The London Steam-Ship Mutual Insurance Association Ltd v The Kingdom of Spain (M/T PRESTIGE)

This judgment relates to an appeal by the London Steam-Ship Owners’ Mutual Insurance Association Ltd (‘the Club’), against the ex parte registration order of Master Cook dated 28 May 2019 (‘the Registration Order’), made pursuant to Article

The Registration Order relates to an order of the Provincial Court of La Coruña (‘the Provincial Court’) dated 1 March 2019 (‘the Spanish Judgment’). The Spanish Judgment was made following criminal and civil proceedings in which the Spanish courts found the Club liable, up to a USD 1 billion global policy limit, for damages arising out of pollution following the total loss of the M/T ‘Prestige’ (‘the Vessel’) off the coast of Spain in November 2002.

The Club is a mutual insurance association providing Protection and Indemnity

The Kingdom of Spain, which I will call ‘the Spanish State’ or ‘Spain’, is a sovereign state. It was a claimant in the Spanish proceedings to which I have referred.

The contract of insurance in respect of the P&I cover for the Vessel was evidenced by a Certificate of Entry whereby the Club agreed to provide P&I cover for the Owners and Managers of the Vessel in respect, inter alia, of pollution liabilities up to a maximum aggregate amount of USD 1 billion any one occurrence. This contract of insurance was subject to the Club’s Rules of Class 5 – Protecting and Indemnity (the ‘Rules’), which contained a ‘pay to be paid’ clause in the following terms (Rule 3.1):

The Rules also contained an English law and London arbitration clause as follows: ‘43.2 … if any difference or dispute shall arise between a Member and the

In addition, the Club acted as the Owners’ insurer in respect of the Owners’ liabilities under the International Convention on Civil Liability for Oil Pollution Damage 1969

In November 2002, the Vessel was on a voyage from St Petersburg to the Far East carrying 70,000 mt of fuel oil. She suffered damage from a storm surge and began to list significantly. A distress call was sent to the Spanish authorities, but salvage attempts over the following days were unsuccessful. On 19 November 2002, the Vessel broke in two and sank. The resulting oil spillage caused significant pollution damage to the Spanish and French coastlines.

In late 2002, criminal proceedings were commenced in Spain against the Master of the Vessel, Apostolos Mangouras, as well as against its Chief Officer and Chief Engineer, and against Mr Lopez Sors, the Spanish official who was responsible for handling the immediate aftermath of the casualty and who ultimately ordered the Vessel to sail away from the coast, which was alleged to have resulted in more widespread damage to coastal areas than would otherwise have been the case.

The first stage of Spanish criminal proceedings is the fase de instrucción

In 2010, at the conclusion of the investigation stage, the case proceeded to the oral proceedings phase before the Provincial Court. The Master was charged, inter alia, with the offence of serious negligence against the environment under Arts. 325 and 331 of the Spanish Penal Code 1995 (the ‘CP’) and the offence of disobedience to the authorities. Civil claims were also brought by various parties, including the Spanish State, against the Master and crew, the Owners, the Managers and the Club. The civil and criminal actions were tried together.

By the end of the trial, the quantum of the claims brought by the State Lawyer and the

The Club’s position was (and is) that the non-CLC direct action claims against the Club in the Spanish Proceedings are in substance claims to enforce the terms of the contract of insurance between the Club as insurer and the Owners/Managers as the insureds. Accordingly, so the Club contends, insofar as the Spanish State is entitled to recover from the Club, it is bound by the terms of the contract of insurance. Specifically, the Club’s position was (and is) that pursuant to the London arbitration and English law clause the parties were bound to submit the non-CLC claims to London arbitration governed by English law, and that the parties were bound by any contractual defences available to the Club, including any defence based on the ‘pay to be paid’ clause. The Club has always contended that upon the proper application of the ‘pay to be paid’ clause, it has no liability to the Spanish State. The Club has also always maintained, and this has been generally accepted, that the parties are bound by the financial limit contained within the policy, ie USD 1 billion, and that insofar as there is any liability it is so limited.

Consistently with this, in January 2012, the Club commenced London arbitration proceedings seeking declarations that the Spanish State was bound by the arbitration clause and that, in accordance with the contract of insurance, the Club was not liable. Mr Alistair Schaff QC was appointed sole arbitrator in the reference. The Spanish State was invited to participate, but did not take part.

By an Award dated 13 February 2013, with Reasons, (the ‘Award’), Mr Schaff QC upheld many of the Club’s claims for negative declaratory relief in respect of nonCLC liability, granting relief in the following terms:

By an arbitration claim form issued in March 2013, the Club sought permission pursuant to s. 66 Arbitration Act 1996 (‘the AA 1996’) to enforce the Award as a judgment and/or to have judgment entered in its terms. The Spanish State resisted enforcement under s. 66, on the basis that the arbitrator had lacked jurisdiction and it sought relief from the court in the form of orders setting aside the Award and/or declaring the Award of no effect pursuant to ss. 67 and/or 72 of the AA 1996. Spain also claimed state immunity from the Court’s processes in relation to the s. 66 application.

The ss. 66/67/72 AA 1996 applications were heard by Hamblen J over the course of a seven-day hearing in October 2013. On 22 October 2013 Hamblen J handed down judgment on the applications (The Prestige (No. 2) [2014] 1 Lloyd’s Rep 309). Hamblen J granted the s. 66 relief and rejected the ss. 67/72 applications. He also held that Spain was not immune by reason of s. 9 of the State Immunity Act 1978, but rejected the Club’s argument that Spain had lost immunity by submitting to the English Courts. By an Order and Judgment of the same date, the Court declared:

Hamblen J gave Spain permission to appeal on certain issues.

On 13 November 2013, following a lengthy trial, the Provincial Court handed down its judgment. In summary, the Provincial Court acquitted the Master of the offence of serious negligence against the environment but found him guilty of the offence of disobedience. As to civil liability, the Provincial Court held that the Master’s disobedience had not caused the loss, and accordingly civil liability could not be imposed on the Master or, it followed, on the Owners or the Club. The Provincial Court acquitted the other defendants of all charges.

In 2014, the Master appealed against his conviction for disobedience, by way of a recurso de casación [cassation appeal] before the Spanish Supreme Court (Criminal Chamber). A number of parties, including the Spanish State, appealed against the acquittal of the Master for the other alleged offences.

Between 20 and 22 January 2015, the Court of Appeal heard the appeals from Hamblen J in relation to the ss. 66/67/72 applications. The appeals were fully contested. On 1 April 2015, the Court of Appeal upheld the order of Hamblen J (The Prestige (No. 2) [2015] 2 Lloyd’s Rep 33). The Court of Appeal concluded, in addition to the points found by Hamblen J, that Spain had lost state immunity because it had submitted to the English court’s jurisdiction. I will refer, for the sake of convenience, to Hamblen J’s Order of 22 October 2013, and the Court of Appeal’s Order of 1 April 2015, together, as ‘the English Judgments’.

On 29 September 2015, the Spanish Supreme Court (‘the Supreme Court’) heard the various appeals against the Provincial Court’s decision. On 26 January 2016, the Supreme Court handed down judgment (which was dated 14 January 2016). By way of summary:

On 19 February 2016, the Master lodged a nullity petition with the Supreme Court which challenged the legality of the Supreme Court’s decision on the basis that it was in breach of his constitutional or fundamental rights under the Spanish Constitution and Article 6 and Article 1 of the First Protocol (‘A1P1’) to the European Convention on Human Rights (the ‘ECHR’). On 11 April 2016, the Supreme Court dismissed the nullity petition.

On 20 May 2016, the Master lodged an amparo application to the Spanish

In the meantime, following the Supreme Court’s judgment on the cassation appeal, the civil claims returned to the Provincial Court for a determination of quantum in respect of the liability of the Master, the Owners and the Club. The Club served writs in these quantum proceedings. It contends that it did so without prejudice to and reserving all its rights relating to the arbitration agreement, any rights already established and any future rights and for the purpose only of mitigating its losses flowing from Spain’s failure, as it says, to adhere to its obligations under the contract of insurance, the Award and the English Judgments.

On 28 July 2017, the Master filed an application with the European Court of Human Rights (‘the ECtHR’), claiming that Spain had breached his human rights. In summary, the Master argued that the Spanish courts had acted in violation of Article 6 ECHR by the Supreme Court’s overturning his acquittal and reaching new factual findings without hearing from him and/or the many other witnesses in the case and/or by the Spanish courts’ having refused to allow him to participate in certain investigations and/or refusing to disclose the results to him and/or having acted in violation of A1P1 to the ECHR by declaring him civilly liable for the loss.

On 15 November 2017, the Provincial Court issued a judgment on quantum (subsequently rectified by an order dated 11 January 2018). The Provincial Court found the Master, Club and Owners liable in respect of 272 parties, in amounts in excess of EUR 1.6 billion. It accepted that, pursuant to the Supreme Court’s first appeal judgment, the Club’s liability was subject to the global limit of USD 1 billion.

In the meantime, on 18 January 2018, the ECtHR wrote to the Master’s representatives informing them that a single judge (proposed by Andorra) had declared the Master’s application inadmissible. The letter enclosed a decision letter which stated:

On 5 February 2018, the Master’s representatives wrote to the ECtHR seeking to challenge the inadmissibility decision on the bases that: (a) it was an obvious mistake, as there were numerous cases in which the ECtHR had made findings of violations by Spain in materially identical circumstances; and (b) the Andorran judge should not have considered the admissibility application, given the close links between Spain, France and Andorra, which gave rise to an obvious risk of bias or appearance of bias or conflict of interest. On 26 March 2018, a lawyer at the ECtHR wrote to the Master’s representatives stating that the ECtHR does not provide any appeal against a decision on inadmissibility and that the decision to declare the application inadmissible was final.

On 8/14 November 2018, the Master lodged a Complaint against Spain with the UN Human Rights Committee (‘the UNHRC’), alleging that Spain had violated its international treaty obligations under the International Covenant on Civil and Political Rights (the ‘ICCPR’). The Complaint was that the Master’s fair trial rights had been breached by the Supreme Court’s finding the Master guilty without the possibility of a full review of that conviction on appeal, as well as raising similar arguments to those which had been made in the Strasbourg application. On 28 September 2020 the UNHRC issued its decision on the admissibility of the Master’s application. The UNHRC held that the Article 14(5) ICCPR complaint was admissible, but that the complaints corresponding to the matters that had been the subject of the Strasbourg application were inadmissible. The UNHRC made the latter decision on the basis of its jurisprudence that it is required to declare an application inadmissible if the ECtHR has found a similar application inadmissible for reasons that involved a consideration of the merits.

On 1 March 2019, the Provincial Court issued the Spanish Judgment, setting out the amounts the claimants were entitled to enforce against the defendants in the proceedings. The Court ordered that the Spanish State was entitled to seek enforcement up to EUR 2,355,015,655.69, subject in the case of the Club to the insurance policy limit of USD 1 billion, which the Court declared to be a global limit in the sum of EUR 855,493,575.65 (being the Euro equivalent of USD 1 billion, less EUR 22,777,986 being the value of the CLC Fund deposited by the Club on 29 May 2003).

On 26 March 2019, Spain issued a Part 23 application seeking to enforce the Spanish

On 25 October 2019, this appeal was transferred, by consent, to the Commercial Court. Between March and October 2020, the parties exchanged factual and expert evidence in relation to the appeal. On 3 November 2020, Spain filed an application seeking references to the CJEU on a number of issues which fell to be determined at the hearing of the appeal.

It is convenient here to set out the most relevant terms of the Regulation.

The Club’s case on this appeal was that recognition and enforcement of the Spanish Judgment should be refused and that the Registration Order should be set aside for one or both of two main reasons, namely:

For reasons which I gave in my judgment on 18 December 2020, at the conclusion of the hearing, I consider that it is necessary for the purposes of giving a concluded judgment in this appeal to decide certain questions relating to the interpretation and effect of the Regulation on which it is expedient that there should be rulings from the CJEU. I accordingly made a reference to the CJEU of the following questions:

By order of Males LJ of 5 March 2021, the Club has been given permission to appeal against my order making a reference of these points to the CJEU.

I did not, however, make a reference of a question relating to the Club’s argument that recognition would be contrary to English public policy because the Spanish Judgment involved a breach of human and fundamental rights. The determination of that question will not be affected by answers given on the questions which are the subject of the reference, if a reference proceeds, or by any determination of the Court of Appeal on the issue of whether there should be a reference. I consider that it is appropriate and desirable that I should deliver judgment in relation to that issue. That is accordingly the subject of this judgment.

The Club contends that it would be manifestly contrary to English public policy to recognise and enforce the Spanish Judgment and that Article 34(1) of the Regulation applies because it would be contrary to fundamental human rights.

Before I deal with this point in detail, it is helpful to recall the way in which the public policy exception arises in the Regulation, and the guidance which has been given on its application by the CJEU.

Article 34(1) provides:

It is also necessary to recall the terms of Article 36, which are as follows:

The main principles applicable to the application of the Article 34(1) exception were summarised by the CJEU in Diageo Brands BV v Simiramida-04 EOOD [2016] Ch

As those statements make clear, Article 34(1) has to be interpreted strictly, and it is a provision which will only be applicable in exceptional circumstances. It is further made clear that, while the content of public policy is a matter of domestic law, EU law (and thus the CJEU) sets the limits of public policy which are capable of being relevant for the purposes of Article 34(1). The test is whether recognition would ‘constitute a manifest breach of a rule of law regarded as essential in the legal order of the state in which recognition is sought or of a right recognised as being fundamental within that legal order.’ There may not be a review of the substance of a decision of a court of another Member State. It is also clear that a party is expected, in principle, to seek to use all the legal remedies available to it in the court of origin, save where circumstances render it too difficult or impossible to do so.

The ECJ has further made it clear that amongst the fundamental rights breach of which might constitute a ground of public policy capable of bringing Article 34(1) into operation are certain human rights and fundamental freedoms. In Bamberski v Krombach [2001] QB 709, the Court said at [25]-[27]:

One aspect of the general approach to issues under Article 34(1) which was the subject of some debate before me was as to what is meant by the requirement that any breach should be manifestly contrary to public policy.

The word ‘manifestly’ was deliberately added in the Regulation to what had been the text in the Brussels Convention. This was explained in the Opinion of AG Szpunar in Diageo (at para. 42), where he said:

Spain argued that the word ‘manifestly’ entailed that the breach must be ‘obvious, unmistakable and indisputable’. The Club disputed that the breach must be ‘obvious’ in the sense that argument or analysis is not required. It submitted that the word emphasised the gravity and importance of the breach; it did not rule out analysis. The Club suggested that there might well be cases where considerable investigation was necessary, which once undertaken revealed a grave violation of public policy: for example judgments procured by bribery or corruption.

I accept the Club’s argument that the word ‘manifestly’ cannot rule out a sufficient investigation of the facts to understand the nature of the violation of public policy contended for. But what ‘manifestly’ does emphasise is that, when there has been such investigation, it must be apparent that the judgment is ‘plainly or obviously contrary to public policy’ (as it was put by Patterson J in Laserpoint Ltd v Prime Minister of Malta [2016] EWHC 1820 (QB) at [60]), or that it must be ‘obvious that public policy dictates refusal [of enforcement]’ (as it was put by Cooke J in Smith v Huertas [2015] EWHC 3745 (Comm) at [16]). If there is room for serious argument as to whether public policy was contravened (either because it was seriously debatable as to what public policy was or as to whether the judgment contravened it) then it would be most improbable that it could be said that enforcement was manifestly contrary to public policy.

The Club contends that there were violations of fundamental rights of the Master, of the Owners and of the Club in four respects, as follows:

The first violation contended for by the Club is a contravention of Article 14(5) of the ICCPR, which provides:

The ICCPR, though signed by the United Kingdom, has not been incorporated into the UK’s domestic legislation. The UK is not a signatory to the Optional Protocol to the ICCPR, according to which States recognise the competence of the UNHRC to receive and consider complaints from individuals.

The Club refers to the fact that the Master was convicted of a crime against the environment for the first time in the Supreme Court proceedings. It submits that his only ways of challenging that conviction were either a nullity application to the Supreme Court, which was not a higher tribunal, or an amparo appeal to the Constitutional Court which was limited to alleging breaches of constitutional rights and was in any event subject to an admissibility test as to whether an issue of special constitutional importance or relevance arose. In the event, the Master’s amparo application was dismissed without consideration of the merits because the Constitutional Court considered that the case did not raise any issue of sufficient constitutional importance. The Club contends that the present case is therefore indistinguishable from earlier cases in which Spain has been found by the UNHRC to be in breach of Article 14(5) of the ICCPR, including Gomariz Valera v Spain (Communication No. 1095/2002), and Moreno v Spain (Communication No. 1381/2005).

In my judgment the alleged contravention of Article 14(5) ICCPR is not a basis for refusal of enforcement of the Spanish Judgment. I have reached this conclusion for three reasons.

In the first place, I do not consider that Article 14(5) represents 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.

The starting point is that Article 14(5) is not part of English law. In Higgs v Minister of National Security [2000] 2 AC 228, giving the judgment of the majority of the Board of the Privy Council, Lord Hoffmann explained the position of international law in domestic courts (at 241):

In Belhaj v Straw [2017] AC 964 at [123] Lord Neuberger said:

In accordance with these principles, it does not follow from the fact that the UK has entered into commitments in the ICCPR that there is a principle of fundamental justice which forms part of English public policy in the terms of Article 14(5) thereof. Equally, the English court cannot construe Article 14(5) of the ICCPR, or use it to create domestic rights, for example a right not to have a foreign judgment enforced. While Article 14(5) is no doubt part of the material which may influence the content of English public policy, it does not itself constitute it. Here the Club pointed to no basis on which a rule in the precise terms of Article 14(5) could be said to be a fundamental principle other than the fact that the UK has acceded to the ICCPR.

It is true that in English domestic law, there cannot be convictions on appeal in criminal matters. But that equally does not establish that there is here a fundamental rule of public policy which means that no conviction anywhere should be recognised if it was made on an appeal. In this context it is significant that Article 6 of the ECHR does not itself require Contracting States to have courts of appeal or of cassation even for criminal matters. It might therefore be the case that a conviction in a foreign court was given in compliance with Article 6, but where there was no right of appeal. I do not consider that it would necessarily offend English public policy to recognise a judgment based on such a conviction.

The point is thrown into sharp focus in this case by the fact that Article 2 to the Seventh Protocol to the ECHR is not in the same terms as Article 14(5) of the ICCPR. It provides:

Thus, under the Seventh Protocol there is an express provision for an exception to a right to a review when there is a conviction following an appeal against acquittal. Spain has both signed and ratified the Seventh Protocol, as have many other States. I find it impossible to accept that it would be contrary to English public policy to allow the recognition and enforcement of a judgment which was based on a conviction in the courts of a State party to the Seventh Protocol, and in full compliance with it and Article 6, simply on the basis that there was no compliance with Article 14(5) of the ICCPR.

Moreover, even if it could be said that Article 14(5) formed a fundamental part of English public policy, I do not consider that it would qualify as a relevant public policy for the purposes of Article 34(1) of the Regulation in that it would not be regarded for the purposes of the CJEU jurisprudence, which I have summarised above by reference to Diageo, as falling inside the limits within which the member states may have recourse to the public policy exception. In the situation hypothesised, it would be regarded in English courts as a fundamental matter of public policy that there should be compliance with Article 14(5) of the ICCPR while many other

The second reason relates to the fact that the Club’s complaint is of breaches of a right or safeguard conferred on someone convicted of a criminal offence. In the present case, that is a right of the Master, not of the Club. The Club was not charged with a criminal offence, and it was only a civil liability which was established against it by the decision of the Supreme Court. Even if it were right that it is manifestly contrary to English public policy to recognise and give effect to a criminal conviction which arose when there had been non-compliance with Article 14(5) of the ICCPR, I do not consider that the same would apply to a civil liability on an insurer such as that found by the Supreme Court.

The Club was involved in the Spanish proceedings as a ‘civilly liable person’. Spanish law has a procedure whereby two separate actions stemming from criminal conduct can be brought together, namely the criminal and the civil, and they will be allocated to the criminal court which has competence to hear the criminal charges. This is ‘for reasons of procedural economy (and only for this reason)’ (Ureña 3^rd report, paragraph 10). As explained by Mr Ureña in his first expert report, the civil action in criminal proceedings is governed by civil laws (paragraph 27). Further, any civil liability ‘does not arise from the criminal offence, but from the damage caused by the said offence (if an offence does not cause damage, there will be no finding of civil liability, so that not all offences necessarily give rise to civil liability)’ (paragraph 29). The basis on which the Club was found liable was that the Master, because his conduct was found to have been seriously negligent, was, in addition to being criminally liable, civilly liable because that conduct was civilly unlawful; the Owners were ‘subsidiarily’ (or vicariously) civilly liable for the Master; and the Club was civilly liable as the Owners’ insurer (paragraphs 33-35).

The Supreme Court emphasised in its judgment (p. 130 of the translation):

In my judgment, it has not been shown to be manifestly contrary to English public policy to enforce a judgment for a civil liability where that liability is established for the first time on an appeal, even if there were no appeal available from that finding. I was shown no material which indicated that it is a fundamental feature of English public policy that there must be an appeal from a finding of civil liability, and it is not hard to contemplate situations in the English legal system where a finding of civil liability is first made on an appeal from which there is no possibility of an appeal.

The Club’s argument based on Article 14(5) of the ICCPR arises only because, under the Spanish system, the criminal and civil cases were dealt with together. It appears to me, however, that it would have been possible under other systems for the question of whether there was civil liability on the part of insurers of Owners for the negligence of their servant to have been dealt with in separate civil proceedings, and for there to have been a finding of such liability on appeal. Given that, it does not seem to me possible to say that it is manifestly incompatible with English public policy to permit the enforcement of the Spanish Judgment by reason of any noncompliance with Article 14(5) of the ICCPR as regards the Master’s criminal conviction.

Thirdly, the Club did not appear in the Spanish proceedings at the liability stage. It accordingly neither contested the civil liability which it was found to be under by the Supreme Court, nor sought to avail itself of any remedies available to it to challenge any breaches of its own rights which that finding may have involved. (Footnote: ¹) In those circumstances I consider that the Club cannot be said to have availed itself of all the legal remedies made available in the member state of origin to prevent the relevant liability. There is no material which would rebut the strong presumption, which flows from the principle of mutual trust, that the Spanish courts’ process in adjudging on civil liability such as the Club’s, complied with the Club’s human and fundamental rights. In consequence Article 34(1) of the Regulation is not available as a reason for refusal of enforcement, in accordance with the principle expressed in Diageo paragraph 64.

The Club’s second main basis for contending that there was a violation of fundamental rights was a contention that the Master’s conviction on appeal was on the basis of new findings of fact by the Supreme Court, made without hearing from the Master or relevant witnesses.

The fundamental rights which the Club contends were violated in this way are rights under Article 14(1) and (3) of the ICCPR, Article 6 of the ECHR and Article 47 of the EU Charter, for an accused to be heard and to put forward a defence. An aspect of those rights is that an accused must be heard in any case where the court is considering matters of fact in deciding whether to convict the accused. The Club referred in particular to the Strasbourg jurisprudence in relation to Article 6 of the ECHR which has held that in appeals against acquittals, where an appellate court is called upon to examine a case as to the facts and the law, and to assess the applicant’s guilt or innocence, it cannot properly determine those issues without a direct assessment of the evidence of the accused, and possibly of other witnesses, given in person. The Club made reference to Ekbatani v Sweden No. 10563/83; Lacadena Calero v Spain No. 23002/07; and Gomez Olmeda v Spain No. 61112/12. The Club also referred to Suuripää v Finland No. 43151/02 as showing that the facts and their legal interpretation can be intertwined to an extent that makes it difficult to separate

There was no dispute that Spanish law is intended to protect these fair trial rights.

These limits on the ambit of a permissible review on appeal, including the effect of the Strasbourg jurisprudence, were emphasised by the Supreme Court itself in the decision of 14 January 2016 of which complaint is made in this case: Legal Grounds 1-6. The Supreme Court stated, in part:

The Club contends that, despite these statements, the Supreme Court did not comply with the limitations which it had set out, but in fact made new factual findings in relation to a number of matters. In particular it arrived at a different conclusion in relation to whether there was serious negligence, which, the Club says, required a reassessment of matters which were not purely legal; and also re-evaluated findings on causation, which involved factual issues. The Club points specifically to what it contends were new factual findings as to: (i) the alleged slight overdraught of the Vessel; (ii) the defect in the Vessel’s automatic control system; (iii) the defect in the Vessel’s heating coils; (iv) the causal relevance of the Master’s disobedience; (v) the causal relevance of the delay in evacuating the Vessel; and (vi) whether or not the casualty was foreseeable.

Despite the elaborate argument, and extensive expert evidence devoted to this issue by the Club, I consider it clear that these complaints do not found a ground for refusal of enforcement of the Spanish Judgment under Article 34(1) of the Regulation. My reasons are as follows.

In the first place, as with the previous ground, what the Club is seeking to rely on is alleged violations of rights conferred on a defendant to a criminal charge, and specifically on the rights of the Master. It is not relying on its own rights, nor does it point to the rights of a party to civil proceedings, or to a contravention of its own rights in the Spanish proceedings. The rule as to not making new factual findings on appeal does not apply to civil proceedings in Spain. (Footnote: ²) No basis has been put forward on which it can be said to be manifestly contrary to English public policy to enforce a civil judgment where, on appeal, there has been a reassessment of the facts without hearing from the defendant again. Furthermore, the Club did not assert any rights it had itself, and it took no steps to seek redress for contravention of any such rights in Spain. For those reasons alone I consider that the Club fails to show that the points made under this heading show that it would be contrary to public policy to enforce the civil judgment against the Club.

Secondly, the complaints now made have already been considered and rejected, including by the ECtHR. I consider that this precludes successful reliance on them for the purposes of resisting enforcement under Article 34(1). In order to explain this it is necessary to say more about the challenges which have already been made.

Thus, the complaints about the making of new findings on appeal were raised in the Master’s nullity petition to the Supreme Court, which was lodged on 19 February 2016. It set out the ECHR jurisprudence and raised all the grounds which the Club now points to as new factual findings or evaluations by the Supreme Court. The Supreme Court rejected that petition, on the basis that there had not been new factual findings. The Master’s amparo application to the Spanish Constitutional Court raised the same points, and was declared inadmissible. Significantly, thereafter, the Master filed an application to the ECtHR which raised the same points as to new findings of fact having been made on appeal. The application was made by the same firm of Spanish lawyers as have represented the Club in the Spanish proceedings since 2017. The application was declared inadmissible, as not disclosing any appearance of a violation of the rights and freedoms set out in the ECHR or the Protocols thereto, by Judge Vilanova on 11 January 2018. The lawyers representing the Master protested that that decision was obviously wrong, and that Judge Vilanova, because Andorran, should have recused himself given the risk of bias or the appearance of bias. The ECtHR responded that its decision was final. The Master’s lawyers asked for this to be reconsidered. It was not.

The material before me includes a letter from the Registrar of the ECtHR to the Spanish Minister of Justice dated 15 May 2019 which explains the procedures in relation to single-judge decisions of the ECtHR. Part of that letter was as follows:

The Master also filed a communication with the UNHRC which alleged inter alia the same violations in relation to new findings of fact made on appeal. Again, the Master was represented by the firm of Spanish lawyers who represented the Club. The UNHRC has found those allegations which have been considered and dismissed by the ECtHR, including the allegations as to new findings on appeal, to be inadmissible, on the basis that there has been a consideration, albeit limited, of the merits of the case by the Strasbourg Court, such that in accordance with Article 5(2)(a) of the Optional Protocol to the ICCPR the UNHRC must therefore decline jurisdiction.

Thus exactly the same allegations of violation of the Master’s fair trial rights have been the subject of examination by the Spanish Courts and by the ECtHR. The decision of the ECtHR is, specifically, one which the court has to take into account pursuant to s. 2(1)(a) of the Human Rights Act 1998 (the ‘HRA 1998’).

The position in this case is therefore materially the same as that considered in Smith v Huertas [2015] EWHC 3745 (Comm), where Cooke J was dealing with an objection to enforcement based on Article 34(1) of the Regulation by reason of alleged breaches

Applying the approach indicated by these paragraphs, at [34]-[35] Cooke J rejected a complaint as to unfairness by reason of the duration of the investigation and the proceedings because the French courts had grappled with this point themselves, and the ECtHR had rejected an application made on the self-same basis. As Cooke J put it, ‘The point has been decided against [the applicant]’. At [36]-[37] Cooke J took the same approach in relation to a complaint that the juge d’instruction had not interviewed the applicant. The French courts and the ECtHR had decided this very point, and what the applicant was attempting to do in resisting enforcement was ‘to challenge the substance of these decisions’ (paragraph 37).

In the same way as in Smith v Huertas, I consider that the points which the Club seeks to make about violations of the Master’s fair hearing rights by reason of new factual findings are ones which have already been decided, adversely to the Club; and that the Club is now seeking to challenge the substance of the decisions to reject those complaints. While it is the case that the challenges in Spain and the ECtHR were made in the name of the Master, it seems quite clear that the Club was involved in those challenges, and probably funded them. In any event, the Club’s present complaint is that the Master’s rights were violated. If it can effectively rely on those rights at all, which in my judgment it cannot as set out in my first reason under this heading, it cannot avoid the consequences of the fact that these precise complaints have been raised and rejected by the courts which must be treated as the best place for them to have been raised and determined.

Thirdly, and in any event, I have considered the arguments made and expert evidence given as to whether new factual findings were made on appeal. It is clear to me that there is, at the least, a bona fide and significant argument that no new material factual findings were made by the Supreme Court. It is not a case where, on an examination of the case, it is plain or obvious that there has been a contravention of the Master’s fair hearing rights not to have new factual findings made on appeal.

Necessarily, my consideration of this point was informed by the expert evidence of Spanish law which the parties adduced. The evidence of Prof. Ortiz, which was given with authority and conviction, was that when the judgments of the Provincial and Supreme Courts were properly understood in the context of the relevant Spanish criminal and procedural law, it could be seen that the Supreme Court’s decision was not based on any new factual findings. That evidence, coming from a qualified expert, is itself of significance in considering whether there are any grounds for saying that the enforcement of the Spanish Judgment would be manifestly contrary to English public policy. Furthermore, Prof. Ortiz drew attention to a number of points to support his view, including the following:

These points demonstrate a reality and cogency of argument to the effect that there were no new material factual findings as to make this a case a long way from one where it is plain and obvious that fundamental rights have been infringed and that it would be contrary to public policy to recognise the judgment.

I have reached this conclusion notwithstanding that Spain effectively conceded that in one respect the Supreme Court did go beyond the factual findings of the Provincial Court, namely that in Legal Ground 29 the Supreme Court said that the overloading of the vessel ‘inevitably has an impact on the structure of the ship and its manoeuvrability’. I consider, however, that Spain is correct to say that the Supreme Court did not say, and it does not appear, that this ‘impact’ was regarded as critical to the court’s reasoning. The Supreme Court was not directly concerned with the cause of the casualty and the spill but with the creation of risk. On any view I do not consider that there was here a plain and obvious denial of the Master’s fair hearing rights.

I have also given careful consideration to the Club’s contention that the present case is similar to that in Botten v Norway, where it was held that a conviction on appeal for negligence in the performance of the defendant’s official duties was unfair, because there had been a reassessment by the appeal court of whether there had been carelessness without hearing the defendant. That was, however, a decision as to whether the particular proceedings were unfair. It is not easy to read across directly from that case to the present to conclude that there was a breach of the Master’s Article 6 rights, and Spain can in this context again point to the decision of the ECtHR dismissing the Master’s application as an indication that no breach was obvious to the ECtHR.

The third basis on which the Club contends that there was a violation of fundamental rights was that there had been an ‘inequality of arms’. This case was based on what the Club contended had been a failure and refusal of the Spanish courts to allow the Master or his experts to participate in certain underwater investigations of the wreck of the Vessel, and on what it contended had been the non-disclosure of material evidence arising out of those investigations.

The fundamental right that the Club contends was violated was that recognised in Article 14(3) of the ICCPR, Article 6 of ECHR and Article 47 of the EU Charter to an equality of arms, and of the defendant to have adequate facilities for the preparation of his or her defence. The Club pointed to the Strasbourg jurisprudence relating to

It is also established that violations of Article 6 may arise in relation to the nondisclosure of material evidence. The relevant principles here include:

The violations which the Club contends occurred in the present case fall into two categories: (i) the failure by the State Administration and/or the prosecution authorities to disclose to the Master and his representatives, all material evidence arising out of underwater investigations of the wreck, and by the Spanish courts to ensure proper disclosure of such evidence; and (ii) a failure to allow the Master to attend and participate in such underwater investigations.

In brief, there were two sets of expeditions to the wreck using the submersible SS ‘Nautile’. Spain employed IFREMER, the French Research Institute for Management of the Sea, to conduct a first expedition between December 2002 and February 2003. The reported purpose of this mission was initially to inspect and observe any leaks of oil and to seal any apertures or openings in the hull from which oil might be leaking. At least some of the dives were attended by Mr Francisco Javier del Moral Hernandez, a naval architect retained by the Spanish government. There were 36 dives. The Spanish Investigating Judge was not informed of the fact that this mission would take place of had taken place. It became known in the Spanish proceedings later, and photographs and videos from the mission were made available to the Master’s and Owners’ representatives in October 2009. A second Nautile expedition took place between 24 May and 6 June 2003. Ten dives were carried out.

In the period between July 2003 and September 2004 the Spanish State conducted four sets of expeditions to the wreck using the dive support vessel ‘Polar Prince’. On each of the expeditions remotely operative vehicles (‘ROVs’) were sent down. The main purpose of these expeditions was to remove the remaining oil from the wreck, but it was not in issue that various investigations of the wreck were conducted with the aim of attempting to determine the cause of the casualty. The first expedition was between 12 and 13 July 2003. The naval architect acting for Spain, Dr Charles Cushing, was in attendance, as were two other individuals on behalf of Spanish interests, Mr del Moral and Mr Francisco Alonso. The second expedition was between 19 and 23 August 2003, attended by Dr Cushing, Mr del Moral and Mr Alonso. A number of sample corrosion coupons were placed on the stern of the wreck, there were visual inspections of the wreck, ultrasonic thickness measurements (‘UTM’) were taken from 11 locations, further coupons were placed on the bow of the wreck, and sample strips were cut ‘for chemical analysis’. The third expedition was between

The Club contends that a variety of pieces of evidence deriving from or relating to these expeditions was not disclosed in the Spanish proceedings, and to a large extent it was common ground that it had not been. Thus the Club pointed in particular to: (i) videos or photographs from the second Nautile expedition, (ii) videos from the first Polar Prince expedition, (iii) Dr Cushing’s handwritten notes from the first Polar Prince expedition, (iv) Dr Cushing’s handwritten notes from the second Polar Prince expedition, including records of his visual inspections and the results of ultrasonic thickness measurements from 11 locations, (v) notes taken by Mr Zinger on the third Polar Prince expedition and other documentation relating to it, (vi) results of UTM measurements taken by the oil contractors in deciding where to cut hot tapping locations during the fourth Polar Prince expedition, (vii) notes or reports from Mr del Moral or Mr Alonso, and (viii) documents from the oil contractors or the Geographic Information System (GIS) database and ‘intervention map’.

It is the Club’s contention that the Spanish courts failed to remedy the violations of the Master’s rights constituted by these non-disclosures. The Master applied for disclosure of the results of the underwater investigations, but the applications were refused by the Provincial Court.

Furthermore, the Club contends that by reason of his not being informed of the Nautile expeditions and, as to the Polar Prince expeditions, by reason of having been refused permission by the Spanish courts to attend, the Master had not been given a reasonable opportunity to present his case.

Again, I do not consider that these matters provide a reason to refuse enforcement pursuant to Article 34(1).

Here, again, the Club is seeking to rely on rights afforded a defendant to criminal proceedings. It is not relying on rights accorded to a party to civil proceedings, such as it was itself. While parties to civil proceedings do have certain ‘equality of arms’ rights under Article 6, as was stated in Dombo Beheer B.V. v Netherlands App. No. 14448/88, [1994] 18 EHRR 213, at [32]:

As I have said, the Club’s case has not been put forward on this appeal as a breach of rights accorded in cases concerning the determination of civil rights and obligations, and no such breach has, accordingly, been established. Furthermore, as Spain has pointed out, the Club did not seek to assert or uphold any such rights in the Spanish proceedings, because it did not participate at the liability stage.

I thus do not consider that the Club has established any case of a breach of its own fundamental rights or those bestowed by Article 6 on an entity in its position. In those circumstances, English public policy is not, in my judgment, engaged by enforcement of the Spanish Judgment against it.

Secondly, once again, the alleged violations of the Master’s Article 6 rights that I have considered under this heading were raised both in the Spanish proceedings and in the application to the ECtHR, and dismissed. Thus, on 30 July 2012, the Master filed a writ asking the Provincial Court to annul the proceedings because of the violation of his fair trial rights by reason of his exclusion from the underwater investigations and the non-disclosure of material evidence. That petition was rejected

In line with the approach in Smith v Huertas these facts show that the current complaints have been considered by the courts best placed to evaluate them, and that it is not contrary to public policy to enforce a judgment where such complaints have been rejected by those courts.

Thirdly, and in case I am wrong as to the first two points, I have considered the complaints made to see whether there was here such a clear and serious contravention of fundamental principles of fairness in the Spanish proceedings that it can be said that English public policy dictates non-enforcement of the judgment because of that contravention. In performing this review, it seems to me necessary to consider not only the nature of the alleged breach of the principle of equality of arms, but also its materiality in terms of its importance to the outcome of the proceedings. While I recognise that it has been held in the Strasbourg jurisprudence that there may be found to be an infringement of fair trial rights without a showing of a quantifiable unfairness flowing from the irregularity, I do not consider that the question of whether Article 34(1) permits non-enforcement can be properly answered without an assessment of whether it has been shown that the alleged flaws in the procedure might well have made a difference to the result.

In my judgment, and with little doubt, none of the complaints made under this heading are such as to mean that Article 34(1) can be successfully invoked. I will deal in turn with the allegations as to non-disclosure of materials to the defence, and then with the complaint as to the Master not being permitted to participate in the underwater expeditions.

As to the former, the essential complaint is that more material from the underwater investigations and operations would have given a more complete picture as to the condition of the Vessel, and have allowed a more confident answer to be given as to Vessel’s structural conditions and state of maintenance. While the Club does not contend that any of the undisclosed evidence of which it is aware was in itself decisive, it says that an assessment of the state of the Vessel was an ‘iterative exercise of using building blocks to form an overall picture’, and that more material would have provided more building blocks. The Club emphasises that it cannot know what was never disclosed to it. But it points to the undisclosed measurements made during the second Polar Prince expedition, about half of which produced reasonably consistent measurements showing no significant diminution in thickness, and the other half showed a wider range only to be expected of areas of pitting, as indicating the type of way in which more of this material might have been helpful to the defence. It could have supported the Master’s primary expert case that the casualty was most likely caused by a giant wave, rather than by any failure to maintain the Vessel, and this would have formed an essential part of the background in the Provincial Court’s assessment of whether the Master’s actions constituted serious negligence.

Against this, however, are the following considerations.

In view of the matters referred to in the preceding paragraph, I do not think it can be said that there was any plain and obvious contravention of the Master’s Article 6 rights by reason of the Provincial Court’s not having ensured that all the materials from the underwater operations and investigations were disclosed to the Master and his representatives. It was not a plainly irrational or unfair approach for the Court to consider that, given that the missing material was not itself of the part which failed, given the other evidence available to it, and given that it could take into account that such materials were ‘known unknowns’, it was not essential that it should be disclosed.

Moreover, it is doubtful that further disclosure of this material would have made any significant difference. This is not only because it did not directly relate to the area which failed, but also because the likelihood of deficient maintenance of the Vessel being causative of the casualty would inevitably have been considered by comparison with the likelihood of any other cause. The primary alternative cause put forward in the Master’s experts’ reports had been the theory of the giant wave. That theory was considered improbable by the Provincial Court for reasons which would not have been affected by the undisclosed material (namely that it was not seen by anyone, not recorded, and had only affected one Vessel). It is also doubtful because of the way in which the Provincial Court and Supreme Court decided the case as a matter of law. Thus, while the Provincial Court proceeded on the basis that the casualty came about because of the inadequate maintenance and conservation of the Vessel, it found that the Master was not aware of and could not have been aware of serious deficiencies in the maintenance of the Vessel. The Supreme Court was bound by the Provincial Court’s findings of fact. Accordingly, as a matter of analysis, the state of maintenance of the Vessel was not directly relevant to the courts’ conclusions as to guilt or innocence.

As to the complaints that the Master and his experts were not allowed to participate in the underwater expeditions, I do not consider that there was here a contravention of his Article 6 rights. The ECtHR cases cited by the Club in this context, in particular Stoimenov v Macedonia (App. No. 17995/02), Yvon v France App. No. 44962/98, (2005) 40 EHRR 41 and Mantovanelli v France 21497/93, (1997) 24 EHRR 370, arose from significantly different situations. In this context it is significant that these complaints were included in the Master’s application to the ECtHR, which was dismissed, which can itself be taken as some indication that no breach of Article 6 was involved. In any event, it is far from clear, given the nature of the expeditions, which were not primarily forensic, that the presence of representatives of the Master would have meant that significantly more information was obtained, nor – for reasons I have already discussed – that more material from the underwater operations would have made any difference to the Provincial Court’s or the Supreme Court’s consideration of the case.

The last head of contravention of fundamental rights on which the Club argues that it can rely as founding a reason why the Spanish Judgment should not be enforced pursuant to Article 34(1) is that it contends that the Master’s, Owners’ and Club’s right to the peaceful enjoyment of their property, as protected by A1P1 of the

A1P1 provides as follows:

The Club contends that A1P1 is violated if the deprivation of property arises out of an unfair procedure. It contends that in this case there was an unfair procedure, and relies on the various violations of the Master’s fair trial rights for which it contends. These have been considered above. As I have concluded that there is no basis for the

In addition, the Club contends that the civil liabilities of the various defendants (Master, Owners and Club) were based on decisions which were arbitrary, manifestly unreasonable, and amounted to unlawful expropriations of their property and a flagrant denial of justice.

In relation to this aspect, the Club contends that A1P1 and Article 6 of the ECHR are violated where the domestic court’s substantive ruling was arbitrary or manifestly unreasonable. The Club cited Anheuser-Busch Inc v Portugal App. No 73049/01, (2007) EHRR 36, paragraphs 83-86), and, in the context of Article 6, Bochan v Ukraine (No. 2) App. No. 22251/08. Spain did not contest that A1P1 and Article 6 may be engaged by arbitrary or manifestly unreasonable decisions, but stressed the stringent nature of the test involved. It pointed to what was said by the Grand Chamber in Bochan v Ukraine (No. 2), at para. 62, as follows:

Spain referred to the fact that the context in which the question of violation of A1P1 arises is whether the Article 34(1) exception in the Regulation applies. It emphasises that the court has to consider the other provisions of the Regulation as well, and in particular Article 36, which provides that

The relationship between Article 34(1), and the provisions of Article 36 and 45(2) has been considered in a number of cases in the CJEU, including C-38/98 Renault v Maxicar and Formento [2000] E.C.R. I-2973, Bamberski v Krombach [2001] QB 709, especially at [37]-[38], Apostolides v Orams [2011] QB 519, especially at [60]-[61], and Meroni v Recoletos Ltd [2017] QB 85, especially at [41]-[42]. In Apostolides v Orams, at [60] what was said was:

In Meroni v Recoletos Ltd, the CJEU said this:

Against that legal background, I turn to consider in more detail the basis on which the Club contends that there was a contravention of A1P1 and Article 6 by reason of the alleged arbitrariness or manifest unreasonableness of the Spanish judgments.

The Club’s case is that when the Supreme Court proceeded, having found the Master criminally guilty of serious negligence, to make findings of civil liability, it made arbitrary or irrational findings as to the application of the CLC. What the Club contends is as follows:

I do not consider that Article 34(1) applies or that enforcement is to be refused on the grounds of a contravention of A1P1 or Article 6 by reason of the Supreme Court’s decision being manifestly unreasonable or arbitrary. This is for three reasons.

In the first place, I consider that the Club’s complaints in this area are an attempt to invite the court to review the substance of the decision of the Spanish court, which is impermissible under Article 36 and Article 45(2) of the Regulation.

The uncertainty in this area derives from the fact that, in the CJEU decisions which have considered the relationship between Article 34(1) and Article 36, it is stated that Article 34(1) may be applicable when there is an infringement ‘of a rule of law regarded as essential in the legal order of the member state in which recognition is sought or of a right recognised as fundamental within that legal order’. It can be said that A1P1, and the right under Article 6 not to be the subject of arbitrary or manifestly unreasonable decisions, constitute rights recognised as fundamental in England. That allows an argument, such as the one made by the Club here, that a foreign judgment should not be recognised because it was so badly wrong and lacking in basis that it was ‘manifestly unreasonable’. But that opens the door to the type of assessment of the substance of the decision of the foreign court which the CJEU has confirmed that Article 36 is designed to prevent. An attack on a foreign judgment would simply have to be framed as being that it was ‘manifestly unreasonable’ or ‘arbitrary’ to compel the enforcing court to examine the quality of the reasoning and conclusions of the foreign court, and there would be a clear difficulty in identifying, and drawing consistently, the line between the ‘manifestly unreasonable’ decision, and that which is merely flawed but unreviewable because of Article 36.

The decisions of the CJEU have, however, given rather more specific guidance which helps resolve this difficulty, and how the matter should be decided in the present case. Specifically, in Meroni at paragraph 41, as I have set out, it is said that

The second reason is that I do not consider that the Club has overcome the strong presumption that the courts of the originating Member State, through ‘the system of legal remedies’ of that State, will have provided a procedure which is compliant with Article 6: Maronier v Larmer [2003] QB 620 at [23]-[26]. The Club has not shown what arguments or authorities were put before the Supreme Court. This court is accordingly not in a position to be able to make any informed assessment of how the Supreme Court’s conclusions related to the submissions which were made to it.

Thirdly, the Club, which could, had it participated, have asserted its own rights in respect of a finding of civil liability, did not seek to assert any contravention of A1P1 or Article 6, even after it started to participate at the quantum stage of the Spanish proceedings. It has therefore not attempted to avail itself of any remedies in the Spanish courts to put right what it contends to have been the arbitrary nature of the liability decision. I am not persuaded that it is a sufficient answer to this for the Club to say that a nullity appeal to the Supreme Court would have been pointless because, as the Club contends, it ‘would never have changed its mind’. I am not prepared to make that assumption, if the Supreme Court’s decision was as lacking in any rational foundation as the Club contends it to have been.

For the reasons I have given, I reject the Club’s case that Article 34(1) is applicable on the basis of breaches of fundamental rights.

I will hear argument on the appropriate order which should be made to reflect this conclusion, and the fact that a determination on the other points argued must await a determination of the outcome of the Club’s appeal against the order for a reference to the CJEU, and the reference (if it continues after that appeal).