THE HIGH COURT
			1995 No. 27FJ
BETWEEN
SOCIETE LACOSTE S.A. AND PAPETERIES SIBILLE STENAY S.A. 
			PLAINTIFFS
AND
KEELY GROUP LIMITED
			DEFENDANT

JUDGMENT of O'Sullivan J. delivered the 3rd November, 1998
	This is an appeal from two orders of the Master dated respectively the 
28th July, 1995 and the 30th July, 1996 in which he made orders enforcing in this jurisdiction Orders obtained by the Plaintiffs against the Defendant in the Commercial Court of Bordeaux, France.  The Plaintiffs obtained the first of these against the Defendant (and a co-Defendant) on the 12th July, 1985, which was appealed by the co-Defendant (but not by the Defendant).  The Appeal Court of Bordeaux gave a judgment on the 14th June, 1990 confirming the Order against the Defendant but allowing the appeal of the co-Defendant.
	The Order of the Master dated the 28th July, 1995 was an Order enforcing the judgment of the Court of Bordeaux in this jurisdiction and his Order of the 30th July, 1996 was a further Order providing for the enforcement in this jurisdiction of the interest due on such Order.  Both Orders were accompanied by mareva injunctions against the Defendant.  
	On this appeal the Defendant makes three points as follows:-
	(a)	The Convention on Jurisdiction and the enforcement of judgments in civil and commercial matters did not apply in the present case so that the Master had no jurisdiction to make the Orders or either of them;
	(b)	Even if it could be argued that the Defendant had submitted to the jurisdiction in France (by agreeing in writing that disputes would be referred to the Courts in Bordeaux) even so and notwithstanding, the Convention does not apply because insufficient time was given to the Defendant for its defence; and
	(c)	The Master's Orders are defective because they do not recite that France was a contracting State at the time of the Orders made in Bordeaux and should therefore be set aside.

	Counsel are agreed that Article 34 of the Transitional Provisions contained in title V of the Convention (which is to be found in the third schedule to the Jurisdiction of Courts and Enforcement of Judgments Act, 1993) is the article of primary relevance to the  Appellants' first submission.  That article provides as follows:
	
"ARTICLE 34
	1.	The 1968 Convention and the 1971 Protocol, with the amendments made by this Convention, shall apply only to legal proceedings instituted and to authentic instruments formally drawn up or registered after the entry into force of this Convention in the State of origin and, where recognition or enforcement of a judgment or authentic instrument is sought, in the State addressed.  

	2.	....

	3.	Moreover, as between the six contracting States to the 1968 Convention and the three States mentioned in Article 1 of this Convention and as between those three States, judgments given after the date of entry into force of this Convention between the State of origin and the State addressed in proceedings instituted before that date shall also be recognised and enforced in accordance with the provisions of title III of the 1968 Convention as amended if jurisdiction was founded upon rules which accorded with the provisions of title II, as amended, or with the provisions of a Convention concluded between the State of origin and the State addressed which was in force when the proceedings were instituted."

	Counsel for the Appellant submits that the meaning of sub-Article 1 is that the Convention must have come into force in both France and Ireland at the time of the institution of proceedings (in France) for the Master to have jurisdiction to enforce the judgment as he purported to do.
	Counsel for the Respondent says that the sub-Article means only that the Convention must have been incorporated into domestic law in France at the time of the making of the Order in that country and incorporated into the domestic law in this country at the time of the making of the Master's Orders.  
	The relevant dates are as follows:

	Proceedings instituted in France: 	9th November, 1984
	Judgment in default of appearance at first instance: 	12th July, 1985
	Judgment on appeal: 	14th June, 1990.
	Convention enacted into domestic law in France:	1st January, 1973,
	convention enacted into domestic law in Ireland:	1st June, 1988.

	From the foregoing it can be seen that when the proceedings were instituted the Convention had been adopted into domestic law in France but not in Ireland: when the judgment at first instance was given the same applied, but when the judgment of appeal was given the Convention had been adopted into domestic law both in France and in Ireland.  
	Accordingly, if the Appellant is correct in saying that the Convention applies only where it had been adopted into domestic law in both the country where the original Order was made and where it is sought to be enforced ("the State addressed") before the institution of those proceedings in the former, then so far as this submission goes the Master had no jurisdiction, because the Convention did not apply: if, on the other hand it is necessary only that the Convention be incorporated into domestic law in the former country before the initiating proceedings and in the State addressed before the application to enforce them then the Master had jurisdiction.
	On the question of jurisdiction, however, the Respondents have another string to their bow.  They say that the meaning of Article 34(3) is that the Convention will apply in any event so as to confer jurisdiction on the Master in the present case if it can be shown that on the date that the judgment was given (which the Master enforces) the Convention had been adopted in both the originating country and the country addressed and that the jurisdiction was founded upon rules which accorded with the provisions of Title II as amended.  This would apply if the judgment of the appeal court is the date on which the judgment was given, because on 14th June, 1990 the Convention had been adopted into both French and Irish domestic law.  
	The rules in Title II, as relevant to the present case, require that the jurisdiction in France be founded upon an agreement conferring such jurisdiction in writing or evidence in writing or on the other bases set out in Article 17 of the Convention (which itself is set out in the first schedule to the Act of 1993).  Moreover, in such a case, the judgment would not be recognised where it was given in default of appearance (as in this case) if the Defendant was not duly served with the document instituting the proceedings in sufficient time to enable it to arrange for its defence.  (See Article 27 of the Convention).
	In the present case there is evidence of service which gave the Defendant almost nine weeks to enter an appearance and there is also evidence of a standard form agreement between the parties which included Article 11 thereof, (in the English translation) a provision that "in the event of a dispute, the Bordeaux Commercial Court shall be the sole jurisdiction, even if there are a number of Defendants."
	In my view the service of the relevant documents on the Defendant is established and I consider that nine weeks is sufficient time to enable the Defendant to arrange for his defence (particularly as the evidence is that the writ instituting the proceedings in France indicated that if the Defendant had difficulty preparing its defence in this period of time then had the Defendant entered an appearance and sought an extension of time this would have been granted).  
	The Appellant has filed an Affidavit stating that it had no knowledge of the provisions of clause 11 and that therefore there is no "agreement conferring jurisdiction... in writing or evidenced in writing" as contemplated by Article XVII of the Convention with the result that the Convention does not apply.  
	I am unable to agree with that submission.  The fact that the deponent on behalf of the Defendant may not have been aware of the terms of the written agreement does not mean that such agreement does not bind the parties.  The relevant article requires only that there be an agreement conferring jurisdiction in writing or evidenced in writing.  I consider that such an agreement does exist and the fact that one or other of the parties may or may not have been aware of it in the sense of actually conscious either that it existed or of its terms, does not mean that the agreement does not exist.  Commercial relations are governed by written agreements and standard terms which are frequently not consulted unless and until a difficulty arises.  This does not mean that they do not exist, even if it can truly be said that the parties are not aware of them.  
	Subject to one further point which I will attend to in a moment, on the foregoing basis, I am of the view that the Master did have jurisdiction pursuant to the provisions of Article 34(3), because it can be shown that the judgment, which he enforced, was given after the date of entry into force of the Convention between France and Ireland (notwithstanding that the proceedings were instituted before that date) and jurisdiction (in Bordeaux) was founded upon rules which accorded with the provisions of title II.  Jurisdiction was founded in accordance with those provisions because service, adequate time for preparation of defence, and a written agreement conferring jurisdiction satisfy the requirements of title II.  
	The one outstanding point is whether the judgment of the Court in Bordeaux dated the 14th June, 1990 (by which time the Convention had been adopted into domestic law in both Ireland (on the 1st June, 1988) and France (on the 1st January, 1973)) was a judgment for the purposes of Article 34(3) or whether that can only truly be said of the originating judgment in default of appearance dated the 12th July, 1985 when the Convention had not been adopted into Irish domestic law.  
	Article 25 of the Convention provides as follows:
	
	"For the purposes of this Convention, 'Judgment' means any judgment given by a Court or Tribunal of a contracting State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the Court."

	That is a very wide definition and in my view, in the absence of authority to the contrary, is sufficient to capture the Order of the second chamber of the Appeal Court of Bordeaux dated the 14th June, 1990 which confirmed the original order against the Defendant/Appellant and which according to the text of that order made that judgment final against the Defendant.
	In those circumstances I consider that even if the Appellant is correct in relation to its submission on Article 34(1) - and I do not have to decide this point one way or the other - the Master had jurisdiction under Article 34(3) in the circumstances which I have outlined above.  
	In relation to the Appellant's second point to the effect that the judgment should, notwithstanding the foregoing, not be recognised because (it having been given in default of appearance) the Defendant did not have sufficient time to enable it to arrange for its defence.  As stated my view is that the original period of almost nine weeks was indeed sufficient time and I cannot agree with the submission of Counsel for the Appellant that the date of the adoption into Irish domestic law (the 1st June, 1988) has relevance in this context.  The reason that I take this view is because I consider that the provisions of Article 34(3) are satisfied if jurisdiction was founded upon rules which accord with the provisions of Title II which in the present case they have.
	With regard to the third point to the effect that the order of the Master should have recited that France was a contracting State, I consider that the test by reference to which the validity of the Master's order must be assessed by me in the context of this submission was set out in the judgment of Griffin J. in Rhatigan v. Textiles Confecciones Europeas [1990]: ILRM: 825 at page 834 and is whether the Plaintiff could have been under any misapprehension as to the judgments on foot of which the enforcement order was made by the Master, or of the Court of the State in which those judgments were recovered.  I cannot see how any such misapprehension could have arisen in the present case.  Furthermore, Counsel for the Respondents submits that if the Master's order were to fall on this ground it would be open to his client to re-apply to the Master and have this matter of form corrected.  There is no evidence of mis-apprehension and even assuming that such a recital is a necessary requirement in the order of the Master, I consider that the orders in this case should not be set aside or vacated on this ground. 
	From the foregoing it follows that the Master was entitled to authorise enforcement of the judgments and accordingly I would refuse to set them aside.