
• He relied in particular on the CJEU’s judgment in Joined Cases C-748/19 to C-754/19 ("Case E (Secondment of Judges in Criminal Cases)") to contend that the Article 77 secondment regime is structurally defective and that any court panel including a judge appointed under that regime is not a tribunal established by law within the meaning of EU law.
• The Respondent contended that the mere presence on the appeal panel of a judge seconded under Article 77 was sufficient, in itself, to meet the requirement (derived from CJEU case law) that systemic deficiencies must also have an impact on the individual concerned. He did not point to any further concrete prejudice or specific acts of interference arising from that judge’s participation.
• He also argued that it was inappropriate to transpose, by analogy, the CJEU’s case law on the European Arrest Warrant (and in particular the requirement of a two-stage assessment in "Openbaar Ministerie (Independence of the issuing judicial authority)") to the operation of the public policy exception under Article 45(1)(a) Brussels I (recast).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Case A v Company A [2025] IESC 20 ("Scully v Coucal Ltd", first Supreme Court judgment)	Confirmed that the Polish Court of Appeal judgment is prima facie entitled to recognition under Brussels I (recast) and rejected the public policy argument based on alleged champertous assignments.	Provided the procedural and substantive background: the present judgment proceeds on the basis that the assignment issue has been resolved in favour of Company A, leaving only the rule of law issue for determination.
Case A v Company A [2024] IECA 104 (Court of Appeal)	Held that assignments of bare causes of action to Company A were contrary to public policy and refused recognition of the Polish judgment on that ground; declined to address the rule of law issue.	Described as having been overturned on the assignment issue by the Supreme Court’s first judgment; its failure to address the rule of law issue initially influenced the scope of leave to appeal.
Supreme Court Determination [2024] IESCDET 133	Addressed the criteria for granting leave to appeal, including the impropriety of granting leave on an issue not decided by the Court of Appeal.	Explains why the Supreme Court initially did not grant leave on the rule of law issue, and provides context for the later extension of leave.
Joined Cases C-748/19 to C-754/19, Case E (Secondment of Judges in Criminal Cases) (EU:2021:931)	Held that, while Member States may temporarily second judges in the interests of the service, the rules governing secondment must provide guarantees of independence and impartiality. In the specific criminal context examined, use of the Article 77 secondment procedure by the Minister for Justice (who was also the Public Prosecutor General) without transparent criteria or safeguards violated EU law.	The Supreme Court distinguished this precedent, emphasising that the present case concerns a civil appeal in which the Minister for Justice and the State are not parties, and where the judge was randomly allocated to the panel. The Court treated Case E as authority that secondment is not per se contrary to EU law, but may be objectionable when used by an executive actor who is also a prosecuting party in criminal proceedings.
AK (Independence of the Disciplinary Chamber of the Supreme Court) (C-585/18, C-624/18 and C-625/18, EU:C:2019:982)	One of a series of judgments in which the CJEU raised serious concerns about the independence of judicial bodies in The State, particularly those affected by reforms to the National Council of the Judiciary and the Supreme Court.	Cited as part of the broader context of judicial reforms in The State that generated extensive CJEU jurisprudence on Articles 2 and 19(1) TEU, Article 267 TFEU and Article 47 of the Charter, and prompted legislative changes allowing an ad hoc panel of the Supreme Court of The State to assess judicial independence.
Case B v The State (Grzeda v Poland) (CE:ECHR:2022:0315)	European Court of Human Rights decision demonstrating international concern about judicial independence in The State.	Cited, together with CJEU case law, to show that serious doubts had arisen about the independence of the judiciary in The State, leading to subsequent legislative reforms.
Case C-748/23, Company C Ltd v Respondent	Reference from the Supreme Court of The State raising questions about whether panels including judges appointed on the nomination of the reconstituted National Council of the Judiciary satisfy EU requirements of independence and impartiality.	Referred to as a separate, pending CJEU case arising from the Respondent’s objection to the composition of a Supreme Court panel in The State. It illustrates a different aspect of judicial independence there (appointments via the KRS) and is distinguished from the secondment issue at stake in the recognition proceedings.
TB [Daka], Joined Cases C-422/23, C-455/23, C-459/23, C-486/23 and C-493/23 (EU:C:2025:592)	Clarified that internal organisational measures designating judges to sit temporarily in another chamber, taken for legitimate reasons such as managing workload and backlog, do not in themselves render panels non-independent, even where adopted by presidents whose own appointments are contested. Such measures are compatible with Article 19(1) TEU where they are temporary, within statutory limits, not targeted, do not demote judges, and have no disciplinary character.	The Supreme Court applied this reasoning by analogy to conclude that secondment of a judge to a higher court under Article 77 in a civil context is not per se contrary to EU law. TB [Daka] was treated as confirming that organisational reassignments or secondments, absent specific features undermining independence, do not automatically invalidate panels or their judgments.
W.Ż (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C-487/19, EU:C:2021:798)	Held that where a body does not constitute an independent and impartial tribunal established by law, its decisions must be treated as void; also emphasised that measures analogous to disciplinary sanctions must be surrounded by guarantees preventing their use for political control over judicial decisions.	Quoted in Case E and TB [Daka] to highlight the need for safeguards where executive-controlled measures (such as terminating secondment) may affect judges’ positions and independence. The Supreme Court used these references as part of the contextual analysis of when secondment regimes may breach EU law.
Commission v The State (Disciplinary regime for judges) (C-791/19, EU:C:2021:596)	Addressed the disciplinary regime for judges in The State and the role of disciplinary officers, underlining risks to judicial independence.	Referred to in the CJEU’s analysis in Case E, and quoted in the present judgment to illustrate concerns where seconded judges simultaneously perform disciplinary functions under the authority of the Minister for Justice.
Openbaar Ministerie (Independence of the issuing judicial authority) (C-354/20 PPU and C-412/20 PPU, EU:C:2020:1033)	Established, in the context of the European Arrest Warrant, a two-stage test: the executing court must first identify any systemic or generalised deficiencies affecting judicial independence in the issuing Member State, and then assess whether those deficiencies specifically affect the court or judge involved in the individual case so as to create a real risk for the person concerned.	The Supreme Court transposed this logic to Brussels I (recast), holding that even if systemic deficiencies exist in another Member State’s judiciary, they do not automatically preclude recognition of its judgments. The party resisting recognition must also show that the specific proceedings or judges in question were affected, and that they suffered or risked individual prejudice. The Respondent failed to meet this second requirement.
Consorzio Italian Management (C-561/19, EU:C:2021:799)	Clarified the obligations of courts of last resort under Article 267(3) TFEU, including when they may refrain from making a preliminary reference because the correct application of EU law is so obvious as to leave no scope for reasonable doubt (acte clair).	The Supreme Court relied on this authority in explaining why it considered a further reference to the CJEU unnecessary: in its view, TB [Daka] had rendered the question of the compatibility of the Article 77 secondment with EU law sufficiently clear.

Court's Reasoning and Analysis

The Supreme Court confined its analysis to the "rule of law" objection to recognition under Article 45(1)(a) Brussels I (recast), as the separate "assignment issue" had already been resolved against the Respondent in the first judgment.

The contested feature of the Polish proceedings was that one member of the Court of Appeal panel had been seconded, on multiple occasions, from a lower court by the Minister for Justice under Article 77 of the Law on the Organisation of the Ordinary Courts. The Respondent contended that this secondment regime is, as a matter of EU law, per se contrary to the requirements of judicial independence under Article 19(1) TEU, and that any judgment delivered by a panel including such a judge could not be recognised.

As preliminary points, the Court noted:

• Expert evidence from all Polish legal experts who swore affidavits indicated that the secondment procedure under Article 77 was long-standing and not unusual within the legal system of The State.
• The fact that the judge was sitting as a seconded judge was or should have been known to the parties in advance, and no objection was made at the time. In civil cases, judges in The State are generally allocated to panels by random computer assignment.

The Court then examined the CJEU’s judgment in Case E (Joined Cases C-748/19 to C-754/19). It accepted that the CJEU had identified serious concerns about the secondment of judges in the criminal context where:

• The Minister for Justice, who is also the Public Prosecutor General, has the power to second judges to higher courts and to terminate such secondments at any time, without published criteria or a stated rationale.
• The termination of a secondment, particularly without the judge’s consent, can have effects similar to a disciplinary penalty, necessitating guarantees against its use as a political tool to influence judicial decisions.
• The combination of prosecutorial authority and control over seconded judges, especially in criminal cases, could objectively create an appearance of dependence and subordinate status inconsistent with the principle of irremovability and judicial independence.

However, the Supreme Court stressed that Case E must be understood in its own context. It is not authority for the proposition that the secondment of judges is, in itself, contrary to EU law. Rather, the vice identified there arose from the use of a secondment regime in criminal proceedings where the Minister for Justice was effectively controlling judges whose decisions affected prosecutions brought under his own authority.

The present case differs in several material respects:

• It concerns a civil dispute between private parties. Neither the Minister for Justice nor the State of The State is a party to the litigation.
• The seconded judge sat on a three-judge panel of the Court of Appeal of The State dealing with private law claims concerning a failed investment; there is no element of criminal prosecution.
• There is no evidence, nor even allegation, that the Minister, the State, or any executive authority engineered the presence of this particular judge on the panel. Her allocation appears to have resulted from the standard random assignment procedure.

The Court then considered the later CJEU judgment in TB [Daka]. That case involved several civil cases in which judges from one chamber of the Supreme Court of The State (the Labour and Social Insurance Chamber) were temporarily assigned to sit in the Civil Chamber. The assignments were made by the First President of the Supreme Court, and specific cases were allocated by the President of the Civil Chamber. Although those presidents had themselves been appointed under contested conditions, the CJEU held that:

• National law governs the organisation of courts and distribution of cases; measures designating judges to sit temporarily in another chamber may be essential for proper administration of justice and respect for reasonable time requirements.
• Not every internal organisational measure taken by a president whose own appointment is open to question renders judicial panels hearing individual cases non-independent or invalid under EU law.
• Concern arises only where such measures materially affect judges’ powers and careers (for example by demotion), are used in a targeted or retaliatory way (e.g., towards judges who criticised judicial reforms), or have disciplinary-type effects that could generate legitimate doubts in litigants’ minds.
• Conversely, where measures are temporary, motivated by legitimate needs (such as clearing a backlog), do not demote judges or remove existing cases from them, and apply to a broad group of judges without targeting specific individuals, they do not infringe the principles of independence and impartiality, even if no appeal lies against them and even if taken without the judges’ consent.

The CJEU emphasised that, in such circumstances, the absence of a legal remedy against the assignment and the lack of stated reasons do not, by themselves, amount to a breach of Article 19(1) TEU or Article 47 of the Charter.

The Supreme Court held that the logic of TB [Daka] applies mutatis mutandis to secondments under Article 77 in the present civil context. It reasoned as follows:

• This case, like TB [Daka], concerns civil proceedings, not criminal prosecutions. The special features that troubled the CJEU in Case E (the union of ministerial and prosecutorial functions in the same person and control over judges in criminal cases) are absent.
• Secondment from a lower court to a higher court is an unexceptional and widely used feature of the judicial system in The State and has analogues in many other systems. All expert evidence suggested that the practice itself was long-established and not inherently suspect.
• There is no suggestion that the secondment here was used to target the judge concerned in retaliation for prior judicial decisions or positions on judicial reforms. Nor is there evidence that it entailed any demotion or deterioration of the judge’s professional status, or that it had effects analogous to a disciplinary penalty.
• The allocation of the seconded judge to the appeal panel appears to have been determined by random computer assignment, undermining any claim of manipulation of the panel’s composition.
• If TB [Daka] shows that organisational measures taken by a president whose own appointment is questionable do not automatically compromise panel independence, the same must, a fortiori, apply to a statutory secondment made by a member of the executive charged by law with court organisation, especially in a case with no involvement of the State as litigant.

Over and above this analysis, the Court addressed the Respondent’s reliance on alleged systemic deficiencies in the judiciary of The State. It referred to the CJEU’s decision in Openbaar Ministerie (Independence of the issuing judicial authority), which held that, even where systemic or generalised deficiencies are identified in a Member State’s judiciary, an executing court (there, in the context of European Arrest Warrants) must conduct a second, individualised assessment. The party opposing execution must show that those deficiencies specifically affect the court or judge dealing with their case and create a real risk of a violation of their rights.

Although Openbaar Ministerie concerned criminal cooperation under the European Arrest Warrant, the Supreme Court held that the same underlying principle applies to the Brussels I (recast) regime, because both instruments are founded on mutual trust among Member State courts. A finding of systemic deficiency in one Member State cannot automatically justify blanket refusal to recognise all its judgments; that would undermine mutual trust.

Accordingly, even if the Article 77 secondment regime could be characterised as disclosing some systemic deficiency (a proposition the Supreme Court did not accept), the Respondent would still need to show that this deficiency specifically prejudiced him in the proceedings leading to the Polish judgment. The Court accepted that in some cases such prejudice would be self-evident, for example where the appointment of a particular judge clearly failed to meet independence and impartiality requirements, as indicated by the Advocate General’s observations in Company C Ltd v Respondent. However, this was not such a case.

The Respondent’s contention was that the mere presence of an Article 77-seconded judge on the panel was sufficient in itself to satisfy the individualised prejudice requirement. The Court rejected this, relying on TB [Daka] to reaffirm that secondment in a civil case is not inherently incompatible with Article 19(1) TEU or other principles of EU law. As the Respondent identified no specific way in which the secondment had affected the conduct or outcome of his appeal, and no evidence of external control or undue influence was adduced, the Court held that the second, individualised limb of the test was not met.

Finally, the Court addressed its obligations under Article 267(3) TFEU, in light of Consorzio Italian Management. It recognised that, as a court of last resort, it is normally obliged to refer questions of EU law interpretation to the CJEU unless the correct application of EU law is so obvious as to leave no room for reasonable doubt. In the Court’s view, TB [Daka] had now made it clear that the secondment of a judge to a higher court under Article 77 is not, in itself, contrary to EU law, at least in civil cases of this type. Since the Respondent’s challenge rested precisely on the premise that the secondment procedure was per se invalid under EU law, the Court considered that this issue had been rendered acte clair by TB [Daka], and a further reference was unnecessary.

Holding and Implications

The Supreme Court held that the Respondent had not established that recognition of the Polish Court of Appeal’s judgment would be manifestly contrary to public policy in this State within the meaning of Article 45(1)(a) Brussels I (recast). In particular, it found that the secondment of the judge from a lower court under Article 77 of the Law on the Organisation of the Ordinary Courts did not, in the circumstances of this civil case, violate EU requirements of judicial independence and impartiality or render the court improperly constituted.

The Court therefore declared that the judgment of the Court of Appeal of The State is entitled to recognition in this jurisdiction and rejected the Respondent’s public policy objections based on the rule of law issue.

As a result, together with the earlier first judgment rejecting the assignment-based public policy challenge, the way is cleared for Company A to seek enforcement of the Polish monetary judgment against the Respondent’s assets in this jurisdiction. The judgment affirms that:

• Secondment regimes such as that under Article 77 of the Law on the Organisation of the Ordinary Courts are not, in themselves, incompatible with EU law in civil matters.
• Allegations of systemic deficiencies in another Member State’s judiciary do not automatically bar recognition of its judgments; a party resisting recognition must also show that those deficiencies specifically affected their case.

The opinion applies and consolidates existing CJEU jurisprudence rather than creating a new, independent line of authority. Its immediate effect is confined to the parties: the Respondent’s attempt to resist recognition on rule of law grounds fails, and Company A’s efforts to enforce the foreign judgment in this jurisdiction may proceed.