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The High court delivered a few days ago (29 April 2016) a decision on the EEO (Chachani Misti y Pichu Pichu SRL v Hostplanet Ltd & Finn Grimpe [2016] EWHC 983 (Ch)).

Important paragraphs include:

__“4 The Judgment Creditor seeks an EEO only as against the Second Defendant”

__ “15 […] on the material before the court, I have no idea where the Second Defendant is based. All that the Judgment Creditor, and thus the Court has, is an email address, the top-level domain name of which refers to Luxembourg. But that does not mean that the Second Defendant is based in Luxembourg. He could be based anywhere in the world. So service under Art 14(1) is not possible in this case. Art 15 (Service on the debtor’s representative) does not apply either.

16. So the Judgment Creditor has been driven to rely on Art 18, which in some circumstances cures non-compliance with the procedural requirements in this Chapter. The relevant provision is Art 18(2): “If the proceedings in the Member state of origin did not comply with the procedural requirements as set out in Article 13 or Article 14, such non-compliance shall be cured if it is proved by the conduct of the debtor in the court proceedings that he has personally received the document to be served in sufficient time to arrange his defence.”

 

__ “28.         It is clear from recital (6) of the EEO Regulation, confirmed by the de Visser decision at [62], that a failure to appear or give any notice of intention to defend the case, which of course led to the default judgment obtained in the present case, can amount to an absence of objections making the claim uncontested within art 3(1)(b). In such a case, there will be no formal steps taken by the debtor. The de Visser case, at [62], accordingly makes clear that a default judgment is a judgment capable of being the subject of an EEO. So, if art 18(2) is to have any effect in the case of a default judgment, it must be construed as extending to conduct in the proceedings going wider than formal steps. In my judgment the email response by the Second Defendant, although not a step formally or procedurally required in the proceedings, nonetheless constituted conduct in the court proceedings for the purposes of art 18(2).

 29. Moreover, I am satisfied that that conduct proves that the Second Defendant received the claim form in sufficient time to prepare his defence. The result is that the failure to comply with the procedural requirements of Chapter III is cured, and art 12(1) is no impediment to an EEO being issued in respect of the judgment of 8 March 2016 on the uncontested claim in this case”.

Conclusion: “the EEO will be made”.

 

Source: here

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