The Irish Supreme Court recently rejected a public policy challenge against enforcement of a judgment handed down by the courts of another Member State.[1] The challenging party argued that procedural flaws in the originating court breached EU judicial independence requirements, and that enforcing the judgment would therefore violate Irish public policy. The Supreme Court rejected the challenge and found that the challenging party must prove that there were procedural deficiencies and that they were prejudiced and/or disadvantaged by those deficiencies. In addition, these arguments should first be raised in the court that delivered the judgment, unless it would have been “impossible” to do so, rather than at the stage of resisting enforcement.
Background
As set out in our previous insight, Enforcement of foreign judgments and public policy, the Supreme Court had unanimously rejected another public policy challenge to the enforcement of the same Polish judgment. That challenge arose because the litigating company specifically set up to pursue the claim had acquired the individual causes of action by assignment, which the counterparty argued should be considered champertous[2] under Irish law. The Supreme Court there determined that the Irish courts were only being asked to enforce a judgment from another EU Member State, not determine whether the underlying litigation arrangements were incompatible with Irish law.
However, a second public policy argument was advanced which the Irish Supreme Court dealt with separately by way of this new ruling. Essentially, the party appealing the initial enforcement decision also argued that the circumstances and procedures under Polish law concerning the appointment of a seconded judge to the Polish appeal court were not consistent with the judicial independence requirements of Article 19(1) of the Treaty of the European Union. The appellant relied on EU case law[3] that had been critical of a similar secondment program under Polish law, albeit one that involved criminal proceedings. This, it was alleged, meant that enforcing such a judgment which had allegedly been delivered contrary to the ‘rule of law’ violated Irish public policy.
Decision
The Supreme Court confirmed that in order to succeed on the public policy principle of judicial independence, a party must prove two things:
- First, it must show a “systemic deficiency” in the Member State from where the judgment was rendered.
- Second, that deficiency must have prejudiced or disadvantaged the party.
The Supreme Court distinguished the scenario before it, involving civil proceedings, from a cited authority involving a criminal case where the secondment of Polish judges was found to contravene EU law. To the Supreme Court, a material difference was that the Polish Minister for Justice, who could appoint judges to the secondment scheme, was also Public Prosecutor General, and this "wearing of two hats" led the Court to observe that the arrangement contravened EU law. In addition, there was no suggestion here that the appointment was to further State interests in the outcome. Nor was there a suggestion that the appointment of the judge involved had been contrived – the appointment was by random selection. The assignment of judges, even temporarily, was not in itself incompatible with EU law. Therefore, no systemic deficiency was found, and it was not apparent that the appellant was prejudiced and/or disadvantaged. Accordingly, neither element of the test was satisfied.
Relevant to the Supreme Court’s analysis, especially in Mr Justice Murray’s judgment where it featured heavily, was the fact that the appellant had not challenged the presence of the seconded judge while the underlying Polish proceedings were ongoing. According to Mr Justice Murray, unless it would be “impossible” to have done so in the underlying proceedings, it was not appropriate to make the argument for the first time when resisting enforcement. Unless otherwise impossible, these arguments should be raised first in the courts of the Member State that delivered the judgment. In the circumstances at hand, Mr Justice Murray felt that the appellant should have been precluded from raising this issue in the Irish courts.
Ultimately, therefore, the Supreme Court also declined to refuse recognition and enforcement of the Polish judgment based on the ‘rule of law’ / judicial independence public policy argument advanced.
Conclusion
This ruling further confirms that challenging recognition and enforcement in Ireland of a judgment from another EU Member State on public policy grounds remains a difficult task. In the earlier ruling, the Supreme Court determined it must be shown that enforcement would be “manifestly contrary to public policy.” Now, in this second ruling, the Supreme Court has confirmed that, without obvious prejudice or disadvantage, procedural defects in the constitution of the court that delivered the original judgment are not sufficient. Mr Justice Murray’s decision further clarifies that, unless it would be “impossible” to raise procedural arguments in the court of origin, failing to do so there first should preclude these issues from being raised for the first time in an Irish court when recognition and enforcement are sought. Taken together, the various Supreme Court decisions in the Scully v Coucal litigation make clear that there is a high threshold to succeed on the public policy ground for resisting enforcement of a judgment from another EU Member State. Practitioners seeking to enforce judgments from other EU Member States in Ireland ought to be aware of the potential consequences that these judgments may have for their matters.
If you have questions about enforcing judgments from other EU Member States in Ireland, or defending enforcement proceedings, please contact a member of our Commercial Disputes team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
[1] Scully v Coucal [2025] IESC 51
[2] Champerty arises where a third party with no interest in a dispute supports litigation in return for a share of the proceeds of the litigation.
[3] See Joined Cases C-748/19 to C-754/19 WB (EU:2021:931).
