The free movement of judgments within the European Union rests on mutual trust between the courts of the Member States, and the grounds on which a court may refuse to recognise a judgment from another Member State are deliberately narrow. Sporting Index Ltd v O’Shea is one of the few Irish decisions in which that refusal has been upheld on the ground of public policy.1 Mac Eochaidh J held that an English County Court judgment for a spread betting debt could not be enforced in Ireland because section 36 of the Gaming and Lotteries Act 1956 prohibits the recovery of gambling debts, and that the prohibition is a rule of law regarded as essential in the Irish legal order. Robert Bourke, now Principal of the firm, appeared as junior counsel for the successful defendant. This article examines the European framework for the enforcement of judgments, the content and limits of the public policy exception, the Court’s treatment of the 1956 Act, and the position that now obtains after the recast of the Brussels I Regulation, the departure of the United Kingdom from the Union and the arrival of the Gambling Regulation Act 2024.
Background
The defendant opened an online spread betting account with the plaintiff, a company based in the United Kingdom specialising in sports spread betting. He placed a bet on a Heineken Cup rugby match which did not go his way. The plaintiff allowed the account to become overdrawn, and the resulting liability was the subject of proceedings in the County Court in London. The defendant filed a limited defence, contending that the plaintiff had acted recklessly in allowing an overdraft he had not requested and that the proceedings ought to have been brought in Ireland, where he was domiciled. The plaintiff obtained judgment for €118,058.99 together with costs summarily assessed at £17,500. A second judgment followed for the plaintiff’s costs of resisting an application by the defendant to set the first judgment aside.2
On an ex parte application the Master of the High Court made orders on 20 May 2014 declaring both judgments enforceable in Ireland. The defendant appealed to the High Court by notice of motion, and the appeal was heard by Mac Eochaidh J on 20 April 2015. By the time of the hearing the parties had agreed that the appeal turned on a single question, namely whether the first judgment, having arisen from a gambling contract, could be refused enforcement on the ground that enforcement would be manifestly contrary to public policy in Ireland.3
The European framework for the enforcement of judgments
The application was governed by Council Regulation (EC) No 44/2001, commonly called the Brussels I Regulation, which replaced the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and which was given effect in Irish law by the Jurisdiction of Courts and Enforcement of Judgments Acts.4 Under that Regulation a judgment given in one Member State was declared enforceable in another on an application made without notice, which in Ireland was dealt with by the Master of the High Court. Recital 17 described the declaration as one to be issued “virtually automatically” after purely formal checks of the documents supplied, without any possibility of the court raising a ground of non-enforcement of its own motion. Recital 18 preserved the rights of the defence by allowing the judgment debtor to appeal against the declaration in an adversarial procedure if he considered that one of the grounds for non-enforcement was present.5
Those grounds are set out in Article 34. A judgment is not to be recognised if recognition is manifestly contrary to public policy in the Member State in which recognition is sought, if it was given in default of appearance without proper service, or if it is irreconcilable with a judgment between the same parties given in the State addressed or with an earlier judgment elsewhere. Two further provisions frame the exercise. Article 36 provides that under no circumstances may a foreign judgment be reviewed as to its substance, and Article 45(2) repeats that prohibition for the court hearing an appeal against a declaration of enforceability.6
The defendant relied on Article 34(1). The plaintiff emphasised the word “manifestly”, which had not appeared in the corresponding provision of the Brussels Convention and which, as Advocate General Szpunar had explained in Diageo Brands BV v Simiramida-04 EOOD shortly before the hearing, had been added to underscore the exceptional nature of the public policy ground with a view to improving the free movement of judgments.7
The content and limits of the public policy exception
The Court of Justice has long treated the public policy clause as an exception to be construed strictly, because it is an obstacle to one of the fundamental objectives of the European regime. In Krombach v Bamberski, which concerned a German national convicted and condemned in damages in France without being permitted to defend himself through counsel, the Court restated that recourse to the clause is to be had only in exceptional cases.8 It also drew the line that has governed the subject since. The content of public policy is a matter for each Member State, but the Court of Justice reviews the limits within which a national court may rely on that content to refuse enforcement. Recourse to the clause can be envisaged only where recognition would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought, because it infringes a fundamental principle, and the infringement must constitute a manifest breach of a rule of law regarded as essential in that legal order or of a right recognised as fundamental within it.9 The Court has also made clear, in Renault v Maxicar, that a mere error of law in the foreign judgment, even an error of European law, is not enough.10
The Irish courts had applied that approach restrictively. In Fairfield Sentry Ltd v Citco Bank Nederland NV, Finlay Geoghegan J held that the protection of the unsecured creditors of a company in liquidation in the British Virgin Islands was not a fundamental principle of Irish law capable of founding a refusal under Article 34(1).11 In Emo Oil Ltd v Mulligan, Dunne J considered the equivalent public policy ground in the Insolvency Regulation and observed that a refusal to recognise the judgment of another Member State on grounds of public policy would arise only in exceptional circumstances, and that the exceptions recognised to date had involved the engagement of a fundamental right such as the right to a fair trial.12
Those authorities formed the foundation of the plaintiff’s case. Krombach, it was said, concerned the denial of legal representation, a manifest breach of a fundamental right, and could be contrasted with the position of a defendant who had simply not attended his own application to set aside the judgment in London. The Irish cases, on the plaintiff’s reading, confined the exception to cases of that kind. The defendant’s answer was that the Oireachtas had spoken with complete clarity on the enforcement of gambling contracts, and that a statutory prohibition of that kind is as much a rule of law essential to the legal order as any procedural guarantee.
Section 36 of the Gaming and Lotteries Act 1956
Section 36 of the 1956 Act provides that every contract by way of gaming or wagering is void, that no action shall lie for the recovery of any money or thing alleged to be won or to have been paid upon a wager or deposited to abide the event on which a wager is made, and that any promise to pay money in respect of such a contract, or by way of commission, fee or reward in connection with it, is likewise void and unenforceable.13 The provision descends from the Gaming Act 1845 and reflects a settled legislative policy that the courts of the State are not to be used to collect gambling debts, whatever the private morality of honouring them.
The plaintiff sought to avoid the section by characterising the application as one to enforce a court order rather than a betting contract. The debt, on this view, had merged in the English judgment, and the Irish court was being asked to lend its authority to a judgment regularly obtained from a court of competent jurisdiction, not to a wager. The plaintiff added that the defendant was in substance inviting the Irish court to review the English judgment on its merits, which Articles 36 and 45(2) forbade.14
The Court’s reasoning
Mac Eochaidh J accepted the plaintiff’s account of the European case law as far as it went. It is for the courts of each Member State to determine the content of their own public policy, the Court of Justice reviews only the limits within which that concept may be invoked, and the ground must be interpreted strictly if the purpose of the Regulation is not to be defeated. The infringement must be a manifest breach of a rule of law regarded as essential in the legal order of the State addressed.15 But the Court declined to read Emo Oil as confining the exception to cases in which the foreign trial had breached fundamental rights. Dunne J had observed that the reported instances of refusal involved such circumstances; she had not held that no other circumstances could qualify.16
The Court then held, in terms that leave no room for doubt, that the public policy exception applied. The intention of the legislature in enacting section 36 was perfectly clear. The enforcement of betting contracts is prohibited, and the statute constitutes a rule of law regarded as essential in the legal order of the State. There was a manifest conflict between a foreign court order arising from a gambling debt and Irish public policy as expressed in the 1956 Act. Because the rule had been enacted by the Oireachtas, the Court considered itself bound to find that it was essential in the legal order of the State. It reflected public policy on the control of gambling and was an essential measure in as much as the Oireachtas had considered it necessary for that purpose.17
The argument that the Court was being asked to enforce a judgment rather than a bet was rejected as unrealistic. The Court was being asked to permit the plaintiff to enforce a court order which in turn enforced a gambling debt. The judge drew a careful distinction between going behind the foreign order, which the Regulation absolutely prohibits, and knowing what the substance of the foreign proceedings had been, which it does not. The affidavits on both sides confirmed that the English order was for the defendant’s gambling debts. Enforcing the order would have the effect of enforcing a gambling debt in the State, and the debt and the order were, in the judge’s phrase, as inseparable as “the dancer from the dance”. Since the Regulation directs that a judgment “shall not be recognised” where recognition is manifestly contrary to public policy, and the Court had so found, it was prohibited from recognising the order of the London court.18
The second judgment was treated differently. The order for the plaintiff’s costs of the English proceedings was not an enforcement of a gambling debt. The monies were not owed on a betting transaction but represented litigation expenses only, and the order was enforceable in the ordinary way under the Regulation.19 The Court also declined to refer any question to the Court of Justice. The Court of Justice could give no further guidance on the public policy exception, and it would be bound to say that whether an Irish statutory provision constitutes a rule of law regarded as essential in Ireland, and whether there is a manifest conflict between Irish public policy and the order sought to be enforced, are questions which only the authorities of the State are competent to assess.20 The appeal was accordingly allowed in respect of the judgment for €118,058.99 and refused in respect of the costs judgment for £17,500.21
The points of law decided
Four propositions emerge from the judgment. The first is that the public policy exception in the European enforcement regime is not confined to breaches of fundamental procedural rights. A substantive rule of domestic law can qualify, provided it is one regarded as essential in the legal order of the State addressed. The second is that a clear statutory prohibition enacted by the Oireachtas is, by its nature, such a rule. The Court did not weigh the importance of the policy against gambling for itself; it treated the legislature’s decision to enact a prohibition as determinative of the rule’s essential character. The third is that the doctrine of merger does not launder a cause of action which domestic law refuses to enforce. A foreign judgment founded on a gambling debt is, for the purposes of Article 34(1), a judgment enforcing that debt, and the prohibition on reviewing the substance of a foreign judgment does not prevent the enforcing court from knowing what the judgment was for. The fourth is that the exception is applied to the judgment in question and not to the litigation as a whole. A separate costs order, which does not itself enforce the wager, is recognised and enforced in the ordinary way.
The decision has since been reported in the Irish Reports and has been cited by the Supreme Court and the Court of Appeal as the Irish illustration of a refusal to recognise a foreign judgment on grounds of public policy, including in the Court of Appeal’s consideration of manifest breaches of public policy in Gwyn-Jones v McDonald and in the Supreme Court’s judgment in Adoption Authority of Ireland v C and D.22
The position today
Three developments since 2015 bear on how the decision applies now. The first is the recast of the Brussels I Regulation. Regulation (EU) No 1215/2012 abolished the declaration of enforceability for judgments in proceedings instituted on or after 10 January 2015, so that a judgment given in one Member State is enforceable in the others without any intermediate procedure. The public policy ground survived unchanged in substance, now as Article 45(1)(a), and is raised by the judgment debtor on an application to refuse enforcement rather than by way of appeal against a declaration. The reasoning in Sporting Index applies to that ground in exactly the same way.23
The second is the departure of the United Kingdom from the European Union. For proceedings instituted in the United Kingdom after the end of the transition period on 31 December 2020, the Brussels regime no longer governs the recognition of English judgments in Ireland. Such judgments are recognised at common law, under the Hague Convention of 2005 on Choice of Court Agreements where an exclusive jurisdiction clause applies, or, for proceedings instituted after the Convention came into force for the United Kingdom on 1 July 2025, under the Hague Convention of 2019 on the Recognition and Enforcement of Foreign Judgments. Each of those routes preserves a public policy defence, and Article 7(1)(c) of the 2019 Convention permits refusal where recognition would be manifestly incompatible with the public policy of the requested State. A judgment of the kind at issue in Sporting Index would therefore meet the same obstacle today, and under the common law the enforcing court has, if anything, greater latitude.24
The third is the reform of Irish gambling law. The Gaming and Lotteries Act 1956 is being replaced by the Gambling Regulation Act 2024, which establishes the Gambling Regulatory Authority of Ireland and is being commenced in stages. The treatment of gaming and wagering contracts under the new regime, and the extent to which the rule in section 36 survives in the same form, is a matter on which anyone seeking to enforce or resist a gambling-related judgment should take advice at the time. What the decision in Sporting Index establishes will outlast the particular statute, however. Where the Oireachtas has prohibited the enforcement of a class of obligation, an Irish court will treat that prohibition as a rule essential to the legal order, and will not permit the prohibition to be circumvented by the simple expedient of obtaining a judgment abroad.25
Practical observations
For judgment creditors, the lesson is that the European enforcement machinery, efficient as it is, does not convert every foreign judgment into an Irish one. Before seeking enforcement in Ireland of a judgment founded on a contract that Irish law treats as void or unenforceable, a creditor should consider whether the underlying obligation is one the Irish courts will enforce at all, and should be prepared for a costs order against it if the answer is no. For judgment debtors, the decision confirms that the public policy ground is a real one, that it is raised on an application or appeal within the strict time limits the Regulation and the Rules prescribe, and that it must be supported by evidence, in this case the affidavits that established beyond argument what the English judgment was for. The exception remains exceptional. It will not assist a debtor who complains of an error in the foreign judgment, of an unfavourable exercise of jurisdiction, or of a result that is merely different from the one an Irish court might have reached. It assists only where enforcement would require the Irish courts to do something the law of the State forbids.
Robert Bourke appeared as junior counsel for the defendant in the High Court.
This article is for general information only and does not constitute legal advice. The law on the recognition of foreign judgments and on gambling contracts has changed since the judgment was delivered, and advice should be taken on the facts of any particular case.
Notes
- Sporting Index Ltd v O’Shea [2015] IEHC 407, High Court, Mac Eochaidh J, 15 June 2015, Record No. 2014/20 FJ; reported at [2016] 3 IR 417. ↩
- Judgment, paragraphs 2 to 4. ↩
- Judgment, paragraphs 5 to 8. ↩
- Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; Jurisdiction of Courts and Enforcement of Judgments Act 1998 and Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012; judgment, paragraph 9. ↩
- Regulation 44/2001, recitals 16 to 18; judgment, paragraph 9. ↩
- Regulation 44/2001, Articles 34, 36 and 45(2); judgment, paragraphs 11 and 15. ↩
- Case C-681/13 Diageo Brands BV v Simiramida-04 EOOD, Opinion of Advocate General Szpunar, 3 March 2015, paragraph 42; judgment, paragraph 12. ↩
- Case C-7/98 Krombach v Bamberski [2000] ECR I-1935, paragraph 21, citing Case 145/86 Hoffmann v Krieg [1988] ECR 645 and Case C-78/95 Hendrikman and Feyen v Magenta Druck & Verlag [1996] ECR I-4943; judgment, paragraph 16. ↩
- Krombach v Bamberski, paragraph 37; judgment, paragraph 17. ↩
- Case C-38/98 Régie nationale des usines Renault SA v Maxicar SpA [2000] ECR I-2973. ↩
- Fairfield Sentry Ltd (in liquidation) v Citco Bank Nederland NV [2012] IEHC 81; judgment, paragraph 19. ↩
- Emo Oil Ltd v Mulligan [2011] IEHC 552, paragraph 21; judgment, paragraph 20. ↩
- Gaming and Lotteries Act 1956, section 36; judgment, paragraph 13. ↩
- Judgment, paragraphs 14 and 15. ↩
- Judgment, paragraphs 21 and 22. ↩
- Judgment, paragraph 22. ↩
- Judgment, paragraph 23. ↩
- Judgment, paragraph 24. ↩
- Judgment, paragraph 25. ↩
- Judgment, paragraph 26. ↩
- Judgment, paragraph 27. ↩
- Persona Digital Telephony Ltd v Minister for Public Enterprise, Supreme Court, 23 May 2017; Gwyn-Jones v McDonald, Court of Appeal, 23 July 2021; Adoption Authority of Ireland v C and D, Supreme Court, 30 March 2023. ↩
- Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), Articles 39, 45(1)(a), 46 and 66. ↩
- Convention of 30 June 2005 on Choice of Court Agreements; Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, Article 7(1)(c). ↩
- Gambling Regulation Act 2024. ↩