Family Law Hub

Lothschutz v Vogel [2014] EWHC 473 (QB)

Application by H for costs orders to be set aside after a European Enforcement Order Certificate in relation to maintenance was rescinded by the German notary.


  • Neutral Citation Number: [2014] EWHC 473 (QB)

    Case No: FJ416/11

    IN THE HIGH COURT OF JUSTICE

    QUEEN'S BENCH DIVISION

    Royal Courts of Justice

    Strand

    London WC2A 2LL

    Friday, 24 January 2014

    BEFORE:

    HIS HONOUR JUDGE SEYMOUR QC

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    BETWEEN:

    LOTHSCHUTZ (Claimant/Respondent)

    - and -

    VOGEL (Defendant/Applicant)

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    MR GAVIN SMITH (instructed by Stowe Family Law) appeared on behalf of the Applicant Husband

    MR ADRIAN JACK (instructed by Bates Wells & Braithwaite Ltd) appeared on behalf of the Respondent Wife

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    Approved Judgment

    Court Copyright (c)

    -------------------

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    1. JUDGE SEYMOUR: The applications before me arise out of the unfortunate decision of the defendant in this matter, Mr Thomas Vogel, and his former wife, Gunhild Lothschutz, to separate. The couple had two children and they decided, having separated, to enter into a notarised agreement on 26 July 2007 in the presence of a notary, Mr Theo Frangipani, in Frankfurt am Main. The notarised agreement provided, in paragraph 1, for payment of an amount of €14,734 on 30 September 2007, but in paragraph 2 it provided for amounts of maintenance to be paid monthly in respect of each of the two sons. The amount due was €499, and the sons were named, respectively, Jan Dominik and Lukas.

    2. It appears that Mr Vogel decided not to pay the sums which had been agreed to be paid in respect of maintenance under the notarised agreement, and in those circumstances an application was made to Mr Frangipani for the production of a European Enforcement Order Certificate. In fact it appears that at the time when the application was made, Mr Frangipani was not available and the question whether to issue the certificate or not was considered by another Rechtsanwalt, a Mr Gast. He decided on 1 September 2009 to issue a European Enforcement Order Certificate.

    3. Consequent upon the issue of that certificate, an application was made in this court to Master Roberts for a registration order in respect of an amount of £12, 091.73 which was obviously the Sterling equivalent of an amount originally calculated in Euros, which was said to be due under the notarised agreement up to 3 December 2009. Master Roberts made the order that he was invited to make and, as I understand it, all of the sums which were ordered by Master Roberts to be paid by Mr Vogel have been paid by way of an attachment of the earnings of Mr Vogel.

    4. Subsequently another application was made to Master Roberts in respect of a further sum said to be due under the notarised agreement. On this occasion the amount was £21,177.30, again the Sterling equivalent no doubt of the Euro amount, which was said to be due up to October 2011. Master Roberts made his order on 21 November 2011 and, at paragraph 5 of his order, Master Roberts directed that the defendant, Thomas Vogel, do pay the claimant's costs of this application and the registration of the judgment, summarily assessed at £495.80, to be added to the judgment as registered.

    5. Mr Vogel appealed the order of Master Roberts of 21 November 2011, and his appeal was heard by Roderick Evans J on 19 October 2012. The appeal was dismissed, subject to a minor modification to the calculation of the rate of interest in the order of Master Roberts. Roderick Evans J directed that Mr Vogel should pay the costs of the unsuccessful appeal, which he summarily assessed in the sum of £6,572.20.

    6. Mr Vogel sought to appeal against the decision of Roderick Evans J. His appeal was considered first of all by Sir Stanley Burnton on paper, and Sir Stanley refused permission to appeal by an order dated 25 February 2013. Mr Vogel exercised his right to have an oral hearing of his application for permission to appeal. That application was heard by Floyd LJ on 14 May 2013 and permission to appeal was then refused.

    7. Between the decision of Roderick Evans J and the consideration in the Court of Appeal of the question whether permission to appeal should be granted against the order of Roderick Evans J, the question of the European Enforcement Order Certificate was reconsidered by Mr Frangipani. In a letter of 31 October 2012 addressed to Mr Vogel, and as translated into English, what Mr Frangipani said was this:

    "In my capacity as German notary with official place of practice in Frankfurt am Main, I hereby rescind the European Enforcement Order Certificate - Authentic Instrument submitted by Lawyer Gast as my officially appointed representative on 1 September 2009, my document 155 of the notarial register. The certificate submitted is demonstrably incorrect. My document contains no enforceable demand for recurring payments, especially not due to spouse and child maintenance. Bound with this, I pass to you copies prepared by myself of my document of 26 July 2007 as well as of the certificate of 1 September 2009 and hereby attest that they are true copies of the original documents held at my end."

    (Quote unchecked)

    8. Following the withdrawal by Mr Frangipani of the certificate, Mr Vogel issued an application in this court on 22 March 2013 in which he sought, so far as presently material, this relief:

    "I ask for stay of all further enforcement proceedings and this matter to be transferred to the High Court so that the registrations of the European Enforcement Orders can be set aside on the grounds that the EEO has been withdrawn in Germany."

    (Quote unchecked)

    9. In the interim, before the hearing of the application in this court, an application had been made to Master Yoxall for an order enforcing the costs order of Roderick Evans J. Master Yoxall made an order on 16 August 2013 providing for the order of Roderick Evans J of 19 October 2012 to be transferred to the Milton Keynes County Court and for the defendant, Mr Vogel, to pay the claimant's costs of this application, summarily assessed at £150. That order was subsequently amended by Master Cook on 30 August 2013, but not so far as is presently material.

    10. By an application dated 6 September 2013 Mr Vogel sought this relief, so far as presently material:

    "In accordance with CPR 23.10, I ask to set aside the amended order from Master Cook dated 30 August 2013 because:

    (a) the application for the order should have been made to the judge who issued the underlying cost order on 19 October 2013 and not to the Master;

    (b) the claimant made his application without informing me beforehand and applied for the order without a hearing;

    (c) the underlying registration order is no longer enforceable because the relevant European Enforcement Order is meanwhile rescinded because it should never have been issued."

    (Quote unchecked)

    11. The hearing before me has been of the applications of Mr Vogel made in the application notices he has dated respectively 22 March 2013 and 6 September 2013. It is right to say that it is accepted on behalf of Mrs Lothschutz that the European Enforcement Order Certificate issued by Mr Gast on 1 September 2009 has been withdrawn and that enforcement pursuant to that European Enforcement Order Certificate is no longer possible. What, in practical terms, the applications before me are about are the orders for costs made by Master Roberts on 21 November 2011, Roderick Evans J on 19 October 2012 and Master Yoxall made on 16 August 2013.

    12. The European Enforcement Order is a beast created by Council Regulation (EC) No 805/2004. That Regulation provides in Article 5 that:

    "A judgment which has been certified as a European Enforcement Order in the Member State of origin shall be recognised and enforced in the other Member States without the need for a declaration of enforceability and without any possibility of opposing its recognition."

    13. There is reference in the Regulation to the expression 'authentic instrument'. That is defined in paragraph 3 of Article 4 as follows:

    "(a) a document which has been formally drawn up or registered as an authentic instrument, and the authenticity of which:

    (i) relates to the signature and the content of the instrument; and

    (ii) has been established by a public authority or other authority empowered for that purpose by the Member State in which it originates;

    or

    b) an arrangement relating to maintenance obligations concluded with administrative authorities or authenticated by them;"

    It was common ground before me that the notarised agreement of 26 July 2007 to which I have referred was an authentic instrument for the purposes of the Regulation.

    14. Article 25 of the Regulation deals specifically with authentic instruments. It provides as follows:

    "1. An authentic instrument concerning a claim within the meaning of Article 4(2) which is enforceable in one Member State shall, upon application to the authority designated by the Member State of origin, be certified as a European Enforcement Order, using the standard form in Annex III.

    2. An authentic instrument which has been certified as a European Enforcement Order in the Member State of origin shall be enforced in the other Member States without the need for a declaration of enforceability and without any possibility of opposing its enforceability.

    3. The provisions of Chapter II, with the exception of Articles 5, 6(1) and 9(1), and of Chapter IV, with the exception of Articles 21(1) and 22, shall apply as appropriate."

    15. Chapter II included Article 10, the rubric of which was "rectification or withdrawal of the European Enforcement Order Certificate", and provided as follows:

    "1. The European Enforcement Order certificate shall, upon application to the court of origin, be

    (a) rectified where, due to a material error, there is a discrepancy between the judgment and the certificate;

    (b) withdrawn where it was clearly wrongly granted, having regard to the requirements laid down in this Regulation.

    2. The law of the Member State of origin shall apply to the rectification or withdrawal of the European Enforcement Order certificate.

    3. An application for the rectification or withdrawal of a European Enforcement Order certificate may be made using the standard form in Annex VI.

    4. No appeal shall lie against the issuing of a European Enforcement Order certificate."

    16. Enforcement is dealt with in Chapter IV of the Regulation and Article 20 provides as follows:

    "1. Without prejudice to the provisions of this Chapter, the enforcement procedures shall be governed by the law of the Member State of enforcement.

    A judgment certified as a European Enforcement Order shall be enforced under the same conditions as a judgment handed down in the Member State of enforcement.

    2. The creditor shall be required to provide the competent enforcement authorities of the Member State of enforcement with: [and then the necessary documents were set out]"

    17. Article 21 was concerned with refusal of enforcement and it provided, in paragraph 1:

    "1. Enforcement shall, upon application by the debtor, be refused by the competent court in the Member State of enforcement if the judgment certified as a European Enforcement Order is irreconcilable with an earlier judgment given in any Member State or in a third country..."

    That was subject to various provisos, none of which is presently material, and then:

    "2. Under no circumstances may the judgment or its certification as a European Enforcement Order be reviewed as to their substance in the Member State of enforcement."

    18. Article 23 is concerned with stay or limitation of enforcement and provides as follows:

    "Where the debtor has

    - challenged a judgment certified as a European Enforcement Order, including an application for review within the meaning of Article 19, or

    - applied for the rectification or withdrawal of a European Enforcement Order certificate in accordance with Article 10,

    the competent court or authority in the Member State of enforcement may, upon application by the debtor:

    (a) limit the enforcement proceedings to protective measures; or

    (b) make enforcement conditional on the provision of such security as it shall determine; or

    (c) under exceptional circumstances, stay the enforcement proceedings."

    19. What has actually happened in the present matter is that, following the issue of the application dated 22 February 2013, District Judge Hickman in the Milton Keynes County Court on 9 April 2013 ordered that there be a stay of all further enforcement proceedings under (a) the European Enforcement Order dated 1 September 2009, (b) the order of Master Roberts dated 14 December 2009 and (c) the order of Master Roberts dated 21 November 2011, but he transferred the balance of the application to this court, which is why this judgment is concerned with that application as well as the application dated 6 September 2013.

    20. The submission on behalf of Mr Vogel of Mr Gavin Smith was essentially to this effect, that the withdrawal of the European Enforcement Order Certificate by Mr Frangipani had the consequence of entitling Mr Vogel to have the orders of Master Roberts of 14 December 2009 and 21 November 2011 set aside, and all of the costs orders which had been made against Mr Vogel consequent upon there being in existence a valid European Enforcement Order Certificate could be undone and all of the relevant orders discharged.

    21. In my judgment the submission of Mr Smith on behalf of Mr Vogel is not well founded. The way in which Council Regulation (EC) No 805/2004 works, as it seems to me, is this. Once a document which complies in form with the certificate for which the Regulation provides in relation to a European Enforcement Order has been delivered by somebody apparently entitled to deliver it (in this case, Mr Gast) to the court of enforcement (in this case, this court), this court has no option but to permit enforcement of the European Enforcement Order. There is no mechanism for a challenge in this court to the validity of the European Enforcement Order Certificate. Article 21 in paragraph 2 provides in terms that the Member State of enforcement (in this case, this court) cannot in any circumstances review as to its substance the European Enforcement Order or its certification. I have already referred to other provisions in the Regulation which are essentially to the same effect. All that this court can do if a European Enforcement Order Certificate is withdrawn is exercise its powers under Article 23, and that is what has happened in this case by the orders which have been made by District Judge Hickman on 9 April 2013.

    22. As the relevant European Enforcement Order Certificate has been withdrawn by Mr Frangipani, there is in any event no necessity for this court, even if had power, to express any view as to whether that was an appropriate course to have taken or not. The proper focus of attention on this application, as it seems to me, is, first, whether the effect of the withdrawal of a European Enforcement Order Certificate is that the debtor is entitled to be put in the position in which he or she would have been if the certificate had never been issued, and that, so far as this court is concerned, is a matter outwith the jurisdiction of this court. Paragraph 2 of Article 10 of the Regulation plainly, in my judgment, determines that it is the law of the Member State of origin, that is to say, in this case, the Federal Republic of Germany, which is to apply to the rectification or withdrawal of the European Enforcement Order Certificate, and I may add, including the consequences of such a withdrawal and not merely whether such a withdrawal is appropriate.

    23. Secondly, the approach adopted on behalf of Mr Vogel is in reality an attempt further to appeal in substance the order of Master Roberts of 21 November 2011 which Mr Vogel has already appealed unsuccessfully to Roderick Evans J and tried to appeal further unsuccessfully, first to Sir Stanley Burnton and then Floyd LJ. The order of Master Roberts for payment of costs was plainly comprehended in the appeal to Roderick Evans J; the order of Roderick Evans J has already dismissed the appeal insofar as it related to the costs ordered by Master Roberts; and the order of Roderick Evans J itself was based not upon the European Enforcement Order or the European Enforcement Order Certificate, it was based upon an unsuccessful appeal against the order of Master Roberts to Roderick Evans J. The order of Master Yoxall of 16 August 2013 in relation to costs had nothing directly to do with the European Enforcement Order or the European Enforcement Order Certificate. It was focused upon enforcing the order for costs made by Roderick Evans J.

    24. So one gets to the position, as it seems to me, first, that this court has no power to discharge the orders which I am invited to discharge; second, that if it had power it should not exercise that power; and third, that in substance the orders for costs, which are all the applications before me are really about, are not in themselves directly dependent upon the validity or not of the European Enforcement Order or the European Enforcement Order Certificate, they are dependent upon the validity of orders of this court which cannot further be challenged. Mr Smith, in addition to relying upon the provisions of Council Regulation (EC) No 805/2014, sought, in relation to the order made by Master Roberts on 21 November 2011, to submit that actually the procedure which was followed leading up to the making of that order was incorrect because the correct procedure was by that time that provided in Council Regulation (EC) No 4/2009 which was published in the Official Journal on 10 January 2009. That Council Regulation was concerned with jurisdiction, applicable law, recognition and enforcement of decisions, and cooperation in matters relating to, maintenance obligations. In fact the most obvious answer to Mr Smith's attempt to rely on that Regulation is that the point should have been taken, if it was to be taken at all, on the appeal to Roderick Evans J, and the point was not then taken and it was not sought to raise it at the Court of Appeal level either. The provisions of the Regulation apply differently depending upon whether a Member State adhered to the Hague Protocol or not. At the time the Regulation was published in the Official Journal, the United Kingdom did not adhere to the Hague Protocol. In those circumstances, submitted Mr Smith, the transitional provisions in Article 75 of the Regulation were relevant. Before coming to the transitional provisions, Article 76 provides that "This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union", so 30 January 2009. Paragraph 1 of Article 75 provides:

    "1. This Regulation shall apply only to proceedings instituted, to court settlements approved or concluded, and to authentic instruments established after its date of application, subject to paragraphs 2 and 3."

    Paragraph 2, which is the only arguably relevant part of the reference to paragraphs 2 and 3, is in these terms (which I think have been slightly corrected since the version which has been put before me, but it is not material for present purposes):

    "2. Sections 2 and 3 of Chapter IV shall apply:

    (a) to decisions given in the Member States before the date of application of this Regulation for which recognition and the declaration of enforceability are requested after that date;

    (b) to decisions given after the date of application of this Regulation following proceedings begun before that date, in so far as those decisions fall with the scope of Regulation (EC) No 44/2001 for the purposes of recognition and enforcement.

    Regulation (EC) No 44/2001 shall continue to apply to procedures for recognition and enforcement under way on the date of application of this Regulation.

    The first and second subparagraphs shall apply mutatis mutandis to court settlements approved or concluded and to authentic instruments established in the Member States."

    25. Mr Adrian Jack, who appears on behalf of Mrs Lothschutz, submits that in any event the effect of Article 75, paragraph 1 is that the Regulation does not apply to the present circumstances because of the date of the notarised agreement which has given rise to the proceedings with which I have been concerned. I think it is not necessary for me to reach any final conclusion in relation to that point but I am inclined to accept Mr Jack's submission.

    26. Consequently both of the applications before me, insofar as they seek to discharge the orders of Master Roberts or that of Master Cook, fail and, insofar as they seek to have set aside the orders for costs made by Master Roberts on 21 November 2011, by Roderick Evans J on 19 October 2012 and by Master Yoxall on 16 August 2013, also fail.

Judgment, published: 28/02/2014

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Published: 28/02/2014

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