La Caisse Regional Du Credit v Ashdown

This is an appeal from the decision of Tugendhat J. When I looked at the application for permission to appeal on paper, the matter struck me as reasonably straightforward. An application had been made to register two judgments obtained in France, that application being made under the Civil Jurisdiction and Judgments Act 1982. Those judgments have been registered by Master Fontaine without a hearing, as of course is standard practise when seeking registration under that statute.

Mr Ashdown, in relation to whom the judgment had been registered, appeals, as he is entitled to do. He took the point in relation to one of the judgments that it had not been mentioned in the application and was thus not a judgment that should have been registered. In relation to the other, he took a more substantial point that the judgment was not “enforceable” against him in France and therefore should not have been registered.

Tugendhat J rejected the point relating to whether the judgment had been mentioned in the application, and he dismissed the appeal in relation to that judgment which was for the sum of 2000 Euros, in relation to which Mr Ashdown had been condemned in certain criminal proceedings. In relation to the other aspect, he held on the evidence he had on French law that it was not “enforceable” in France.

A few days after the judgment was given, a certificate arrived in the hands of the lawyers representing the bank who were the holders of these judgments and that certificate was dated 12 March, two days prior to that hearing. That certificate certified that the decision is “enforceable” in the original member state against Clive Ashdown, and then it gave details of where he was born and where his address was. Thus, it was that the bank launched an appeal against the decision of the judge who had set aside the Master’s registration of the judgment and sought to put in this certificate as fresh evidence. We allowed that certificate to go in, explaining as we did so that it did not seem to us that it necessarily resolved what was the real issue between the parties. It certainly seems to me, and I think to my Lord, Lord Justice Keene, that the judgment of the French court was “enforceable” against Mr Ashdown.

The real critical question was: what did that word “enforceable” mean? There is little doubt that there is a difference in the use of language in the judgment of the French court. The English translation faithfully reflects that difference. The French court judgment reads as follows:

“[It] declares that Clive Ashdown alone is responsible for the prejudice suffered by [the bank]

“Fixes the amount payable to [the bank] by Clive Ashdown at 212,593.97 Euros.

“It condemns Clive Ashdown to pay the Plaintiff’s legal fees.”

The use of the word “condemns” in relation to the legal fees reflects the language also used in relation to the judgment on which the judge maintained the registration, under which Clive Ashdown was “condemned to pay the sum of 2000 Euros to the bank”. What of course the bank is seeking to suggest is that by the use of the word “enforceable” it has obtained a judgment which is a money Judgment, which it can enforce by putting in the Bailiffs or such other process of execution, the judgment being treated as a money Judgment against Mr Ashdown.

What Mr Ashdown is seeking to argue is: no, this is not a money Judgment. It is simply a sum of money, fixed as a sum that he owed the bank, but which should be treated as fixing that sum only for the purpose of his liquidation. On the evidence we have it is not possible to be clear whether the judgment is an enforceable money Judgment or whether it is simply the fixing of a sum relevant to the liquidation, as Mr Datta on behalf of Mr Ashdown submits that it is.

Speaking for myself, it would seem to me that ultimately this judgment, whatever it means, is a registerable judgment in the sense that it is a judgment of the French Court and it is enforceable against Mr Ashdown. But it could be enforceable in either of the two senses of the word: either in the sense that the bank would prefer it to be or in the sense that Mr Datta has submitted on the French law evidence that it is.

It would not be very sensible simply to register the judgment and leave the questions as to what the nature of its enforceability is to some argument with those who seek, as the bank would, to enforce it as a money Judgment. The right course, it seems to me, is to put oneself in the position of the Master, who might have had this issue identified before her, and ask oneself what the appropriate approach would have been of the Master. The appropriate approach would seem to me to be for the Master to have said, well I am not prepared to register this judgment at this stage without further clarification from the French Court as to whether this is a judgment that could have been enforced as a Money Judgment or whether it is a judgment which would be enforced simply as fixing the sum in the liquidation. The Master would in those circumstances have adjourned the matter until evidence was provided as to precisely what this judgment meant as a matter of French law.

The Master might have contemplated being provided with expert evidence on each side, but if the process in France allows an application to be made by the bank (notifying Mr Ashdown of the application) to the Court of Appeal in Douai (the court that gave the judgment of 6 April 2004), to seek a clarification as to whether the judgment is a Money Judgment which it can enforce against Clive Ashdown or whether it is simply a judgment which fixes the sum for the purposes of the liquidation then that, as it seems to me, would be the most sensible course for the parties to take.

Thus it seems to me that the appropriate form of order in this court, having allowed in the fresh evidence, is to set aside the judgment of Tugendhat J and equally, at this stage, to set aside the order of Master Fontaine and make the order that the Master in these circumstances would have made if she had been aware of the problem, and adjourning the question of whether this judgment should be registered until there is clarification in the way that I have sought to identify.

The matter in those circumstances should be remitted back to the Master so that the matter can be dealt with once the further evidence has been obtained.

I agree both with my Lord, Lord Justice Waller’s judgment and with the form of the order which he proposes.