Aerotron Limited v Hermes Aviation Limited [2026] EWHC 1879 (KB)

[2026] EWHC 1879 (KB)Case No FJ 44/26
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23 July 2026
Before
Master Fontaine (Sitting in Retirement)
Between
Aerotron LimitedApplicantHermes Aviation LimitedRespondent
Amit Karia (instructed by Cripps LLP) for ApplicantGreg Callus (instructed by W Legal Limited) for RespondentHearing Hearing date: 9 April 2026
APPROVED JUDGMENTThis judgment was handed down remotely on 27 th July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.Master Fontaine:
[1]This was the application of the Applicant, Aerotron Limited (“Aerotron”) by application notice dated 3 December 2025, seeking an order pursuant to CPR 74.7A (as at 2020: see Paragraphs 21-25 below) refusing recognition and enforcement of two Maltese judgments on the grounds that such recognition is manifestly contrary to public policy under Article 45(1)(a) of Regulation (EU) (1215/2012), namely the Brussels I Recast Regulation (“the Regulation”). The application is supported by the first witness statement of Ben Ashworth dated 3 December2025 (“Ashworth 1”), and the first witness statement of Adrian Mallia dated 3 December 2025 (“Mallia 1”). It is opposed by the Respondent (“Hermes”) by the first witness statement of Simon Alexander Cohen dated 18 March 2026 (“Cohen 1”) and responded to by the second witness statement of Ben Ashworth dated 30 March 2025 (“Ashworth 2”). Factual background as described in the undisputed evidence of the parties The Parties

Factual background as described in the undisputed evidence of the parties

[2]Aerotron is the English arm of the Aerotron Group of companies operating out of premises near Gatwick airport in Crawley. It is a long-established company, founded in 1973. It is a leading European supplier in the civil and defence aviation industry, providing aircraft parts, maintenance, sales and leasing services. Its audited accounts for year ending 2024 show a turnover of £63m and net assets exceeding c.£97m, with cash in the bank of c.£75m. The Aerotron Group’s position is also substantial.[3]Hermes is a Maltese company incorporated on 17 November 2011. It was established to engage in the business of operating a small airline offering services from mainly Sicily to Malta using the name “Fly Hermes”. Its first and apparently only activity commenced in May 2014 namely the lease of a Boeing 737-400 aircraft from Aerotron and commercial use of that aircraft. Hermes’ Air Operator’s License was suspended by the Maltese authorities in January 2015 following which it ceased operations.[4]Hermes’s parent company and 99.999% shareholder (but with all rights to distributions), is Amonra Limited, (“Amonra”). Amonra was incorporated in Malta at the same time as Hermes and has no assets but Hermes. Amonra was struck off the Malta Business Register (“the MBR”) on 31 August 2023. The other 0.001% shareholder is Mr Vincenzo Di Grandi (“Mr Di Grandi”). The Maltese Judgments the subject of the application[5]The judgments the subject of the application arise out of litigation in the Maltese courts relating to the contract by Hermes for the lease of the Boeing aircraft, from Aerotron, dated 26 March 2014, which was terminated by notice by Aerotron on 14 January 2015.[6]On 24 February 2015 Aerotron brought proceedings against Hermes in the First Hall of the Civil Court in Malta (Claim No. 171/2015LM) in respect of the aircraft lease contract. On 17 October 2018 the First Hall delivered judgment, dismissing Aerotron’s claims and upholding Hermes’s counterclaim for damages (“the First Instance Judgment”). Aerotron was ordered to pay a US$ 240,000 security deposit, compensation for flight cancellations, and costs paid to maintenance providers, in total US$541,209.84 plus interest. In November 2018 Aerotron appealed the First Instance Judgment. On 5 October 2023 Maltese Court of Appeal delivered judgment, (“the Maltese Appeal Judgment” together with the First Instance Judgment “the Maltese Judgments”), affirming the First Instance judgment, holding that Aerotron’s original claims were exhausted and extinguished, but modifying the calculation of the damages such that the principal judgment debt was quantified at US$555,155.94.

Events following the Maltese Judgments

[7]On 8 November 2024 Maltese lawyers for Hermes (Fenech & Fenech) demanded payment of the judgment debt. When Aerotron’s Maltese lawyers (Mamo TCV) asked for the payee details they were given details for “Ocean Capital Exchange”, with the account name stated as Hermes Aviation Limited with the SWIFT and IBAN numbers: Cohen 1 §19. In Ashworth 1 at §§16-19. It is explained that Aerotron’s bank flagged difficulties in verifying these details. It transpired that Ocean Capital Exchange was a London Forex platform.[8]After inquiries of Fenech & Fenech it was explained “Ocean Capital is a whitelabel for Equals Money, operating via Equals Connect Limited” and that this entity had a segregated account issued to Hermes. It appeared that this was a fintech account rather than an account with a traditional bank. This raised compliance concerns with Aerotron, as for a domestic transfer they needed a bank account in Hermes’ name. Its concerns were to establish that the account to which payment was made was in the name of the proper payee and to protect themselves from potential money laundering involvement: see Ashworth 1 at §§15-19. Subsequently Hermes provided details of an account with Revolut, but Aerotron was unable to verify the ultimate beneficial ownership or control of the Revolut account through standard banking customer service channels: Ashworth 1 at §§20-23.[9]Aerotron’s Internal communication on 27 November 2024 (exhibited to Ashworth 1) was:
“As they are uk we need a domestic UK account number that comes up in the uk bank accounting system showing Hermes as the account holder to pay. If not then we need to pay to court to avoid anti money laundering laws.”
[10]On 28 November 2024 Fenech & Fenech forwarded an email from Ocean Capital that stated in effect that Equals Money would receive the funds and then hold them in a designated client account for Hermes and it was unable to provide a SWIFT code in Hermes’ name and a SWIFT number.[11]On 10 December 2024 Hermes provided details of three Revolut payment accounts, one each of, Pounds sterling, US dollar and Euro. On 12 December 2024 Aerotron’s director, in an email to Mamo TCV said:
“Revolut we cannot get in touch with to verify details provided so cannot comply with anti money laundering laws and our own policies on transactions to avoid fraud.”
.

In the same email Aerotron made the following request to its lawyers:

“Please can we try and get in touch with Hermes bank (aps?) in Malta who they still owe millions to. If we have to pay let’s pay to them in the old account and they seize the money for creditors rather than give a penny to these wilful defaulters. Do you have contacts at the bank?”
. It is said by Aerotron that “aps” is a reference to Aps Bank of Malta. In the same email Aerotron made the following request to its lawyers:[12]There was then a hiatus until April 2025, when communications began between the parties’ English solicitors, commencing with a formal demand for payment of the Maltese Judgments and interest and threatened winding up from W Legal (Limited) (“W Legal”) instructed by Hermes, with a follow-up demand on 18 July 2025.[13]Cripps LLP (“Cripps”) for Aerotron responded on 29 August 2025 setting out its concerns, that included: Hermes’ defunct status and that Hermes would be unable to give good discharge of the debt as Amonra's assets, namely Hermes, being those of a defunct company, were believed to have devolved to the Maltese state. Further that Hermes has not taken the steps to be able to enforce the Maltese Judgments, namely an application to restore Hermes to the MBR or the step required under Article 53 of the Regulation. Aerotron also had concerns regarding anti money laundering compliance: Ashworth 1.[14]On 2 September 2025 W Legal responded essentially disputing the matters in Cripps’ letter. On 26 September 2025 Cripps confirmed that Aerotron would challenge recognition and enforcement of the Maltese Judgements. Correspondence between the parties continued throughout October.[15]On 6 October 2025 statutory form K was filed at the MBR, confirming that the present director of Hermes had resigned and that Mr Di Grandi had been appointed as the sole director of Hermes. The wording of the form suggests that this was effective from April 2023. Following application by Hermes on 21 October 2025 the Maltese court approved the Article 53 certificate (Annex 1) under the Regulation.[16]On 17 November 2025 W Legal served the Article 53 certificate and certified Maltese Judgments (including translated copies) on Aerotron, demanding payment by 1 December 2025. These steps enabled Hermes to seek enforcement of judgments in England and Wales.[17]On 19 January 2026 Mr Di Grandi, purportedly on behalf of Amonra, applied to the Maltese court for restoration of Amonra to the MBR. On 24 February 2026 the MBR, the respondent to that application, confirmed it would not oppose Amonra's restoration subject to necessary filings and payments, but submitted that Amonra had no standing to bring the application as it was defunct: see Mallia ⸹8. Those filings were audited accounts and other annual statements from 2011 and payment of EUR 40,000 in fines. Neither filing nor payment has yet occurred.[18]On 11 March 2026 the Maltese court allowed Mr Di Grandi to take carriage of the restoration application, accepting the MBR's position that he could not bring it via Amonra, as that company did not exist, being defunct, and adjourned the restoration hearing to May 2026.Grounds relied upon for the application[19]These are summarised in Ashworth 1 at §29 as:
“It would be contrary to English public policy to enforce a judgment where: 29.1. The Judgment Creditor is a defunct entity with no valid banking facilities; 29.2. The “directors” providing instructions may lack the authority to do so following the strike-off of the parent company; 29.3. The Judgment Debtor (Aerotron) faces a real risk of double jeopardy – paying the judgment sum now, only to be pursued later by the rightful owner of the asset (the Government of Malta or a court-appointed liquidator) because the payment to the unverified account did not constitute a valid discharge.”

Evidence of Foreign Law

[20]Aerotron relies on evidence from a Maltese lawyer, Mr Mallia. This was initially opposed by Hermes on the grounds that no permission was sought from the court to adduce or rely on foreign law evidence, that Mallia 1 goes beyond providing evidence of fact and traverses into expert opinion evidence, and Hermes and asks that such parts of the evidence should be struck out or disregarded: Cohen 1 ⸹38. At the hearing Counsel for Hermes was rather more sanguine about Mr Mallia’s evidence, in so far as it referred to Maltese law, but objected to speculation and opinion evidence, in particular Paragraph 33. My view is that evidence of Maltese law is required to inform the court as to the effect of the status of Amonra and Hermes; see Dicey, Morris & Collins on the Conflict of Laws 16th Ed. at 3-008 and Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45 per Lord Leggett at [148]. Further Hermes has had ample time since Mr Mallia’s evidence was provided to consult its own Maltese lawyers if it wished to dispute any parts of that evidence. Mr Cohen himself cites information relating to Maltese law obtained from Hermes’ Maltese solicitors at §16 and §18 of his statement. In any event the evidence of Maltese law in Mallia 1 has not been disputed. Nor do I need to determine any issue of foreign law for the purposes of this application. I am content to disregard Paragraph 33 and any other purely opinion evidence.The Relevant Law[21]There is no dispute between the parties as to the applicable legal principles, which I set out below, using for convenience Aerotron’s Counsel’s description at paragraphs 45-47 of his skeleton argument.[22]The relevant legislative scheme for the purposes of recognising and enforcing the Maltese Judgments in England and Wales is the Regulation, because: 1. The underlying proceedings were instituted in Malta on 24 February 2015; 2. Art. 66 provides that the Regulation applies to legal proceedings instituted on or after 10 January 2015; and 3. Article 67(2) (a) of the UK-EU Withdrawal Agreement provides for the continued application of the Regulation to the recognition and enforcement of judgments given in legal proceedings instituted before the end of the transition period (i.e. 31 December 2020). See 16th edition of Dicey, Morris & Collins on the Conflicts of Laws which includes a ‘Companion Volume’ (“CompV”) on EU Withdrawal Transition Issues, and ‘Chapter CompV 14’.[23]The streamlined recognition and enforcement in CPR 74.4A (as the CPR stood in 2020) as contained in the White Book (2020) is applicable (i.e. without the exequatur procedure). Thus, Aerotron applies for a refusal of recognition and/or enforcement under Articles 45 and 46.[24]Only the public policy ground is relevant to this application. Art 45 (1) (a)-(e) sets out the conditions for refusal of recognition by a member state.

(a) states that recognition can be refused where:

“recognition is manifestly contrary to public policy in the Member State”
. The White Book (2020) at para. 74.10.4 summarises the relevant principles to challenge recognition (which are the same for enforcement; see Art. 46 of the Regulation, which mirrors the grounds in Art. 45). The notes state:
“[…] there are a number of circumstances where the court of the State in which recognition is sought must not recognise a judgment. These are set out in art.45 of the Judgments Regulation [the Recast Brussels Regulation] and art.34 of the Lugano Convention as follows: (1) recognition is manifestly contrary to public policy in the Member State addressed;”
Summary of the Parties’ Submissions (1). Submissions of the Applicant[25]Aerotron considers the Maltese Judgments to be flawed for reasons outlined in its skeleton argument but accepts that Art. 45 prevents any reconsideration of the substance of a foreign judgment, so accepts its liability to pay Hermes, save for the argument based on the public policy exception. Aerotron relies on the following legal principles as to what is sufficient to constitute a public policy ground.[26]Aerotron accepts that public policy grounds for refusal are applicable only in exceptional cases see White Book (2020) 74.10.5:
“Although the public policy clause is narrowly construed, recourse to it must be regarded as being possible in exceptional circumstances, such as where there is a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought.”
See also Dicey at 5-002:
“a foreign law, which is otherwise applicable according to the English rules of the conflicts of laws, will not be applied or enforced in England if the law, or the result of its application, is contrary to public policy.”
[27]Aerotron relies on Krombach v Bamberski Case 7/98; [2001] QB 709 at [23], [36] and [37], from which the following principles can be derived:(i) What is a matter of public policy and what it required to protect it is a matter for each member state;(ii) To be engaged recognition and enforcement must be at variance to an unacceptable degree with the legal order of the state in which enforcement is sought in so far as it infringes a fundamental principle;(iii) There can be no review of the foreign judgment as to its substance;(iv) The infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the state in which enforcement is sought or of a right recognised as being fundamental within that legal order;(v) A discrepancy between the legal rule applied by the state of origin and that which would have been applied by the court of the state in which enforcement is sought is not a basis for refusal of recognition or enforcement.[28]Aerotron submits that being liable for a debt only once is a cornerstone of the English legal system and of the concept of debts and joint debts. It is submitted that it is logically aligned with the double jeopardy rule in the criminal sphere. Further in the insolvency context there is a rule against double proof, a principle which prevents two creditors from proving in respect of what is the same debt or claim in the winding up of insolvent company: see McPherson & Keay's Law of Company Liquidation 5th Ed. 12-018.[29]It is also submitted that in the wider context of enforcement, it is recognised that a party has a defence where payment of a debt will not discharge that same liability to another party, and thus in effect result in the risk of double liability. See the HL judgment in Société Eram Shipping Co Ltd v Cie Internationale de Navigation [2004] 1 AC 260 , at [17], [18], [19] and [26].. whereiIt was held that: “…the objections to its exercising a discretion to do so would be very strong on grounds of principle, comity and convenience” and “having to pay twice and the making of an order in such circumstances was “inequitable” and “contrary to natural justice”.[30]It is submitted that the recognition and enforcement of the Maltese Judgments would be “at variance to an unacceptable degree with the legal order of the state in which enforcement is sought inasmuch as it infringes a fundamental principle. It is further submitted that therule against double liability is such a fundamental principle. Aerotron does not accept Hermes’ position that there must be a policy difference between the state where the judgment was made and the state where enforcement is sought before recognition and enforcement is refused on such a ground.[31]It is submitted that the following circumstances (as outlined in Ashworth 1 at ⸹⸹10-12) demonstrate that there is a real risk of Aerotron incurring double liability for the same debt:(i) Amonra was struck off the MBR on 31 August 2023. The evidence of Mallia 1 ⸹⸹8-11 is that in such circumstances the assets of Amonra, (99.999% of the shares and all the rights to dividends in Hermes) vested in the Maltese state. Mr Di Grandi owns the other 0.001% of the shares. Without the restoration of Amonra to the MBR Mr Di Grandi has no monetary benefit in Hermes.(ii) Since January 2015 Hermes has had no activity save for the Maltese Judgments proceedings It lost its Air Operating Licence in 2015, has no registered aircraft, and appears to have ceased operations at about that time. It has not filed its accounts since its incorporation in 2011. The MBR has twice sought Hermes to be struck off the register of companies due its inactivity.(iii) A credit search against Hermes reveals numerous creditors, judgments, warrants and garnishee orders: Exhibit BA1.(iv) It appears that Hermes does not possess a standard commercial bank account capable of receiving international transfers, relying instead on Forex platforms and fintech solutions such as Revolut which Aerotron cannot verify: Ashworth 1 ⸹33.3. Although a credit search carried out by Aerotron states that Hermes has a bank account in Malta with Bank of Valletta p.l.c. (Exhibit BA1) Hermes has not proposed this bank as a means of payment. Further Aerotron attempted to explore whether Aps Bank of Malta, where Hermes previously held an account, would be a possible method of payment (see Paragraph 11 above).(v) There is doubt as to whether Mr Di Grandi has actual authority to represent Hermes and give instructions to its English solicitors in these circumstances. W Legal’s stated authority to act for Hermes originates from Mr Di Grandi’s status as sole director of Hermes; Cohen 1 at §37.4, relying on a written confirmation fromthe MBR dated 6 October 2025. It is submitted that the filed notification of Mr Di Grandi in the MBR showing him as the present director, although giving him apparent authority to represent Hermes, does not necessarily give him actual authority given the above circumstances. Aerotron considers that as it is aware or“had reason to believe” (relying on Criterion Properties plc v Stratford UK Properties LLC [2004] 1 WLR 1846) or is “put on inquiry by the facts of a transaction” as to a lack of authority: Chitty on Contracts 36th Ed. 22-066 Thus it cannot rely upon apparent authority as a defence to a claim from, e.g. the Maltese state or a liquidator. Even if W Legal asserts that Mr Di Grandi is properly a director (which has not been done) and has the authority of Hermes, that would be insufficient and the principal, i.e. Hermes, must assert the same: United Bank of Kuwait v Hammoud [1988] 1 W.L.R. 105. Aerotron is concerned that Mr Di Grandi seeks to take the payment of the judgment debt for Hermes for himself.(vi) In these circumstances, Aerotron faces a real risk of double jeopardy, as if it pays the judgment debt over to either W Legal or any of the other options presented by Hermes, it may face claims from either the Government of Malta as the owner of the assets of Amonra, or from a court or creditor appointed liquidator of Hermes.(vii) Aerotron would accept a discharge of the indebtedness from the Maltese Court and is prepared to pay the sum due into the Maltese Court, but Hermes have not proposed any method by which this could be done. (2). Submissions of the Respondent[32]The Respondent notes that the public policy exception arising under the Regulation, rather than under the common law, is relevant in three particular ways:(i) Art. 45(1)(a) is a provision of EU law and so falls to be purposively construed autonomously from the law of any given Member State, and to prevail over domestic law insofar as it applies;(ii) The test is expressed in strong terms: not merely that recognition is ‘contrary to public policy’ but that it must be ‘manifestly’ so;(iii) Art. 45(3) expressly excludes from the ordre public test in Art. 45(1)(a) any application to rules relating to jurisdiction.[33]The Respondent draws the court’s attention to the following authorities: Charles Taylor Adjusting Ltd v Starlight Shipping Co (Case C-590/21) (Third Chamber) [2023] 4 WLR 68 at [32]-[36]; Gjensidige ADB v Rhenus Logistic UAB (Case C-90/22) (First Chamber) [2024] ILPr 18 and Real Madrid Club de Football v EE (Case C-633/22) (Grand Chamber) [2024] ILPr 41. It is submitted that the following principles can be derived from these:(i) The purpose of the Regulation is to ensure rapid and simple recognition and enforcement of judgments given in a Member State, and the grounds in Article 45 are exhaustive bases of refusal: see Gjensidige at [60]; Real Madrid at [3].(ii) As a derogation from the general purpose of the Regulation, the public policy objection in Article 45(1)(a) must be construed strictly and will operate only in exceptional cases: see Gjensidige at [62]; Real Madrid at [34]. (iii)In principle, public policy exceptions are for Member States to formulate, but the limits of the concept are matters for the CJEU, and Member State public policy objections are reviewable under EU law: see Charles Taylor [33-34]; Gjensidige [63-64]; Real Madrid [35]. (iv) A discrepancy between how the decision has been made and how it would have been made in the courts of the Member State addressed is not sufficient, and there can be no challenge made to findings of fact or rulings of law made in the Member State of origin: see Charles Taylor Adjusting at [35]; Gjensidige at [65]; Real Madrid at [36]. (v) Article 45(1)(a) will be satisfied:“only where recognition of a judgment delivered in a Member State would be at variance to an unacceptable degree with the legal order of the Member State address inasmuch as it would breach a fundamental principle … the breach would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the Member State addressed or of a right being regarded as fundamental within that legal order”: Charles Taylor Adjusting Ltd v Starlight Shipping Co [2023] 4 WLR 68at [35]; and see Gjensidige at [66]; Real Madrid 18at [37].[34]The Respondent also referred the court to domestic cases applying those provisions: Orams v Apostolides [2011] QB 519; Smith v Huartas [2015] EWHC 3745 (Comm); Laserpoint v Prime Minister of Malta [2016] EWHC 1820 (QB); Lawrenson v Credit Immobilier de France Developpement [2023] EWHC 1378 (QB); London Steamship Mutual Insurance Association Limited v The Kingdom of Spain (“The Prestige”) [2024] 1 WLR 2331 and Olsen v Finansiel Stabilitet A/S [2025] EWHC 42 (KB) at [33]-[35], and a summary of the common law position in Timokhin v Timokhina [2026] EWHC 439 (KB) at [247]-[262].[35]Hermes notes that Aerotron’s solicitors’ letter of 29 August 2025 relied on previously asserted grounds for Aerotron’s non-payment, namely fraud and anti-money laundering concerns, Amonra being struck off the Register, the possible lack of authority of Hermes’ directors, and the possibility of Hermes being impecunious and unable to repay if payment was wrongly made to it, but that being “manifestly contrary to public policy” was raised for the first time in that letter, but on different grounds that are now relied upon.[36]It is submitted that Aerotron does not distinguish between the status of Amonra which has been struck off the MBR (although an application has been made to restore it to the MBR: Cohen1 at §37.2) and Hermes, which Ashworth 1 at ⸹8 describes as “for all intents and purposes, a defunct entity” whereasMallia 1 at ⸹14 describes it as having active status on the MBR. A company that has ceased to trade and is dormant still has legal personality and can enforce its debts: Pepperall J in WRB(NI) Ltd v Henry Construction Projects [2023] EWHC 278 (TCC) at [1]-[3].[37]Hermes does not accept that it has no valid banking facilities. Cohen 1 at ⸹37.5 refers to the Revolut account, and the Ocean account, details of which were provided by Hermes’ Maltese solicitors, and W Legal have provided details of its US dollar client account to Aerotron’s solicitors on a number of occasions. Further, Revolut has, as from March 2026, a full UK banking licence.[38]With regard to the risk of a claim by the Maltese state, Hermes makes the point that even if Amonra’s assets, namely the 999.999% shareholding in Hermes, were to devolve to the state, a shareholder has no direct claim to enforce the debts owed to the company. A company has a legal entity distinct from its shareholder: see Lord Sumption in Prest v Petrodel [2013] 2 AC 415 at [8]. The dissolution of Amonra is therefore irrelevant to whether the debt is enforceable.[39]With regard to the issue of Mr Di Grandi’s authority, Hermes refers to its Memorandum of Association registered on 17 November 2011, (Exhibit AM1 8) where Mr Paolo Di Grandi is recorded as Hermes’ first director. Mr Vincenzo Di Grandi is recorded as the first Company Secretary and shareholder of 1 ordinary B share (which gives no rights to dividends or to participate in a distribution of assets upon a winding up). Section 11 of the Memorandum of Association states:
“The Company shall be represented in judicial proceedings by any of the directors or Mr Vincenzo Di Grandi (Italian Passport No AA2701857), without prejudice to the power of the above at all times to represent the company as aforesaid by any person or persons duly authorised by the Board for the purpose.”
Thus it is submitted that even if Vincenzo Di Grandi was not a director, and prior to when he became a director (which Hermes says was in April 2023) he still had authority to instruct W Legal on behalf of Hermes in this and any other legal proceedings.[40]Further, it is submitted that there is no evidence to support the claim that Hermes is likely to be insolvent, as there is insufficient evidence of substantial indebtedness and no mention of any creditors that Hermes might have. There is further no evidence that when Mr Di Grandi filed form K in the MBR notifying that he was appointed a director in April 2023, some 2.5 years afterwards, that this was done for a fraudulent purpose. It is submitted that the most likely explanation is that this was simply a late filing, as it was made at the same time that other late filings of annual returns,[41]It is also submitted that there is no basis for any concern by Aerotron in respect of payment to either W Legal’s client account or to the Revolut account as both accounts would need to have anti-money laundering and “know your client” checks carried out.[42]Finally, it is submitted that no irremediable differences between the public policies of Malta and England & Wales have been identified, and that this would be required as the ordre public exception now in Article 45 (1) (a) is a backstop to allow a Member State to insist a particular difference between its legal order and that of the Member State of origin is so fundamental that it should be permitted not to enforce the foreign judgment. It is submitted that there is no evidence of any Maltese public policy that is at variance with any English public policy. Discussion Whether a risk of double liability would be contrary to public policy

Discussion

[43]In Kromback v Bamberski (ECJ) (Case 7/99) at [22] it is said that:
“…contracting states in principle remain free to determine, by virtue of the proviso in article 27(1) of the Convention, to determine, according to their own conceptions, what public policy requires,” but that “the limits of that concept are a matter for interpretation of the Convention.” and at [37], that to be engaged, recognition and enforcement: “would be at variance to an unacceptable degree with the legal order of the state in which enforcement is sought inasmuch as it infringes a fundamental principle.” and “the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the state in which enforcement is sought or of a right recognised as being fundamental within that legal order.”
This is reinforced in the White Book (2020) 74.10.5:
“Although the public policy clause is narrowly construed, recourse to it must be regarded as being possible in exceptional circumstances, such as where there is a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought.”
[44]In Charles Taylor Adjusting Ltd v Starlight Shipping Co (Case C-590/21) (Third Chamber) [2023] 4 WLR 68 at [32]-[36], applying the public policy exception in Article 34(1)(a) of the Brussels I Regulation 44/2001 (the direct predecessor to Article 45(1)(a)), it was held that the concept of “public policy” must be “interpreted strictly inasmuch as it constitutes an obstacle to the attainment of one of the fundamental objectives” of Article 34 of the 2001 Regulation. See also Gjensidige ADB v Rhenus Logistic UAB (Case C-90/22) (First Chamber) [2024] ILPr 18 at [60] – [66]; and Real Madrid Club de Football v EE (Case C-633/22) (Grand Chamber) [2024] ILPr 41at [35].[45]There are few reported cases under common law: see Dexter Dias J’s summary in Timokhin v Timokhina [2026] EWHC 439 (KB) at [247]-[262] of cases where a public policy defence in differing circumstances has succeeded or failed. In Société Eram Shipping Co Ltd v Cie Internationale de Navigation [2004] 1 AC 260 at [17], it is stated by Lord Bingham:
“The House was referred to no reported case in which the English court has made a final third party debt order or garnishee order absolute in relation to a foreign debt, although (with one exception) the refusal has been put on discretionary grounds; and discretion has been exercised against the making of an order even where the debt to be attached is situated in this country where it has appeared that the third party, despite the discharge of its debt to the judgment debtor as a matter of English law, may be at risk elsewhere of compulsion to pay a second time." At [18] reference is made to Martin v Nadel [1906] 2 KB 26,where an absolute garnishee order was refused because the garnishee bank was at risk of having to pay twice, and it was said that the making of such an order in such circumstances was “inequitable” and “contrary to natural justice”
. And at [26] Lord Bingham said:
“It is not in my opinion open to the court to make an order in a case, such as the present, where it is clear or appears that the making of the order will not discharge the debt of the third party or garner she to the judgement debtor according to the law which governs that debt. In practical terms it does not matter very much whether the house rules that the court has no jurisdiction to make an order in such a case or that the court has a discretion which should always be exercised against the making of an order in such a case. But the former seems to me the preferable analysis, since I would not accept that the court has power to make an order which, if made, would lack what has been legislatively stipulated to be necessary consequences of such an order….. …..an order may be made relating to a chose in action sited abroad if it appears that by the law applicable in that situs the English order would be recognised as discharging pro tanto the liability of the third party to the judgment debtor. If (contrary to my opinion) the English court had jurisdiction to make an order in a case such as the present, the objections to it's exercising a discretion to do so would be very strong on grounds of principle, comity and convenience.”
[46]Eram Shipping was a case under the common law, rather than under the Regulation, but may in my judgment constitute sufficient authority is to support the submission that a real risk of double payment would be contrary to public policy in this jurisdiction, although the discussion was not in relation to a public policy defence.[47]Some more recent domestic authorities have considered whether a public policy ground is engaged in applications relying on the public policy ground: Orams v Apostolides [2011] QB 519; Smith v Huartas [2015] EWHC 3745 (Comm), 42; Laserpoint v Prime Minister of Malta [2016] EWHC 1820 (QB); Lawrenson v Credit Immobilier de France Developpement [2023] EWHC 1378 (QB); London Steamship Mutual Insurance Association Limited v The Kingdom of Spain (“The Prestige”) [2024] 1 WLR 2331; and Olsen v Finansiel Stabilitet A/S [2025] EWHC 42 (KB) at [33]-[35]. However none of those cases rely on the risk of double payment.[48]Article 45 (1) (a) of the Regulation provides that the exceptions to recognition will be satisfied:
“…only where recognition of a judgment delivered in a Member State would be at variance to an unacceptable degree with the legal order of the Member State addressed inasmuch as it would breach a fundamental principle … the breach would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the Member State addressed or of a right being regarded as fundamental within that legal order.”
[49]The Respondent drew my attention to a recent decision of the Supreme Court of Ireland in Scully v Coucal Limited [2025] IESC 20 and the discussion as to how common law courts apply Article 45 (1)(a) at [31]-[53]. I note that in the discussion of the relevant caselaw there is a reference to Fairfield Sentry Ltd (in liquidation) v Citco Bank Nederland NV [2012] IEHC at [91] where the judge considered whether recognition of a Dutch attachment order should be refused because it enabled one unsecured creditor to obtain security, which it was argued would cut across a fundamental principle of Irish insolvency law, namely the pari passu treatment of all unsecure creditors, but the judge decided that the principle had not attained the fundamental status required within the Irish legal order to constitute public policy.[50]Although the application notice seeks refusal of both recognition and enforcement of the Maltese Judgments, in practice Aerotron agrees to satisfy its indebtedness under those judgments, and it is only enforcement that it challenges, but the same provisions apply to refusal of enforcement: see Article 46. However, Aerotron has not identified whether the risk of double payment would be contrary to the public policy of Malta, i.e. whether the Maltese courts’ approach to the factors identified by Aerotron as constituting a risk of double payment would be “at variance to an unacceptable degree” to public policy in respect of enforcement of the judgments in this jurisdiction. The question of enforcement did not arise in the Maltese proceedings. Although Aerotron does not accept that the Regulation requires the public policy in the state of the judgment to be different from that of the state where enforcement is sought, I consider that both the wording of Article (1)(c) and the case law as outlined in Timokhin at [251]- [253] makes it apparent that this is a requirement.[51]In any event I am not convinced that a “risk” of liability to double payment would be sufficient to constitute a “manifest breach of a rule of law” in this jurisdiction. as the only authority on the point is Eram Shipping, which was not considering public policy, and there are no directly relevant cases under the Regulation. However, if I am wrong in that view I will consider the extent of such a risk.

Whether there is a real risk on the facts in this case

[52]Aerotron relies on two factors namely: (i) the Maltese state may make a claim if the assets of Amonra, namely 99.999% of the shares of Hermes, devolve to it following the striking off of Amonra from the MBR, and the failure of the application to restore Amonra to the MBR; and (ii). Hermes is insolvent and if a liquidator is appointed, they may make a claim against Aerotron if the amount of the judgment debt is not available for distribution to the creditors of Hermes.[53]Both those factors are only possibilities, not certainties. With regard to a potential claim by the Government of Malta, if Amonra’s shares in Hermes devolve to the Maltese state it is possible that the only asset that Hermes will have will be the sums paid by Aerotron, but those funds will not be available to shareholders, who would only be entitled to dividends. If Amonra is not restored to the MBR, the Government, as a shareholder in Hermes, would have no status (if Maltese law is the same as English law on this point) to recover assets of that company. Also Mr Mallia gives evidence at ⸹13 that:
“… There is currently no standard operating procedure in place for governments to take charge of assets which have been devolved onto it, with the exception of cash in bank accounts held by companies which are struck off as default.”
[54]With regard to a potential claim by a liquidator of Hermes, there is no evidence in respect of Hermes’ financial health, but equally no evidence of the imminent likelihood of a liquidator being appointed. That may of course be because there are no, or very little, assets for distribution, or no unpaid creditors. Hermes has put forward no evidence in this regard. Given the evidence of Hermes’ dormant status, its failure to file accounts over many years, the two attempts made by the MBR to strike Hermes from that register, and the defunct status of its parent company Amonra (see Mallia ⸹8), I consider that there is a strong likelihood that Hermes may be insolvent. Thus it is possible that if the sum due under the Maltese Judgments is paid into an account in Hermes’ name it may encourage any unpaid creditors to seek to appoint a liquidator so that the sums in such account could be used for distributions to creditors.[55]The issue of the actual authority of Mr Di Grandi to represent Hermes is another factor for consideration. Aerotron relies on the filings in the MBR showing that the filing to remove Mr Mario Cini as a director and appoint Mr Di Grandi as director on 6 October 2025, by means of a form with a date of 25 April 2023, i.e. 2.5 years before the filing. Aerotron refers to the coincidence of the date of filing being very shortly after Aerotron’s solicitors raised the issue of Mr Di Grandi’s authority in a letter of 29 August 2025, which it says make it highly likely that Mr Di Grandi retrospectively attempted to appoint himself a director in October 2025 after Aerotron raised it as a defence to payment of the Maltese Judgments: see Mallia 1 at ⸹⸹29-30 where Mr Mallia says:
“This filing is rather odd for two reasons: firstly, in terms of the CA, [Malta Court of Appeal] a director’s resignation and appointment must be notified to the MBR within 14 days of the event happening, and failure to do so leads to the imposition of penalties on a company and its officers. In this instance, the MBR was only notified of this change around two and a half years after the event ostensibly happened. Secondly, and more importantly, the effective date of Mr Di Grandi’s appointment is indicated as the 25th April 2023, which is very close to the date around which Amonra -HAL’s shareholder – would have been first notified of the MBR’s intention to strike Amonra off. Amonra’s strike off was effective as from the 31st August 2023.”
[56]Further Mr Mallia notes at ⸹⸹31-32 that:
“31. As from the date of Amonra’s strike off, the right to appoint directors to sit on the Board of Directors of HAL was a right which vested with the Government of Malta as the holder of 999,999 Ordinary A shares in HAL. It was from that date, and continues to be, the Government of Malta’s right to appoint directors of HAL 32. The right to appoint directors is generally exercised at annual general meetings which, in terms of Article 128(1) of the CA, every company is statutory required to hold “in each year.”
It is primarily the responsibility of directors to call annual general meetings as required by law. As the main shareholder of HAL, the Government of Malta has the right to attend annual general meetings of HAL and appoint such directors as it sees fit.”[57]Mr Mallia does not go so far as to say that the Government of Malta has taken any such action, and there is no evidence as to whether any annual general meetings have been called, and no filing of any appointment of a director by the Government. It may simply be that the late filings were made at the same time as the late filings of annual returns, as an attempt to put Hermes on a proper footing with the MBR, but I consider that it is also equally possible that the appointment of Mr Di Grandi has been backed dated for the reasons Mr Mallia suggests. Aerotron relies on this as evidence of the possibility that it may be regarded has having been put on inquiry, or given reason to believe, that Mr Di Grandi does not have actual authority to represent Hermes. I am unable to reach a conclusion on the available evidence.[58]Aerotron also raises concerns that Mr Di Grandi will not use the funds received from payment of the judgment debt to pay creditors of Hermes, as if the funds are intended to be used to pay creditors it is submitted that he would have no incentive to press for repayment of the judgment debt. That is effectively a charge that Mr Di Grandi would be likely to act fraudulently, without evidence to support such a claim. There is not, in my view, a sufficient basis to disregard Mr Di Grandi’s apparent authority as director or as authorised by the Memorandum of Association (see Paragraph 37 above). He has been so authorised, and he has been company secretary since Hermes’ incorporation in 2011 and is now shown as the sole director in the MBR. There is no evidence that the MBR has challenged the late filing of his appointment as a director. There are, in my view, insufficient grounds to demonstrate that Mr Di Grandi does not have actual authority to represent Hermes, or that Aerotron should have been put on inquiry or had reason to believe that he did not, such that a liquidator would be likely to succeed in such a claim. I note further that in Cripps’ letter to W Legal dated 29 August 2025 at paragraph 5, it is stated:
“Aerotron’s concerns might have been addressed where (sic) your client had allowed Fenech & Fenech Advocates [Hermes Maltese lawyers] to pay into their solicitors’ bank account.”
It appears that Aerotron accepted that Mr Di Grandi did have actual authority to instruct Fenech & Fenech on behalf of Hermes. In any event, the question of Mr Di Grandi’s actual authority would have to be determined under Maltese law, and I have no evidence of Maltese law on this issue.[59]If a payment is made to W Legal’s client account, with suitable wording, (which the parties should be able to agree) for Hermes and W Legal to acknowledge that the funds to be transferred are agreed to be in full and final settlement of Aerotron’s liability to pay the judgment debt and any interest and costs, and that Hermes has no further claim against Aerotron arising out of the Maltese proceedings, this would, in my view, be likely to prevent any claim by a future liquidator from claiming successfully against Aerotron for the same sum. W Legal would also be required to carry out its own anti- money laundering and Know Your Client checks in accordance with English law.[60]Another factor which is relevant, is that if enforcement is refused by this court, and Aerotron has no assets in Malta or any other EU state, Hermes would not be able to recover the amount due under the judgment debt even if neither of the eventualities relied upon by Aerotron occur.

Conclusion

[61]Even if the risk of double payment could be regarded as a reason for a refusal by this court to recognise the Maltese Judgments, or the enforcement of the same, as manifestly contrary to public policy in this jurisdiction, I do not consider that there is such a real risk of the same in this case for the reasons given. The Applicant’s application is therefore dismissed.

ADDENDUM

[62]Following the hearing, I requested the parties’ legal representatives to comment on the following paragraph in Mallia 1 at ⸹39, as I realised that neither party had made any submissions about this:
“Lastly, I can confirm that WH Partners (Mr Mallia’s firm) is informed by UK solicitors, Cripps LLP as retained by Aerotron Limited, that they same (sic) holds on its client account funds paid by Aerotron Limited sufficient to satisfy the Judgment Debt, and that upon receipt of the said funds, WH Partners can proceed to file in the Maltese courts a schedule of deposit in favour of HAL, together with funds equivalent in amount to the Judgement Debt, in order for the Judgment Debt to be satisfied.”
[63]This solution, if possible, would in my view be likely to prevent any misuse of the funds by Hermes or prevent any claim by either the Maltese state or a liquidator against Aerotron, and would be likely give the best possible discharge to Aerotron in relation to the judgment debt.[64]W Legal responded by letter of 6 May 2026 to state that Hermes does not agree that payment of the Judgment debt into the Maltese Court would constitute a valid discharge of Aerotron’s liability, unless the creditor had refused to receive payment if tendered, relying on Articles 1152(1) and 1173-1178 of sub-title V to Chapter 16 of the Malta Civil Code.[65]Aerotron’s response dated 8 May 2026 is to the effect that under Article 1173 of the Maltese Civil Code, and subject to Articles and 1174 and 1175 of the same, a debtor can deposit a sum into the Maltese Court, and once deposited, the judgment creditor can apply to withdraw those funds, and if the payment out is made out of the Maltese Court the judgment debt is settled and the judgment debtor’s liability discharged. Alternatively, if the judgment creditor attempted enforcement of the debt the judgment debtor could assert that an equivalent sum had been paid into court and exits as security. The Maltese Court would then go on to determine whether the provisions in Articles 11773 and 1175 have been met. In that respect Aerotron submits that tender of payment has been made. Aerotron makes further points at Paragraphs 6 to 8 of its response, but these seem to me to be matters not of Maltese law, but rather and submissions and evidence that could have been before the court at the hearing so I will disregard them.[66]There seems effectively to be agreement between the parties as to Maltese law on the issue of whether payment into court is possible, but disagreement as to whether payment has been tendered or an offer of payment refused and whether a valid discharge of the debt can be given. Those are matters of Maltese law that I cannot resolve. However, this would seem to be a sensible resolution to the impasse between the parties, if it is possible.

Cited in 1 later judgment