CATCH-WORDS: Practice and procedure -- Foreign judgments -- Enforcement -- Master of the High Court -- Jurisdiction -- Whether statutory instrument can confer jurisdiction on Master of the High Court -- Whether power to enforce foreign judgment vested in Master -- European Communities (Civil and Commercial Judgments) Regulations 2002 (S.I. No. 52) -- Courts (Supplemental Provisions) Act 1961 (No. 39) -- Courts and Court Officers Act 1995 (No. 31), s. 25(1) -- Council Regulation (EC) 44/2001, art. 39.

HEADNOTE:
Section 25(1) of the Courts and Court Officers Act 1995 provides, inter alia, that the President of the High Court may allocate matters for hearing by the Master of the High Court and that the Master can exercise all the functions, powers and jurisdiction of a judge of the High Court except in those matters set out in subs. 2.

Article 39 of Council Regulation (EC)44/2001 provides that an application for enforcement of a judgment in another European Union state shall be submitted to the designated court or competent authority for the member state, which in the case of Ireland is the High Court.

The plaintiff obtained summary judgment in the commercial court in England against the defendant. The Master of the High Court made an order enforcing the judgement against the defendant in this jurisdiction. The defendant appealed the order of the Master of the High Court on the ground that he lacked jurisdiction to make the order.

The defendant argued that under the European Communities (Civil and Commercial Judgments) Regulations 2002 the Minister for Justice sought to vest jurisdiction for enforcing a judgment in another European Union state in the Master of the High Court. However the Minister was not entitled to do this as jurisdiction can only be conferred upon the Master of the High Court by statute or by rules of court and not by statutory instrument.

Held by the High Court (Kelly J.), in setting aside the order of the Master of the High Court, 1, that the Master of the High Court could only exercise such powers and perform such duties and functions as were expressly conferred on him by statute or by rules of court.

2. That the European Communities (Civil and Commercial Judgments) Regulations 2002 were neither a statute or a rule of court and could not be used to confer jurisdiction on the Master of the High Court.

3. That the provisions of s. 25(1) of the Act of 1995 operated only where the President of the High Court had allocated business to the Master of the High Court. As the President of the High Court did not allocate the business of enforcing judgments to the Master of the High Court, s. 25(1) of the Act of 1995 could not be relied upon to vest jurisdiction in the Master.

4. That, insofar as Council Regulation (EC)44/2001 conferred a jurisdiction on the High Court to deal with applications for enforcement of judgments, it did so to confer jurisdiction on a judge of the High Court. The Master was not a judge of the High Court.

CASES-REF-TO:

There are no cases mentioned in this report.

INTRODUCTION:
Appeal from the Master of the High Court

The facts have been summarised in the headnote and are more fully set out in the judgment of Kelly J., infra.

The plaintiff obtained summary judgment against the defendant in the commercial court in England. On the 29th July, 2003, the Master of the High Court made an order that the English summary judgment be enforced within the State.

A notice of motion appealing the order of the Master was filed by the defendant on the 24th October, 2003. The appeal was heard by the High Court (Kelly J.) on the 13th February, 2004.

COUNSEL:
Benedict O Floinn for the defendant; Mark Sanfey for the plaintiff. 

Thomas O'Reilly & Company; Matheson Ormsby Prentice.

JUDGMENT-READ:
Cur adv vult 10 March 2004

PANEL: KELLY J

JUDGMENTS:
KELLY J: The issue

1 Does the Master of the High Court have power pursuant to the European Communities (Civil and Commercial Judgments) Regulations 2002 to make an order for the enforcement within the State of a judgment obtained in another European Union member state? That is the sole question which falls to be determined in this judgment.

Background

2 The defendant was a name at Lloyds. Some years ago proceedings were commenced against him in England seeking contribution in respect of alleged losses of the plaintiff. The proceedings were served on an entity set up to accept service on his behalf. A default judgment was obtained on the 24th June, 1997. An attempt to enforce that judgment in this jurisdiction was unsuccessful when on appeal to this court it was conceded that the default judgment had been obtained irregularly.

3 Almost six years later an application was made to the commercial court in England to have the default judgment set aside and to obtain summary judgment instead. On the 13th June, 2003, the High Court of Justice Queen's Bench Division Commercial Court set aside the original default judgment and granted summary judgment against the defendant in the sum of £78,478 sterling together with a further £4,001.20 sterling for interest and £1,750 sterling for costs.

4 On the 29th July, 2003, the Master of the High Court made an order that the English summary judgment be enforced within this State.

5 This is the defendant's appeal against that order. He raises a preliminary point concerning the jurisdiction of the Master to make the enforcement order. It is agreed that that issue should be decided first. If decided in favour of the defendant the other grounds of appeal need not be considered.

The order under appeal

6 The Master's order of the 29th July, 2003, was made pursuant to the European Communities (Civil and Commercial Judgments) Regulations 2002. They were the sole basis upon which jurisdiction to make the order was founded.

7 The regulations were made by the Minister for Justice on the 21st February, 2002 and came into effect on the 1st March, 2002.

8 Paragraph 4 of the European Communities (Civil and Commercial Judgments) Regulations 2002 provides that an application under Council Regulation (EC)44/2001 of 22nd December, 2000, for the recognition or enforcement in the State of a judgment shall be made to the Master of the High Court. Paragraph 4(2) provides that the Master shall determine the application by order in accordance with Council Regulation (EC)44/2001.

9 It was in purported reliance upon this provision in the European Communities (Civil and Commercial Judgments) Regulations 2002 that the Master made the order under appeal.

10 It is clear that these regulations were made "for the purpose of giving full effect to Council Regulation (EC) No. 44/2001 of 22 December, 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters".

11 Article 39 of Council Regulation (EC)44/2001 specifies the mechanism to be utilised in order to seek enforcement of a judgment in another European Union state. It provides that the application for enforcement shall be submitted to the court or competent authority indicated in the list in annex 2. Annex 2 identifies the court or competent authority in Ireland to which an art. 39 application should be submitted. The High Court is the court so designated.

12 In making the regulations the Minister for Justice sought to vest the relevant jurisdiction in the Master of the High Court. The defendant argues that it was not open to the Minister to do so because jurisdiction can be conferred upon the Master of the High Court only by statute or by rules of court and not by statutory instrument.

The Master of the High Court

13 The office of Master of the High Court was created by statute (see s. 3(2) of the Court Officers Act 1926). The Master is an officer attached to the High Court. The office is not mentioned in the Courts (Establishment and Constitution) Act 1961 but is re-established in the Courts (Supplemental Provisions) Act 1961.

14 In sch. 8 to the Courts (Supplemental Provisions) Act 1961 it is provided that there shall become and be attached to the High Court an officer called the Master of the High Court. The powers, authorities, duties and functions of the Master of the High Court are set forth at para. 4(2) of sch.8 to that Act. There it provides as follows:-

"The Master of the High Court shall have and exercise such powers and authorities and perform such duties and functions as are from time to time conferred on or assigned to him by statute or rules of court and in particular (unless and until otherwise provided by statute or rules of court) shall have and perform all such other powers, authorities, duties and functions as are vested in him by virtue of subsection (3) of section 31 of the Act of 1926."

15 As the Master of the High Court is a statutory officer his jurisdiction is strictly circumscribed by reference to the statutory provisions which confer jurisdiction upon him. The paragraph just quoted makes it clear that he can exercise only such powers and perform such duties and functions as are conferred on or assigned to him by statute or rules of court. The term "rules of court" is defined at para. 4(1) of sch. 8 as meaning rules made under s. 36 of the Courts of Justice Act 1924. The expression "rules of court" is also dealt with in s. 14 of the Courts (Supplemental Provisions) Act 1961 where it is defined as meaning rules made under s. 36 of the Act of 1924 as applied by s. 48 of the Courts (Supplemental Provisions) Act 1961. Under s.14(3) of the Courts (Supplemental Provisions) Act 1961 it is provided as follows:-

"Rules of court may, in relation to proceedings and matters (not being criminal proceedings or matters or matters relating to the liberty of the person) in the High Court and Supreme Court, authorise the Master of the High Court and other principal officers, within the meaning of the Court Officers Acts, 1926 to 1951, to exercise functions, powers and jurisdiction in uncontested cases and to take accounts, conduct inquiries and make orders of an interlocutory nature."

16 Given the foregoing, it is clear that the only power which can be exercised by the Master of the High Court is one which is expressly conferred upon him by statute or by rules of court.

17 The European Communities (Civil and Commercial Judgments) Regulations 2002 are neither. On this analysis therefore, there was no ability to confer this jurisdiction by an ordinary statutory instrument which is what the regulations are. Two possible arguments can be made against this analysis however. I will deal with each of them in turn.

Part V of the Courts and Court Officers Act 1995

18 All three sections which constitute Part V of the Act of 1995 deal with the Master of the High Court.

19 Section 24 of the Act of 1995 authorises him to exercise limited functions and powers of a judicial nature within the scope of Article 37 of the Constitution.

20 Section 25(1) of the Act of 1995 provides as follows:-

"Subject to subsection (2) of this section and section 26 of this Act, the Master of the High Court may, in all such applications made ex parte or by motion on notice whether interlocutory or otherwise and in all such applications for judgment by consent or in default of appearance or defence as may from time to time be allocated for hearing by the Master of the High Court by the President of the High Court, exercise all the functions, powers and jurisdiction which a judge of the High Court exercises from time to time."

21 Subsection (2) excludes the Master from exercising any function, power or jurisdiction in respect of a whole series of matters which are not relevant for the purposes of this judgment. Subsection (2) is however enacted without prejudice to the powers of the Master of the High Court under the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988. I mention that only to point out that the order under appeal in the present case was not made pursuant to that legislation but rather under the European Communities (Civil and Commercial Judgments) Regulations 2002. Section 25(4) of the Act of 1995 entitles the Master of the High Court to exercise such further or other functions and powers in relation to matters arising before the trial of an action as may from time to time be conferred on him by rules of court. Section 25(6) of the Act of 1995 provides that rules of court may be made by the Superior Courts Rules Committee with the concurrence of the Minister in relation to any function, power or jurisdiction conferred on the Master of the High Court under s. 25 of the Act of 1995. It is interesting that these last two subsections all contemplate jurisdiction being conferred on the Master only by rules of court.

22 The plaintiff argues that by virtue of the provisions of s. 25(1) of the Act of 1995 jurisdiction has been conferred upon the Master by statute to make the order under appeal. It is common case that the President of the High Court has never allocated matters for hearing by the Master pursuant to this statutory provision. Notwithstanding the absence of such an allocation by the President of the High Court, the plaintiff argues that the section enables the Master to exercise all the functions, powers and jurisdiction of a judge of the High Court subject only to the exclusion of the matters which are set forth at s. 25(2) of the Act of 1995. Such exclusions include matters relating to criminal proceedings, the liberty of the person, the granting of injunctions, bail, wards of court, custody of children and judicial review applications.

23 I do not accept that s. 25(1) of the Act of 1995 can be read in this fashion.

24 I am of the view that a condition precedent to the effective exercise of any judicial function by the Master of the High Court pursuant to this subsection is the allocation of such business to him by the President of the High Court. The construction sought to be placed upon s. 25(1) of the Act of 1995 by the plaintiffs would render otiose the function of the President of the High Court. That cannot have been the intention of the legislature.

25 Furthermore, the construction which is sought to be placed upon the subsection by the plaintiffs might well have the result of conferring judicial powers in excess of what is permitted pursuant to Article 37 of the Constitution and indeed s. 24 of the Act of 1995. It is not necessary for me to decide that issue in this appeal.

26 I am quite satisfied that the provisions of s. 25(1) of the Act of 1995 only operate in circumstances where an allocation of business has been made by the President of the High Court to the Master of the High Court. As this has never occurred, the subsection cannot be relied upon to vest jurisdiction in the Master to make the order under appeal.

European Communities Act 1972

27 The European Communities (Civil and Commercial Judgments) Regulations 2002 were made by the Minister in exercise of the powers conferred on him by s. 3 of the European Communities Act 1972.

28 That section allows a minister to make regulations for enabling s. 2 of the Act of 1972 to have full effect. Section 2 of the Act of 1972 provides that from the 1st January, 1973, the treaties governing the European Communities and the existing and future acts adopted by the institutions of those communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties.

29 Because of s. 2 of the Act of 1972 it follows that Council Regulation (EC)44/2001 constitutes part of the domestic law of the State. It is argued that it therefore has the same force as a statute and thereby confers jurisdiction upon the Master. Even if that argument as to its status is correct, art. 39 of Council Regulation (EC)44/2001 provides that the application for enforcement is to be submitted to the court or competent authority indicated in the list in annex 2. The nominated court or competent authority for Ireland is the High Court. The Master of the High Court is merely an office attached to that court. In the Courts (Establishment and Constitution) Act 1961 the High Court is defined by reference to judges thereof. The Master of the High Court is not a judge of the High Court. It follows that, insofar as Council Regulation (EC)44/2001 confers a jurisdiction on the High Court, it does so on a judge of that court and not the Master. The only fashion in which that jurisdiction might be devolved to the Master would be by an appropriate statutory provision or rule of court, neither of which exist in the present case.

30 I should mention that it is possible that regulations made under the European Communities Act 1972 may in certain circumstances repeal or amend a statutory provision. In the present case the European Communities (Civil and Commercial Judgments) Regulations 2002 did amend the Maintenance Act 1994 but made no attempt to amend the provisions of the Courts Acts which confine the powers of the Master of the High Court to those granted by statute or by rules of court.

Conclusion

31 Having regard to the foregoing reasons it follows that the Master of the High Court did not have jurisdiction to make the order in suit because jurisdiction to do so was not devolved upon him either by statute or by rules of court. An attempt was made to do so by an ordinary statutory instrument but, having regard to the provisions of the Courts (Supplemental Provisions) Act 1961, that method of creating jurisdiction was impermissible and thus ineffective.

32 This appeal will be allowed. The enforcement order of the 29th July, 2003, made by the Master of the High Court is set aside.

[Reporter's note: The following notice appeared in the Legal Diary on the 24th May, 2004: "Pursuant to section 20 of the Courts and Court Officers Act 1995 (No. 31 of 1995) the President of the High Court has allocated for hearing by the Master of the High Court applications for the recognition or enforcement of Judgments under Council Regulation (EC) No. 1347/00 of 29 May 2000 and Council Regulation (EC) No. 44/01 of 22 December 2000."]

DISPOSITION:
Judgment accordingly.