The Irish Supreme Court has delivered a second judgment in the Scully v Coucal litigation, rejecting a further argument that the recognition and enforcement of a Polish judgment should be refused in Ireland under the public policy exception in the Brussels Recast Regulation.
Background
The underlying dispute related to an investment in a Polish shopping centre project, resulting in Mr Scully being subject to a Polish Court of Appeal judgment awarding approximately €6.33 million to Coucal Limited (“Coucal”).
In its first judgment earlier this year, the Irish Supreme Court rejected the argument that recognition of the Polish judgment would be contrary to Irish public policy in circumstances where individual investors in the project had assigned their causes of action to Coucal in a manner claimed to be champertous and therefore unenforceable under Irish law. In doing so, the Supreme Court was clear that refusal of recognition of EU judgments on public policy grounds under Article 45(1)(a) of the Brussels Recast Regulation would only be possible in the most exceptional circumstances. For detailed consideration of that decision, see our previous insight here.
In Scully v Coucal [No.2] [2025] IESC 51 the Irish Supreme Court considered arguments based on alleged concerns about judicial independence in Poland, again framed as a basis for refusing recognition of a judgment on the ground that such recognition would be “manifestly contrary to public policy” under Article 45(1)(a) of the Brussels Recast Regulation. Termed the “rule of law issue”, this was not dealt with by the Supreme Court previously because initially leave was not granted in relation to this aspect of the appeal. Subsequently, and after the first Supreme Court decision, the Supreme Court concluded it had jurisdiction to extend the grant of leave so that it could determine the issue and bring the matter to a final conclusion.
The specific objection raised was that, because one of the Polish judges on the appeal panel had been seconded to the Polish Court of Appeal from a lower court, that meant the Polish court issuing the judgment in question was constituted in a manner contrary to the principle of judicial independence.
Supreme Court decision
The Supreme Court unanimously rejected the challenge, finding that the secondment of the Polish judge did not affect the validity or enforceability in Ireland of the resulting judgment. As with the earlier decision, two separate judgments were delivered (by Mr Justice Hogan and Mr Justice Murray), with which the rest of the court agreed.
In reaching his conclusion, Hogan J highlighted various points including that:
- the secondment procedure in Poland had been used for some time and was not unusual;
- applying the decision of the European Court of Justice in TB [Daka] (In Joined Cases C‑422/23, C‑455/23, C‑459/23, C‑486/23 and C‑493/23), the secondment of judges in a civil case is not of itself contrary to EU law;
- the selection of the judge to sit on the panel of the Polish Court of Appeal did not realistically give rise to concerns of judicial independence; and
- even if “some systemic deficiency exists in the judgment-rendering state, this does not in itself mean that those judgments or other judicial requests cannot be enforced in another Member State. The caselaw of the Court of Justice establishes that an applicant must go further and satisfy the second limb of a two-stage test by demonstrating that the systemic deficiency in some way affects or prejudices him or her”. Mr Scully had not established any such prejudice.
Murray J agreed with Hogan J in full. In addition, he noted that Mr Scully knew or could have ascertained the position in relation to the judge at the time of appeal before the Polish Court of Appeal. Further, the fact he chose not to raise any objection to the presence of the seconded judge before the Polish Court of Appeal, even though he could have done, precluded Mr Scully from raising the issue before the Irish courts.
As a result, the Supreme Court declared that the judgment of the Polish Court of Appeal was entitled to recognition in Ireland.
Conclusion
This second decision again highlights that the public policy exception under Article 45 of the Brussels Recast Regulation will be applied narrowly. A judgment from an EU Member State court will be entitled to recognition in another EU Member State unless that would be “manifestly contrary to public policy”, with recognition only refused in wholly exceptional circumstances.
Contact
If you would like to discuss any of the issues addressed in this article, please contact Disputes and Investigations partners, Julie Murphy-O’Connor, Michael Byrne or Angela Brennan or your usual Matheson contact.