Supreme Court of Ireland – Anonymized Judgment Summary

Factual and Procedural Background

This case concerns an application in this jurisdiction to recognise orders of the Court of Appeal in The City, a court of another Member State of the European Union, under Regulation (EU) No. 1215/2012 (“the Recast Regulation”) and the relevant domestic procedural rules.

The Respondent had appealed a decision of the Regional Court of The City dated 25 July 2018 to the Court of Appeal in The City. The three-judge panel of the Court of Appeal included Judge X. Judge X was, in fact, a judge of the Regional Court in The City who had been seconded to the Court of Appeal by the Minister for Justice of The State under Article 77 of the Law of 27 July 2001 on the Organisation of the Ordinary Courts. The secondment:

• was a matter of public record;
• could be made on the basis of non-public criteria;
• was for an indeterminate duration; and
• could be revoked at any time.

In civil cases in that jurisdiction, judges are allocated randomly by an IT system. The composition of a given court panel appears from the court file and docket, and where a seconded judge has been assigned this is clearly indicated. It was also the general practice for legal representatives to check the panel composition in advance of an appellate hearing.

The Respondent either knew, or could readily have discovered, that Judge X was a seconded judge rather than a permanent judge of the Court of Appeal in The City. He did not, however, object to Judge X’s participation when his appeal was heard. The Court of Appeal in The City subsequently made orders dated 10 June 2021 and 7 July 2021, including refusing a stay on its order.

In the present Irish proceedings, Company A (the Appellant) seeks recognition of those foreign appellate orders. The Respondent opposes recognition, invoking Article 45(1)(a) of the Recast Regulation (the “public policy” exception) on the basis that the participation of Judge X, whose secondment is alleged to be unlawful under the law of The State and EU law, “contaminated” the validity of the foreign appellate judgment.

This judgment of Judge 1 in the Supreme Court addresses, in particular, whether the Respondent is precluded from advancing that public policy objection in Ireland because he failed to raise it before the Court of Appeal in The City, despite having the opportunity to do so.

Legal Issues Presented

1. Whether, under Article 45(1)(a) of the Recast Regulation, the Respondent may rely on a public policy objection based on the allegedly unlawful secondment of Judge X when he did not raise that objection before the Court of Appeal in The City, although it was open to him to do so.
2. More generally, in what circumstances courts in the Member State addressed may entertain a public policy challenge to recognition of a judgment under the Recast Regulation when the ground could have been, but was not, pursued through available remedies in the Member State of origin.

Arguments of the Parties

Appellant's Arguments (Company A)

• Relying on affidavit evidence from Attorney A, the Appellant contended that it was at all times open to the Respondent to object to Judge X’s participation before the Court of Appeal in The City, but he “pointedly chose not to” do so.
• In light of the principles of mutual trust and confidence underlying the Recast Regulation, and the exceptional nature of the public policy ground for refusing recognition, the Respondent should not now be permitted to raise, in Irish enforcement proceedings, an objection that could have been advanced in the primary proceedings in The State.

Respondent's Arguments

• Timing of later CJEU decision: The Respondent argued that a subsequent decision of the Court of Justice of the European Union (CJEU) in a group of joined cases (Cases C‑748/19 to C‑754/19, referred to in this judgment as Case 8), which condemned provisions governing the secondment of judges in The State, was delivered in November 2021, after his appeal was heard in The City. At the time of his appeal, he contended, the secondment procedure had a lawful legislative basis under the law of The State, and the CJEU’s later decision clarified, for the first time, that such secondments could be objectionable.
• Availability of remedy in the Supreme Court of The State: The Respondent noted that he is free under the law of The State to raise an objection to the composition of the appellate panel in a pending appeal to the Supreme Court of The State, and that he has in fact raised the point there.
• Effect of the “muzzle law” in The State: The Respondent relied on expert evidence about legal provisions in The State (described as the “muzzle law”) which, according to that evidence, expose a judge to disciplinary sanctions for questioning:
  • another judge’s service relationship,
  • the effectiveness of another judge’s appointment, or
  • the authority of a constitutional body of the Republic of The State.
  His expert suggested that those provisions “could be applied to any attempt to question the status of a seconded judge in a specific case,” implying that they might have precluded or deterred any challenge before the Court of Appeal in The City to Judge X’s participation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Case 1 ([2021] IECA 303)	Emphasises that the public policy ground in Article 45(1)(a) of the Recast Regulation is exceptional; that mutual trust and confidence between Member State courts and the need for swift enforcement require general deference by the courts of the Member State addressed to the courts of the Member State of origin.	The Supreme Court drew on this earlier appellate analysis to frame the high threshold for invoking public policy to refuse recognition and to support the proposition that challenges should normally be pursued in the State of origin.
Case 2 ([2021] IECA 206)	Further elaboration of the need for courts of the Member State addressed to defer to the court of origin on matters touching the merits, under the scheme of the Recast Regulation.	Cited (with paragraph references) as supporting authority for the principle that objections to foreign judgments should, in general, be raised and dealt with in the Member State of origin.
Case 3 ([2022] IECA 5)	Reinforces the approach taken in Cases 1 and 2 regarding the limited scope of the public policy exception and the primary role of the courts of the State of origin.	Relied on as part of a consistent line of domestic appellate authority justifying judicial restraint by the enforcing court when asked to refuse recognition under Article 45(1)(a).
Case 4 (C‑559/14, CJEU)	The Recast Regulation “is based on the fundamental idea that individuals are required, in principle, to use all the legal remedies made available by the law of the Member State of origin.”	Used to confirm that parties must, as a rule, exhaust remedies in the State of origin before seeking to rely on public policy objections in the enforcing State.
Case 5 (C‑681/13, CJEU)	States that, save where specific circumstances make it too difficult or impossible to use remedies in the Member State of origin, individuals must avail of those remedies to prevent a breach of public policy before it occurs, particularly where the alleged breach stems from EU law.	Formed the basis for the Supreme Court’s test that public policy objections in the enforcing State should ordinarily be entertained only where (a) they could not be raised in the State of origin, or (b) they were raised there but rejected in a manner that itself raises public policy concerns and cannot be remedied on appeal.
Case 6 ([1992] 1 Lloyd’s Reports 180)	Remarks (by a judge in that case) that courts of the State of origin are generally better placed than foreign courts to determine legal issues arising in their own proceedings.	Invoked to support the proposition that courts of the State of origin are usually better positioned, both to address alleged defects (including via references to the CJEU where appropriate) and to shape any necessary EU law questions.
Case 7 ([2015] EWHC 3745 (Comm))	Observation that it is “highly unattractive” for a defendant not to raise in the original jurisdiction points that could have been raised there, and instead to raise them only in the enforcing jurisdiction as public policy objections.	Cited to highlight the unfairness to a judgment creditor if a debtor withholds arguments in the primary forum and seeks to deploy them only later in enforcement proceedings abroad.
Case 8 (Joined Cases C‑748/19 to C‑754/19, CJEU)	Described in this judgment as a decision of the CJEU condemning, in at least some cases, the provisions governing the secondment of judges in The State.	Relied on by the Respondent (in argument) as confirming that the secondment regime was unlawful. The Supreme Court treated it as a later decision that might confirm, but did not create, the legal basis for objections that could already have been raised in the earlier proceedings in The City.

Court's Reasoning and Analysis

The Supreme Court began by noting that it is, on its face, surprising that the Respondent seeks to raise in Ireland an objection to Judge X’s participation which he could have, but did not, raise before the Court of Appeal in The City. The Court stressed the overarching purpose of the Recast Regulation: judgments of one Member State are to be recognised in others without special procedure, as if given by the courts of the Member State addressed. This system rests on mutual trust and confidence, requires efficient and expeditious enforcement, and contemplates that refusals of recognition or enforcement will be “wholly exceptional.”

Against that background, the Court reiterated, drawing in particular on Case 1 and related domestic precedent, that the public policy ground in Article 45(1)(a) must be narrowly construed. The structure of the Recast Regulation, and specifically Article 45(1)(b) (which expressly requires a party who complains about lack of service leading to a default judgment to challenge that judgment in the State of origin), illustrates the general principle that the primary mechanisms for addressing defects in judgments lie in the legal system of the Member State of origin.

The Court then turned to the CJEU case law. Case 4 was cited for the proposition that individuals are, in principle, required to use all legal remedies provided by the Member State of origin. Case 5 elaborated that, save where specific circumstances make it too difficult or impossible to invoke those remedies, parties must use them to prevent a breach of public policy before it occurs—especially where the alleged breach itself concerns EU law. On this basis, the Court held that the same expectation applies to objections framed under Article 45(1)(a): they should, as a rule, be raised in the State of origin.

Further support for this approach was drawn from Case 6, emphasising that courts of the State of origin are generally best placed to determine legal issues arising from their own proceedings, and can, where necessary, make appropriately framed references to the CJEU with the benefit of local legal context and, where appropriate, the participation of affected State parties. The Court also cited Case 7, which criticised the practice of withholding arguments in the original jurisdiction and later invoking them only in enforcement proceedings abroad as matters of public policy, describing this as “highly unattractive” and unfair to the party seeking to enforce the judgment.

From these authorities and the scheme of the Recast Regulation, the Supreme Court deduced a general rule: courts in the Member State addressed should ordinarily entertain a public policy challenge to recognition only where either:

• the challenge could not have been raised before the court issuing the judgment; or
• the challenge was raised there but was rejected for reasons that themselves constitute a public policy objection to enforcement, and that refusal cannot be remedied on appeal in the State of origin.

The Respondent did not dispute these general principles. His affidavit evidence did not contradict the averment of Attorney A that it had always been open to him to contest Judge X’s participation before the Court of Appeal in The City, although he did criticise that position. Instead, he advanced three specific points as to why he should nonetheless be allowed to rely on Article 45(1)(a) in Ireland.

First, regarding the timing of Case 8, the Respondent argued that at the time of his appeal the secondment procedure had a lawful and valid legislative basis under the law of The State, and only the subsequent CJEU ruling undermined that basis. The Supreme Court rejected this as an answer. It held that the Respondent had all the factual material necessary to raise, in his own proceedings, the type of objection that was later advanced in Case 8. On the Respondent’s own case, the CJEU’s decision merely confirmed the correctness of an argument that was already available; it did not create, for the first time, the legal basis on which such an objection could be raised.

Second, the Respondent pointed to the fact that he is entitled, under the law of The State, to raise the same point before the Supreme Court of The State in his pending appeal, and that he has indeed done so. The Supreme Court accepted that he is free to advance such an objection there, but considered this irrelevant to the distinct question before it: whether the decision of the Court of Appeal in The City (in particular, its refusal of a stay) should be recognised in Ireland. The availability of further remedies in The State might bear on a future attempt to resist enforcement pending that appeal, but it did not assist the Respondent’s current attempt to block recognition of the existing appellate orders on public policy grounds.

Third, the Respondent relied on evidence about the “muzzle law” in The State, which, according to his expert, could expose judges to disciplinary sanctions if they questioned another judge’s status or appointment. It was suggested that this framework “could be applied to any attempt to question the status of a seconded judge in a specific case,” and thus might have deterred challenges to Judge X’s participation. The Supreme Court noted that this suggestion was couched in tentative terms and observed that there was no evidence that these provisions in fact played any role in the Respondent’s failure to object to Judge X’s secondment before the Court of Appeal in The City.

The Court further observed that the Respondent’s expert evidence did not directly contradict or engage with the evidence of Attorney B, who stated that the Respondent could have objected to the panel’s composition pursuant to Article 49 section 1 of the Code of Civil Procedure of The State. Moreover, the Respondent has now argued before the Supreme Court of The State that the Minister for Justice’s delegation decisions concerning Judge X were formally incorrect and rendered proceedings with her participation null. This undermined any suggestion that the legal environment in The State made such objections effectively impossible.

On this analysis, the Court concluded that the Respondent’s situation did not fall within the limited exceptions it had identified. He could have raised the challenge in the State of origin and did not do so, and no specific circumstance was shown that made it too difficult or impossible to use the remedies available there. Accordingly, applying the principles of mutual trust, the exceptional nature of public policy as a bar to recognition, and the requirement to exhaust remedies in the State of origin, the Court held that the Respondent is precluded from now raising, in Irish recognition proceedings, the contention that Judge X’s secondment was unlawful.

Finally, the Court recorded its agreement with a separate judgment delivered by another member of the Supreme Court (referred to as Judge 2) that, for the reasons given in that judgment, the secondment of Judge X did not, in any event, affect the validity or enforceability of the judgment of the Court of Appeal in The City. In addition to that reasoning, Judge 1 disposed of this aspect of the appeal on the independent ground of the Respondent’s failure to raise the issue in the State of origin.

Holding and Implications

Holding: In relation to the issue addressed in this judgment, the Supreme Court held that the Respondent cannot rely on Article 45(1)(a) of the Recast Regulation to resist recognition in Ireland of the orders of the Court of Appeal in The City on the basis of Judge X’s secondment. The Court found that:

• the Respondent was in a position to challenge Judge X’s participation before the Court of Appeal in The City but chose not to do so;
• no sufficient evidence was provided that it was too difficult or impossible to raise such a challenge in the State of origin; and
• in accordance with the Recast Regulation and CJEU case law, parties must ordinarily exhaust legal remedies in the Member State of origin before invoking public policy in the enforcing State.

Judge 1 also agreed with the reasoning of Judge 2 that Judge X’s secondment did not in fact undermine the validity or enforceability of the foreign appellate judgment. The judgment thus rejects the Respondent’s public policy challenge based on the composition of the foreign appellate bench. The text provided does not state the overall final disposition of the appeal beyond this specific aspect.

Implications: The decision confirms that, under the Recast Regulation:

• the public policy ground in Article 45(1)(a) is to be applied restrictively, and
• courts in the Member State addressed will generally refuse to entertain public policy objections that could have been, but were not, raised through available remedies in the Member State of origin, including objections to the composition of the tribunal.

The immediate effect is that, so far as this issue is concerned, the Respondent may not use alleged defects in Judge X’s secondment as a basis to block recognition of the Court of Appeal’s orders in this jurisdiction. The judgment operates within the existing framework of the Recast Regulation and does not purport to establish a new general doctrine beyond clarifying and applying the principles of mutual trust and exhaustion of remedies in the specific context presented.