Oakfield Foods: Writ of control granted in enforcement of EU order of payment; otherwise enforcement stayed pending challenge to jurisdiction in Poland.

In Oakfield Foods v Zaklad Przemyslu Miesnego Biernacki SP Z O O [2020] EWHC 250 (QB), Kimbell DJ granted a writ of control for £149,100.43 (monies to be paid into court) on the basis of the European orders for payment and their enforcement (EOPs) Regulation 1896/2006. The order for payment was issued in June 2018 by the Regional Court in Poznan.

In the simmering dispute on jurisdiction, it is Oakfield’s position that the court in Poland did not have jurisdiction because, under the terms of the sales agreement between it and Biernacki, there was choice of court for the courts of England and Wales. The position Biernacki in their application for the EPO is that the meat that was sold from Biernacki to Oakfield, was delivered in each case on Incoterms CIF/CIP under cover of CMR notes, and delivery took place in Poland.

Article 20 EOP provides for a system of review of the order. Oakfield argue that the time-limit included in it has not even begun running for service was not properly done. Oakfield have also launched proceedings in Poland challenging the EOP. Those proceedings were issued on 1 July 2019.

Kimbell DJ after discussing the service issues (incl the relation between the EOP and the Service Regulation) granted a writ of control (shielding therefore Biernacki from the risk of non-payment), stayed further enforcement until the litigation in Poland will be resolved, and also, at 98, ordered that Oakfield notify Biernacki’s English solicitors every four to six weeks of progress in the application challenging the EOP so as to avoid the claim being warehoused.

The substantial debate on jurisdiction in Poland clearly will involve the usual discussions on GTCs as well as Incoterms and choice of court.

Geert.

 

 

European order for payment Regulation and Jurisidiction Regulation are separate regimes – contestation in one, even if to the substance, does not equate voluntary appearance under the other: the ECJ in Goldbet

In Case C-144/12 Goldbet Sportwetten GmbH v Massimo Sperindeo, the Court of Justice on the 13 june last emphasised the stand-alone nature of Regulation 1896/2006, the European order for payment. The Regulation provides for a simplified procedure to ensure rapid enforcement of non-contested pecuniary claims. The Regulation however leaves the underlying jurisdictional rules untouched.

The procedure takes place in camera up until the debtor has been notified of an order being made against him. From that moment on, of course, the debtor may contest, and the Jurisdiction regulation takes over. Standard procedure is to contest in shorthand format, following a prescribed form. However in the case at issue, the debtor had replied by issuing a lengthy contestation as to the substance of the claim, without expressis verbis contesting the jurisdiction of the court. The question which subsequently arose was whether this submission, seeing as it did not contest jurisdiction, could count as voluntary appearance under Article 24 of the Jurisdiction Regulation. That Article prescribes that one has to contest jurisdiction in limine litis, for otherwise the opportunity to do so is lost. In other words, the argument revolved around the contestation, in substance, of the order for payment: was that the ‘limine’ (the very start of the proceedings) in the application of Article 24 JR?

No, the Court held: that would imply that the order for payment procedure and the procedure held in application of the Jurisdiction Regulation, are one and the same, flawless procedure. Which the provisions of the former dictate they most certainly are not: according to Article 6(1) of Regulation 1896/2006, jurisdiction is determined under the rules of in particular Regulation 44/2001.

Counsel in this case was close to having being penalised for having been too active early on in a legal procedure.  I am ambivalent what to think of that from the point of view of the profession!

Geert.

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