GAMBAZZI V DAIMLERCHRYSLER CANADA INC

Case C-94/07, NYR, European Court of Justice, First Chamber, 2 April 2009

Enforcement of judgments – Recognition and enforcement of judgments – Grounds for refusal – Infringement of public policy in the state in which enforcement is sought – Exclusion of the defendant from the proceedings before the court of the state of origin because of failure to comply with a court order – Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters

This was a reference for a preliminary ruling in proceedings between Mr Gambazzi, domiciled in Lugano (Switzerland), and the companies DaimlerChrysler Canada Inc and CIBC Mellon Trust Co (“CIBC”), which have their registered offices in Canada, in relation to the enforcement in Italy of a judgment given and an order made in the United Kingdom. The original proceedings were a claim for damages with interest brought by DaimlerChrysler and CIBC against Mr Gambazzi before the English High Court, Chancery Division, in 1997. The court issued a freezing order and an order for disclosure against Mr Gambazzi who did not fully comply with the disclosure order. Following an “unless order”, Mr Gambazzi was ultimately barred from taking any further part in the proceedings unless he complied with the disclosure obligations. Judgment was entered in favour of DaimlerChrysler and CIBC. Upon an attempt to enforce that judgment in Milano, the Corte d’Appello referred a question to the European Court of Justice asking essentially whether it was required to enforce the judgment, given that Mr Gambazzi had been barred from the proceedings. The ECJ held that the Brussels Convention should be interpreted in the following manner: “The court of the State in which enforcement is sought may take into account, with regard to the public policy clause referred to [article 27(1)], the fact that the court of the state of origin ruled on the applicant's claims without hearing the defendant, who entered appearance before it but who was excluded from the proceedings by order on the ground that he had not complied with the obligations imposed by an order made earlier in the same proceedings, if, following a comprehensive assessment of the proceedings and in the light of all the circumstances, it appears to it that that exclusion measure constituted a manifest and disproportionate infringement of the defendant's right to be heard”.