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United Kingdom House of Lords Decisions
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Cite as:  UKHL 2,  AC 591
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Die Mercurii, 5° Martii 1975
HOUSE OF LORDS
BLACK-CLAWSON INTERNATIONAL LIMITED
Lord Simon of Glaisdale
The main question at issue in
this case is the proper interpretation of
section 8 of the Foreign Judgments (Reciprocal Enforcement) Act, 1933.
The facts are not in dispute: they have been set out by my noble and learned
friends and I shall not repeat them. It is sufficient to say at this point that
the Respondents, a German company, were sued by the Appellants in
Germany in respect of dishonoured bills of exchange. The action was dis-
missed as being time barred without any enquiry into the merits. The
German period of limitation is shorter than in England and the Appellants
now seek to raise the same question here. The main issue in this case is
whether section 8 entitles the Respondents to rely on the German judgment
as conclusive on the merits.
In this case it appears to me to
be unusually important to consider as aids
to construction all other material which the law allows us to look at, and I
shall first state my view on that matter. We often say that we are looking
for the intention of Parliament, but that is not quite accurate. We are
seeking the meaning of the words which Parliament used. We are seeking
not what Parliament meant but the true meaning of what they said. In
the comparatively few cases where the words of a statutory provision are
only capable of having one meaning, that is an end of the matter and no
further enquiry is permissible. But that certainly does not apply to section 8.
One must first read the words in
the context of the Act read as a whole,
but one is entitled to go beyond that. The general rule in construing any
document is that one should put oneself " in the shoes " of the maker or
makers and take into account relevant facts known to them when the docu-
ment was made. The same must apply to Acts of Parliament subject to one
qualification. An Act is addressed to all the lieges and it would seem wrong
lo take into account anything that was not public knowledge at the time.
That may be common knowledge at the time or it may be some published
information which Parliament can be presumed to have had in mind.
It has always been said to be
important to consider the " mischief"
which the Act was apparently intended to remedy. The word " mischief "
is traditional. I would expand it in this way. In addition to reading the
Act you look at the facts presumed to be known to Parliament when the
Bill which became the Act in question was before it, and you consider
whether there is disclosed some unsatisfactory state of affairs which Parlia-
ment can properly be supposed to have intended to remedy by the Act.
There is a presumption which can be stated in various ways. One is that
in the absence of any clear indication to the contrary Parliament can be
presumed not to have altered the common law farther than was necessary
to remedy the "mischief". Of course it may and quite often does go
farther. But the principle is that it the enactment is ambiguous, that meaning
which relates the scope of the Act to the mischief should be taken rather
than a different or wider meaning which the contemporary situation did not
call for. The mischief which this Act was intended to remedy may have
been common knowledge forty years ago. I do not think that it is today.
But it so happens that a Committee including many eminent and highly
skilled members made a full investigation of the matter and reported some
months before the Act was passed (Cmd. 4213K
I think that we can take this
Report as accurately stating the " mischief "
and the law as it was then understood to be, and therefore we are fully
entitled to look at those parts of the Report which deal with those matters.
But the Report contains a great
deal more than that. It contains recom-
mendations, a draft Bill and other instruments intended to embody those
recommendations, and comments on what the Committee thought the Bill
achieved. The draft Bill corresponds in all material respects with the Act
so it is clear that Parliament adopted the recommendations of the Committee.
But nevertheless I do not think that we are entitled to take any of this into
account in construing the Act.
Construction of the provisions
of an Act is for the Court and for no one
else. This may seem technical but it is good sense. Occasionally we can
find clear evidence of what was intended, more often any such evidence, if
there is any, is vague and uncertain. If we are to take into account evidence
of Parliament's intention the first thing we must do is to reverse our present
practice with regard to consulting Hansard. I have more than once drawn
attention to the practical difficulties that would involve but the difficulty goes
deeper. The questions which give rise to debate are rarely those which later
have to be decided by the Courts. One might take the views of the promoters
of a Bill as an indication of the intention of Parliament but any view the
promoters may have had about questions which later come before the Court
will not often appear in Hansard and often those questions have never
occurred to the promoters. At best we might get material from which a more
or less dubious inference might be drawn as to what the promoters intended
or would have intended if they had thought about the matter, and it would
I think generally be dangerous to attach weight to what some other members
of either House may have said. The difficulties in assessing any references
there might have been in Parliament to the question before the Court are
such that in my view our best course is to adhere to present practice.
If we are to refrain from
considering expressions of intention in Parliament
it appears to me that a fortiori we should disregard expressions of intention
by Committees or Royal Commissions which reported before the Bill was
introduced. I may add that we did in fact examine the whole of this Report
—it would have been difficult to avoid that—but I am left in some doubt as
to how the Committee would have answered some of the questions which we
have now to answer, because I do not think that they were ever considered
by the Committee.
The Committee in paragraph 2 set
out the fact that, whereas we accept
foreign judgments as conclusive, foreign Courts do not in effect recognise
English judgments, so that a successful plaintiff here has to fight his case
over again on the merits. They regarded this as a substantial grievance.
This could be avoided by making conventions with foreign countries, but the
Committee say that there were two difficulties. First technically we do not
enforce the foreign judgment as such, and second that our law depends on
case law and is not formulated in the statute book. There is nowhere in the
Report any suggestion of any complaint, grievance or difficulty with regard
to British or foreign judgments in favour of the defendant, and I think that
it is quite clear that they did not consider that there was any " mischief " with
regard to such judgments which required the intervention of Parliament.
Moreover when they set out the
existing law as they understood it, they
do so in a way which was entirely correct if one only has regard to a judgment
in favour of the plaintiff or a judgment for costs in favour of a successful
defendant, but was clearly not correct with regard to a judgment dismissing
the plaintiff's action. A Committee of such eminence could not have been
mistaken about the law so the only possible inference is that the Committee
intended only to deal with plaintiffs' judgments.
The difficulty with regard to
judgments for defendants is that an action may
be dismissed for a variety of reasons: the case may have been decided against
the plaintiff on the merits or for some quite different reason such as a time
bar or some other preliminary plea.
That matter was dealt with by a
strong Court in Harris v. Quine (1869)
L.R. 4 Q.B. 653 when it was held that dismissal of an action in the Isle of
Man because of a short period of limitation which did not destroy the
plaintiff's right but merely
made it unenforceable, was not a bar to subsequent
proceedings in England on the same cause of action.
There is not much reference to
the case in subsequent authorities but it
was noted in the text books and in the sixty odd years which elapsed before
the Committee's Report there is no indication of any disapproval of it. But
the Committee never mentioned it or its subject matter. The only possible
inference is that they did not think it relevant to their enquiry.
It has been said that it would
be strange that the Act should only deal
with judgments in favour of a plaintiff and omit dealing with judgments in
favour of a defendant. Looking to the matters which I have dealt with I
do not find that in the least strange.
It is clear that the Act did not
intend to codify the whole law as to the
effect of foreign judgments. Section 8(3) is only one proof of that. So I
approach section 8 with the expectation that it has a limited scope.
I now turn to the Act. Clearly
its principal purpose—dealt with in Part I
—was to facilitate the enforcement here of rights given by foreign judgments
to recover sums of money. Besides rights given to plaintiffs in foreign
actions, such rights might be given to defendants on counterclaims or under
orders for costs in favour of a successful defendant. These I may call
plaintiffs' judgments. But Part I has no application to defendants' judgments
which entitle them to nothing but merely protects them against claims made
against them. It would I think be a misuse of language to say that such a
judgment can be enforced. It can only be used as a shield or defence.
I think that section 8 is
ambiguous so this is a case where it is permissible
to look at the long title. It states that the Act makes provision for the
enforcement here of certain foreign judgments, for facilitating the enforce-
ment abroad of judgments given here and " for other purposes in connection
with " the matters aforesaid ". The matters aforesaid all refer to plaintiffs'
judgments which are enforceable. I do not see here any indication of an
intention to deal with judgments which are not enforceable.
Section 8 is in Part II under
the heading " Miscellaneous and General ".
I do not think that the oilier sections in Part II throw any light on its scope.
The first question which arises
is whether section 8 has any application
at all to defendants' judgments. There is provision in the Act for severance
and no doubt it applies to those parts of defendants' judgments which entitle
the defendant to some remedy. But does the section apply at all to a
judgment or part of a judgment which merely absolves the defendant or
dismisses the action against him? Looking to all the matters I have men-
tioned they seem to me to make it probable that section 8 was not intended
to deal with such judgments at all.
Section 8 provides as follows:
"8.—(1) Subject to
the provisions of this section, a judgment to
" which Part I of this Act applies or would have applied if a sum of
" money had been payable thereunder, whether it can be registered or
" not, and whether, if it can be registered, it is registered or not, shall
" be recognised in any court in the United Kingdom as conclusive
" between the parties thereto in all proceedings founded on the same
" cause of action and may be relied on by way of defence or counter-
" claim in any such proceedings.
" (2) This section shall not apply in the case of any judgment: —
" (a) where the
judgment has been registered and the registration
" thereof has been set aside on some ground other than—
" (i) that a sum of money was not payable under the judgment; or
" (ii) that the judgment had been wholly or partly satisfied ; or
" (iii) that at the date of the application the judgment could not be
" enforced by execution in the country of the original court:
" (b) where the
judgment has not been registered, it is shown (whether
" it could have been registered or not) that if it had been registered
" the registration thereof would have been set aside on an applica-
" tion for that purpose on some ground other than one of the
" grounds specified in paragraph (a) of this subsection.
" (3) Nothing in this
section shall be taken to prevent any court in
" the United Kingdom recognising any judgment as conclusive of any
" matter of law or fact decided therein if that judgment would have been
" so recognised before the passing of this Act."
I find the first few lines very
obscure. The section sets out to deal with a
judgment to which Part I applies " or would have applied if a sum of
" money had been payable thereunder ". A plaintiff's judgment may order
specific performance or it may be merely a declaration. It is easy to apply
these words in such cases. But I find it extremely difficult to apply them to
defendants' judgments. The essence of such a judgment is that the defendant
has succeeded and that he has no liability to pay or do anything. No sum
of money could possibly have been payable under such a judgment. It is
only by putting an unnatural meaning on these words that defendants'
judgments can be brought within the section at all.
I cannot believe that good
draftsmen—as this Committee certainly were—
would have employed such an obscure expression if the intention had
been to deal with defendants' judgments. It was argued that it throws
us back to section 1 (2) which is in these terms:
" (2) Any judgment of a
superior court of a foreign country to
" which this Part of this Act extends, other than a judgment of such
" a court given on appeal from a court which is not a superior court,
" shall be a judgment to which this Part of this Act applies, if—
" (a) it is final and conclusive as between the parties thereto; and
" (b) there is
payable thereunder a sum of money, not being a sum
" payable in respect of taxes or other charges of a like nature
" or in respect of a fine or other penalty ; and
" (c) it is given
after the coming into operation of the Order in
" Council directing that this Part of this Act shall extend to that
" foreign country.
" (3) For the purposes of
this section, a judgment shall be deemed
" to be final and conclusive notwithstanding that an appeal may be
" pending against it, or that it may still be subject to appeal, in
" the courts of the country of the original court."
It is said that the effect of
these obscure words in section 8(1) is to make
the section apply to all judgments which would come within the terms of
section 1(2) if condition (b) were omitted. Besides the fact that this would
be a very odd way of bringing in another section of the Act that cannot be
right. If (b) is omitted then section 1(2) would apply to every kind of
judgment including judgments on status, family matters and in rem. No
one suggests that section 8 was meant to deal with them. I am not at all
clear what meaning the Respondents would attach to these obscure words
if mere reference back to section 1 (2) will not do.
Then it is said that the
references in the last lines of section 8(1) to
defence and counterclaim shew that the section must have been intended
to deal with defendants' judgments. I do not agree.
It is necessary to look closely
at the preceding words in the section. It
makes judgments to which it applies conclusive " in all proceedings founded
"on the same cause of action". I think that cause of action normally
means a right alleged to flow from the facts pleaded. But often cause of
action is used to denote those facts, for example, a statute may provide
that the cause of action must arise within a particular area: that must
mean the facts and not the right.
Here I think it must mean the
facts. Suppose that the defendant abroad
raises proceedings here on the same facts as those in the foreign case.
If cause of action meant right only one person has the cause of action
and the section would not apply at all because the proceedings here would
not be founded on the same cause of action. That could not have been
But if cause of action refers to
the facts there is no difficulty in applying
this part of the section even if the section has no application to defendants'
judgments. A successful plaintiff abroad is entitled to disregard his foreign
judgment and sue here again on his original right because a right does
not merge in a foreign judgment. It might pay him to do that because
he thinks that he could get here an even more favourable judgment than
he got abroad. But this section would prevent that. The original defendant
could plead the foreign plaintiff's judgment as a defence to prevent the
plaintiff's attempt to do better for himself here. Similarly if the successful
plaintiff abroad held an unsatisfied foreign judgment and he were sued
here in some other cause of action, he could counterclaim in respect of
his unsatisfied foreign judgment. So there is ample scope for the operation
of the last part of the subsection even if the section applies solely to
I am therefore of opinion that
section 8 has no application to the present
case and does not entitle the Respondent to rely on the foreign judgment
on a preliminary point to prevent enquiry into the merits here. If further
justification for my view be needed, it would I think be unjust if a foreign
judgment on a preliminary point were in itself sufficient to prevent enquiry
into the merits here.
I may add that if it were held
that the section does apply to defendants'
judgments, I would, perhaps with difficulty, agree with those of your
Lordships who think that the Appellant should succeed.
Then the Respondents maintain
that Harris v. Quine was wrongly decided.
I am clearly of opinion for reasons given by your Lordships that the
decision was right.
Finally I agree with your
Lordships in the matter of discretion. I would
therefore allow the appeal.
Under a contract made in
December 1961 the Appellants agreed to sell
paper making machinery to a German company, whose rights and liabilities
were acquired by the Respondents as a result of a merger in 1970. It will
be convenient to refer to both companies as the Respondents. The price
to be paid was £1,210,162. As part payment of the purchase price the
Respondents accepted 20 Bills of Exchange drawn on them by the Appel-
lants. Each Bill had a face value of £48,406 and was drawn, negotiated and
payable in London. Two Bills were to mature every six months between
August 1963 and February 1968.
In 1965 the Respondents
complained of delays in delivery and of defects
in the machinery delivered. This was referred to arbitration and despite
the time that has elapsed, that arbitration has not yet been concluded and is
not likely to be for a considerable time.
Thereafter the Respondents
refused to honour any of the Bills which
Two Bills which had been
dishonoured when presented by Barclays Bank
by whom they had been discounted, were the subject of litigation in this
country and in Germany. The Bank's claim was strenuously resisted at every
stage. When judgment was given
in this country for the Bank, it was not
satisfied. When the Bank sought to enforce the judgment in Germany, that
was resisted on the ground that the Respondents had had no opportunity
of stating their case. This plea was finally rejected by the Federal Supreme
Court of Germany on the 25th March, 1970.
In view of the difficulties that
the Bank had encountered in getting pay-
ment of the amounts due on these two Bills, when two Bills due for payment
on the 31st August, 1966 were dishonoured, the Bank called on the Export
Credit Guarantee Department to implement a guarantee they had given to
the Bank and that Department in turn called on the Appellants to implement
their undertaking to indemnify the Department against any monies the
Department had to pay the Bank. In accordance with their agreement with
the Bank, the Appellants bought these Bills in August 1972 and so became
holders of them for value.
In the same month, on the 24th
August, 1972 the Appellants began pro-
ceedings against the Respondents in the District Court of Munich. Five days
later the Appellants applied ex parte in this country for leave to issue a writ
against the Respondents claiming the amount due on the two Bills and
interest and also asking leave to serve notice of the writ on the Respondents
in Germany. They feared that the proceedings in Germany might be held
to be time barred in Germany ; and if the writ was not issued, their claim
would shortly have become statute barred in this country. They were given
the leave for which they asked.
On the 30th November, 1972 the
District Court of Munich dismissed the
Appellants' claim, holding that under German law the applicable period of
limitation was three years and so that the Appellants' claim was time barred.
Notice of the issue of the writ
was served on the Respondents on the 14th
The Respondents did not enter an
appearance but by summons sought an
order that the writ, service of notice thereof and all subsequent proceedings
thereon should be set aside. The Master refused to make that order and
the Respondents' appeal to Talbot J., The Judge in Chambers, was dis-
missed. The Respondents then appealed to the Court of Appeal which
gave judgment in their favour on the 19th March 1974.
On the 27th March, 1974 the
Munich Court of Appeal allowed the Appel-
lants' appeal against the decision of the District Court on the ground that
the English period of limitation, namely six years, was applicable to their
claim. The Appeal Court referred the case back to the District Court for
continuation of the proceedings and in those proceedings the Respondents
are entitled to put forward any defence they may have to the claim.
The Respondents have appealed
against the decision of the Munich Court
of Appeal to the Federal Supreme Court but that appeal has not yet been
In the Court of Appeal the
Respondents put forward a new point based
on section 8(1) of the Foreign Judgments (Reciprocal Enforcement) Act 1933,
and it was on this ground that the Court (Lord Denning M.R., Megaw and
Scarman L.JJ.) allowed the appeal.
The long title of that Act reads as follows:
" An Act to make provision
for the enforcement in the United
" Kingdom of judgments given in foreign countries which accord reci-
" procal treatment to judgments given in the United Kingdom, for
" facilitating the enforcement in foreign countries of judgments given in
" the United Kingdom, and for other purposes in connection with the
" matters aforesaid."
Part I of the Act is headed "
Registration of Foreign Judgments " and is
directed to securing the enforcement of foreign judgments in this country.
Part II is headed " Miscellaneous and General ". Section 8 is the first section
in this Part and reads as follows:
" 8.—(1) Subject to
the provisions of this section, a judgment to which
" Part I of this Act applies or would have applied if a sum of money.
" had been payable thereunder, whether it can be registered or not, and
" whether, if it can be registered, it is registered or not, shall be recog-
" nised in any court in the United Kingdom as conclusive between the
" parties thereto in all proceedings founded on the same cause of action
" and may be relied on by way of defence or counterclaim in any such
" (2) This section shall
not apply in the case of any judgment: —
" (a) where the judgment has been registered and the registration
" thereof has been set aside on some ground other than: —
" (i) that a sum of money was not payable under the judgment; or
" (ii) that the judgment had been wholly or partly satisfied ; or
" (iii) that at the date of the application the judgment could not be
" enforced by execution in the country of the original court; or
" (b) where the judgment has not been registered, it is shown (whether
" it could have been registered or not) that if it had been registered
" the registration thereof would have been set aside on an applic-
"ation for that purpose on some ground other than one of the
" grounds specified in paragraph (a) of this subsection.
" (3) Nothing in this
section shall be taken to prevent any court in the
" United Kingdom recognising any judgment as conclusive of any matter
" of law or fact decided therein if that judgment would have been so
" recognised before the passing of this Act."
The judgments to which Part I of
the Act applies are defined in section
1(2) and (3) of the Act which read as follows:
" (2) Any judgment of a
superior court of a foreign country to which
" this Part of this Act extends, other than a judgment of such a court
" given on appeal from a court which is not a superior court, shall be a
" judgment to which this Part of this Act applies, if—
" (a) it is final
and conclusive as between the parties thereto ; and
" (b) there is payable thereunder a sum of money, not being a sum
" payable in respect of taxes or other charges of a like nature or
" in respect of a fine or other penalty ; and
" (c) it is given
after the coming into operation of the Order in Council
" directing that this Part of this Act shall extend to that foreign
"(3) For the purposes of
this section, a judgment shall be deemed to
" be final and conclusive notwithstanding that an appeal may be pending
" against it, or that it may still be subject to appeal, in the courts of the
" country of the original court."
Such a judgment may be
registered if it has not been wholly satisfied and
if it is not one which could not have been enforced by execution in the
country of the original court. If a judgment of a foreign court is registered,
then for the purposes of execution, if it is not competent to a party to apply
for the registration to be set aside or such an application has been finally
determined, the registered judgment is to be of the same force and effect as
a judgment originally given by the registering court. Proceedings may be
taken on it as if it were a judgment of that court and the judgment is to carry
interest as if it were a judgment of that court (section 2(2)).
Part I of the
Act only applies to judgments under which a sum of money
is payable. Section 8(1) applies to all judgments to which Part I applies and
also to judgments to which that Part does not apply but would have applied
if money had been payable under them, that is to say judgments which are
final and conclusive and given after the Order in Council applying Part I to
the foreign country concerned has been made (section l (2)(a) and (c)).
I cannot therefore see that
there is any ground for concluding, as was
contended by the Appellants, that section 8(1) only applies to judgments
which can be enforced. Section 8(1) does not deal at all with enforcement.
That is dealt with in Part I.
As it was not disputed that in
this case section l(2)(a) and (c) were satisfied,
in my opinion the judgment of the District Court of Munich was one to which
section 8(1) applies.
That subsection goes on to
provide that such a judgment shall be recognised
in any court in the United Kingdom as " conclusive between the parties
" thereto ", and to state when it is to be so recognised, namely " in all
" proceedings founded on the same cause of action ". It concludes by saying
that it may be relied on by way of defence or counterclaim in any such
The subsection does not
expressly state of what the judgment is to be
conclusive and the controversy in this appeal is as to that.
In Thoday v. Thoday
 P. 181 Diplock L.J., as he then was. said at
p. 197 that there were two species of estoppel per rent judicatam. The
first, which he called " cause of action estoppel" was that which prevents
a party to an action from asserting or denying, as against the other party,
the existence of a particular cause of action, the non-existence or existence
of which has been determined by a court of competent jurisdiction in
previous litigation between the same parties. The second, which my noble
and learned friend called " issue estoppel " arises where in previous litigation
one of the matters in issue between the parties has already been decided
by a competent court.
Lord Denning M.R. in the Court
of Appeal held that section 8(1) dealt
with " cause of action estoppel " and section 8(3) with " issue estoppel";
and that as the proceedings in England would be founded on the same cause
of action as those in Germany, the judgment in Germany was to be treated
as conclusive. That judgment did not decide that money was not owed by
the Respondents to the Appellants but that it was not recoverable owing
to the German period of limitation. Nevertheless, in Lord Denning's
view, section 8(1) operated to prevent the Appellants from suing in this
country on the same cause of action even though the period of limitation
under English law had not expired.
Megaw L.J. and Scarman L.J. held
that section 8(1) displaced the
common law as to the enforcement and recognition of foreign judgments,
and agreed that the judgment of the German court prevented proceedings
being instituted in this country.
The contrary view advanced by
the Appellants was that the judgment
of the foreign court was only by section 8(1) made conclusive as to the
matters decided therein and so was conclusive only on the question whether
the limit imposed by German law on the time within which actions must
be instituted applied and barred the action.
Although since 1964 the use of
the expressions " cause of action estoppel "
and " issue estoppel " has become common, I do not think that that division
into two species of estoppel per rem judicatam was recognised in 1933
or that those expressions were then used. If that be right, it would indeed
be singular if Parliament had then intended section 8(1) only to apply
to " cause of action estoppel" and section 8(3) only to " issue estoppel".
In this connection I think the
way in which section 8(3) is drafted is
illuminating. If that section was intended to cover issue estoppel, I would
not have expected it to commence with the words " Nothing in this section
"shall be taken to prevent . . .". That is a formula frequently used in
statutes when a provision is inserted ex abundanti cautela. Its use in
section 8(3) leads me to the conclusion that section 8(3) was not intended to
cover issue estoppel as a distinct species of res judicata but was inserted
to ensure that the Act did not
by section 8(1) reduce the recognition given
by the courts of this country under the common law to foreign judgments.
It follows that section 8(1) was not intended, if this be so, to cover only
one species of estoppel per rem judicatam.
Our attention was drawn to the
fact that the Foreign Judgments (Reciprocal
Enforcement) Act 1933 was passed by Parliament on the 13th April, 1933
shortly after the Report of a Committee called the Foreign Judgments
(Reciprocal Enforcement) Committee had been presented to Parliament.
That was done in December 1932. The Committee had been appointed
by the then Lord Chancellor and its chairman was Greer L.J. It had
among its members many very eminent lawyers. To its Report were annexed
a draft of Conventions to be entered into with foreign countries and a
draft Bill, clause 8 of which was in precisely the same terms as section 8
of the Act.
The question was debated to what
extent could recourse be had to the
Committee's Report as an aid to the construction of section 8.
Ever since Heydon's Case
(1584) 3 Co Rep 7a it has been recognised
that there are, in connection with the interpretation of statutes, four questions
to be considered: (1) what was the common law before the making of the
Act; (2) what was the mischief or defect for which the law did not provide ;
(3) what remedy Parliament had provided and (4) the reason for the remedy
(see Eastman Photographic Materials Co. v. Comptroller of Patents 
In that case Lord Halsbury cited
a passage from the report of com-
missioners appointed to inquire into the duties, organisation and arrange-
ments of the Patent Office in relation to trade marks and designs. That
passage not only referred to what the existing law was but also to what
the commissioners thought it ought to be ; and after citing it. Lord Halsbury
" My Lords, I think no more
accurate source of information as to
" what was the evil or defect which the Act of Parliament now under
" construction was intended to remedy could be imagined than the
" report of that commission."
Many instances were cited in the
course of the argument where the Courts
have had regard to the reports of such commissions or committees ; e.g. in
Rookes v. Barnard  AC 1129 and Heaton's Transport (St. Helens)
Ltd. v. Transport and General Workers Union  A.C. 15 to the Report
of the Royal Commission on Trade Unions and Employees' Associations,
in National Provincial Bank Ltd., v. Ainsworth  AC 1175 to the
Report of the Royal Commission on Marriage and Divorce and in Letang v.
Cooper  1 QB 232 to the Report of the Tucker Committee on the
Limitation of Actions. Other instances could be cited and, despite the
observations of Lord Wright with which Lord Thankerton agreed in Assam
Railways v. Commission of Inland Revenue  AC 445, it is now, I
think, clearly established that regard can be had to such reports.
In that case counsel had sought
to refer to recommendations of the Royal
Commission on Income Tax of 1920 and to argue that the Finance Act 1920
followed those recommendations. The House did not allow him to do so,
Lord Wright saying at p. 458:
". . . on principle no such
evidence for the purpose of showing the
" intention, that is the purpose or object, of an Act is admissible ; the
" intention of the Legislature must be ascertained from the words of the
" statute with such extraneous assistance as is legitimate: as to this,
" I agree with Farwell L.J. in Rex v. West Riding of Yorkshire County
" Council  2 K.B. 676 where he says:—'I think the true rule
" ' is expressed with accuracy by Lord Langdale in giving the judgment
" ' of the Privy Council in the Gorham case in Moore 1852 edition p. 462
" ' we must endeavour to attain for ourselves the true meaning of the
" ' language employed '—in the Articles and Liturgy—' assisted only
" ' " by the
consideration of such external or historical facts as we may
" ' " find necessary to enable us to understand the subject matter to
" ' " which the instruments relate, and the meaning of the words
" ' " employed "'.... It is clear that the language of a Minister of
" the Crown in proposing in Parliament a measure which eventually
" becomes law is inadmissible and the Report of Commissioners is even
" more removed from value as evidence of intention because it does
" not follow that their recommendations were accepted."
Despite these observations, in
Shenton v. Tyler  1 Ch. 620 (C.A.)
Sir Wilfred Green M.R. cited a recommendation of the Common Law
Commissioners of 1852 saying that it was accepted by the Legislature and
embodied in the Evidence Amendment Act 1853.
The task confronting a Court
when construing a statute is to determine
what was Parliament's intention. In a perfect world the language employed
in the Act would not be capable of more than one interpretation but due in
part to the lack of precision of the English language, often more than one
interpretation is possible. Then, to enable Parliament's intention to be
determined, as I understand the position, one may have regard to what
was the law at the time of the enactment and to what was the mischief at
which it was directed.
That one can look at such
reports to discern the mischief is now, I think,
established but there is a difference of opinion as to what may be looked at
in such reports. Can one have regard to the recommendations of the
Committee or. Commission? Where a draft Bill is attached to the report,
as is now frequently the case, and was the case in this instance, can one
refer to the terms of the draft Bill when they have been enacted without
material alteration by Parliament? Can one refer to the notes on the
clauses of the draft Bill appended to it by the Committee, and in the present
case to the terms of the draft Conventions prepared by the Committee and
attached to their Report? Is it legitimate to make use of such parts of a
report as an aid to the construction of the Act?
In my opinion it is. The reason
why one is entitled to consider what
was the mischief at which the Act was aimed is surely that that will throw
a revealing light on the object and purpose of the Act, that is to say the
intention of Parliament; and, applying Lord Halsbury's observations cited
above, what more accurate source of information both as to the law at the
time and as to the evil or defect which the Act was intended to remedy can
be imagined than the report of such a Committee matter, the reports of the
The contrary view seems to
impose on judges the task of being selective
in their reading of such reports. What part may they look at and what
not? Have they to stop reading when they come to a recommendation?
Have they to ignore the fact, if it be the fact, that the draft Bill was enacted
without alteration? To ignore what the Committee intended the draft Bill
to do and what the Committee thought it would do? I think not.
I think so to hold would be to
draw a very artificial line which serves no
useful purpose. What weight is to be given to a Committee's recommenda-
tions is another matter. That may depend on the particular circumstances.
If the report of the Committee merely contains recommendations, while I
think that regard can be had to them, little weight may be attached to them
as it may not follow that Parliament has accepted them. Parliament may
have decided to go further or not as far. But where, as here, a draft Bill
is attached to the report, then one can compare its provisions with those
of the Act and if there is no difference or no material difference in their
language, then surely it is legitimate to conclude, as Greene M.R. did in
Shenton v. Tyler (supra), that Parliament had accepted the recommendation
of the Committee and had intended to implement it. In such a case that
recommendation becomes as it did in Eastman Photographic Material Ltd. v
Comptroller General of Patents (supra) the most accurate source of
information as to the intention of Parliament.
Of course, it may be that the
language used in the draft Bill and in the
Act is defective and does not carry out the Committee's and Parliament's
intention. Regard must be had to that possibility, however remote it may be.
In Letang v. Cooper
 1 QB 232 Lord Denning M.R. at p. 240
" It is legitimate to look
at the report of such a committee" (the
Tucker Committee on the Limitation of Actions) "so as to see what
" was the mischief at which the Act was directed. You can get the
" facts and surrounding circumstances from the report so as to see the
" background against which the legislation was enacted. This is always
" a great help in interpreting it. But you cannot look at what the
" committee recommended, or at least, if you do look at it, you should
" not be unduly influenced by it. It does not help you much, for
" the simple reason that Parliament may, and often does, decide to
" do something different to cure the mischief."
While I respectfully agree that
recommendations of a Committee may
not help much when there is a possibility that Parliament may have decided
to do something different, where there is no such possibility, as where the
draft Bill has been enacted without alteration, in my opinion it can safely be
assumed that it was Parliament's intention to do what the Committee
recommended and to achieve the object the Committee had in mind. Then,
in my view the recommendations of the Committee and their observations
on their draft Bill may form a valuable aid to construction which the
Courts should not be inhibited from taking into account.
It does not follow that if one
can have regard to the whole of a
Committee's report, one ought also to be able to refer to Hansard to see
what the Minister in charge of a Bill has said it was intended to do. In
the course of the passage of a Bill through both Houses there may be many
statements by Ministers, and what is said by a Minister in introducing a
Bill in one House is no sure guide as to the intention of the enactment,
for changes of intention may occur during its passage. But when a Bill
is drafted by such a Committee as that in this case and enacted without
alteration, then. I repeat, in my opinion it is legitimate to have regard to
the whole of the Committee's Report, including the terms of the draft Bill
attached to it, to the Committee's notes on its clauses and to the draft
Conventions annexed to the Report, for they constitute a most valuable
guide to the intention of Parliament.
The Report of the Committee
begins with a summary of the Committee's
recommendations and the reason therefor. They were primarily concerned
with securing that English judgments should be recognised and enforced in
foreign countries without the case having to be fought again on the merits
in a foreign court. To that end Conventions had to be entered into with
foreign countries and the Committee had ascertained that some foreign
countries would be willing to allow judgments to be enforced " on similar
" conditions to those on which we enforce theirs, provided that those
" conditions are defined in a Convention ". They pointed out that there
were two difficulties in the way of concluding such Conventions: (1) that
under the then existing procedure foreign judgments were not enforced as
such, and (2) " The principles on which English courts accept foreign
" judgments as conclusive depend on case law and are not to be found
" formulated in the Statute Book ". Their aim was, they said, to remove
these difficulties ; and, they said, so far as the position in England was
concerned, the change they proposed involved " no radical alterations of
" the present position ".
Paragraph 4 of their Report
appears under the heading " The Present
" Position, (i) Recognition and enforcement of foreign judgments in
" England ", and reads as follows:
" Under English common law
a foreign judgment (other than a
" judgment given in a criminal or fiscal matter), though it does not
" operate in England to merge the original cause of action, is, provided
" that certain reasonably
well-defined conditions are satisfied, recognised
" as conclusive between the persons who were parties to the proceedings
" in the foreign court as regards the question therein adjudicated* upon,
" and can be relied upon by any of the said parties or their privies,
" if further proceedings are brought in England by any other such party
"or his privy in respect of the same cause of action."
To this paragraph there was the following footnote:
" * The words ' question
adjudicated upon' refer to the actual decision
" (the operative parts of the judgment) as opposed to the grounds or
" reasoning upon which it may be based, in the course of which other
" points of law or fact may have been incidentally decided as prelim-
" inaries (necessary or otherwise) to the final conclusion. The authoritise
" on the effect of foreign judgments in English law are not very
" numerous. They appear, however, clearly to justify the statement
" of the position given above though it may be that this statement is
" slightly too narrow. This statement is in any case only intended to
" apply to judgments in ordinary proceedings in personam."
The wording of this paragraph
closely resembles that of section 8(1)
of the Act and the passages in the Report to which I have referred establish,
in my opinion, that by Part I of the Bill the Committee sought to secure
that certain foreign judgments were capable of being enforced as such in
English courts and by section 8 to state in a statute the principles on which
English courts recognise foreign judgments as conclusive. There is nothing
to be found in these passages or elsewhere in the Report to support the
contention that it was the Committee's intention to alter or depart in any
way from the principles on which English courts had under the common law
regarded foreign judgments as conclusive.
Paragraph 10 of the Report
states the reasons in the Committee's view
for " the present failure " of foreign courts to recognise and enforce British
judgments and the steps necessary to remedy that position. In paragraph
10(b) they say:
" The whole of the English
procedure, including the conditions
" required for the recognition of a foreign judgment as conclusive,
" depends upon rules of Common Law only. There is always a natural
" tendency for the foreign court to suppose that such Common Law
" rules are too indefinite to be applied as rigidly as the provisions of
" a statute or a code, and that they are largely discretionary. . . .".
The Report continues:
" Therefore, in the case of
these countries, in practice ... the
" conclusion of an international convention — containing reciprocal
" obligations for the recognition and enforcement of judgments which
" will be made binding as part of the municipal law of the foreign
" country, together with the statement of our own rules in statutory form
" —appears to be the only manner by which everything like reciprocal
" treatment can be secured in the mutter of recognition and enforcement
" of British judgments."
and in paragraph 16 the Report states:
" It was, however,
desirable that such legislation, in laying down
" the conditions under which, in return for reciprocal treatment, the
" judgments of foreign countries should be enforced, should not depart
" from the substantive principles of the common law applicable to
" foreign judgments in general."
In paragraph 23 the Committee
emphasised the manner in which the draft
Bill and rules on the one hand and the draft conventions on the other had
been prepared " concurrently with and in the light of each other, so as to
" render the arrangements proposed in connexion with foreign judgments
" in the United Kingdom consistent with the conventions, and vice versa."
One Annex to the Report contains
a draft Convention with Germany.
Article 3 thereof deals with the recognition of judgments and Article 3(2)
provides that a judgment which is recognised " shall be treated as conclusive
" as to the matter thereby adjudicated upon in any further action between
" the parties . . . and as to such matter shall constitute a defence in a further
" action between them in respect of the same cause of action." No such
Convention was entered into with Germany until 1961 and Article III(4) of
that Convention corresponds with Article 3(2) of the draft.
In their notes on the clauses of the draft Bill, the Committee say:
" Clause 8 " (now
section 8 of the Act) " contains the provisions of the
" Bill with regard to the recognition of foreign judgments as final and
" conclusive between the parties as regards the question therein adjudi-
" cated upon. It is entirely in accordance with the position at Common
" Law " (as explained in paragraph 4 of the Report) " and clause 8(3) "
(section 8(3) of the Act) " saves the existing Common Law rules in any
" cases where the rule laid down by the Act may be narrower in
" operation than the Common Law."
The Report thus shows, in my
opinion beyond any question of doubt,
that it was not the Committee's intention by clause 8 to make any change in
the existing common law rules as to recognition of foreign judgments; that
clause 8(3) was inserted ex abundanti cautela and that clause 8(1) was only
intended to operate to make a judgment conclusive between the parties as
to the matter thereby adjudicated upon.
Unfortunately the Report was not
brought to the attention of the Court of
Parliament by enacting clause 8
without alteration must, in my opinion,
have intended to implement the intentions of the Committee and I can see
no ground for holding that they did not effectively do so.
What then was the question
adjudicated upon by the District Court of
Munich on the 30th November, 1972? It was not that no money was owed
by the Respondents to the Appellants. The expert evidence in this case
made it clear that the Appellants' right to payment was not extinguished by
that decision. It was not a judgment " on the merits ", an expression used
not infrequently by lawyers, and used by the Committee in paragraph 1 of
their Report and one to which I must confess I have no difficulty in attach-
ing a meaning. It was a decision that the German period of limitation
applied and that the Appellants' claim was consequently time barred.
In these circumstances what was
the position at common law. That was
in my opinion clearly settled by the decision in Harris v. Quine (1869) L.R.4
There it was held that a Manx
statute which provided a three year period
of limitation barred the remedy but did not extinguish the debt and that
proceedings to recover the debt, though time barred in the Isle of Man, could
be brought in this country. In the course of his judgment Blackburn J. said:
"... it was said that the
plea . . . would shew that the Manx court
" had determined the matter and that the matter ought not to be litigated
" again in the courts of this country ; and, no doubt, wherever it can be
" shewn that a court of competent jurisdiction has decided the matter,
" the plaintiff is estoppel from disputing the decision, or litigating the
" matter in another court, while the decision of the first court remains
" unreversed. But, in the present case, all that the Manx court decided
" was, that in the courts of the Isle of Man the plaintiffs could not
So here all
that the German court decided was that in the German courts
the Appellants could not recover.
It was contended that this case
was wrongly decided. I found that argu-
ment entirely unconvincing. It is a decision which has stood unchallenged
since 1869. It was submitted that the Committee must when preparing
their Report have overlooked it. I cannot accept that. It is a decision cited
in Dicey's Conflict of Laws without any adverse comment and in the 1st
Edition of that work as authority for the proposition that
"... it is not an answer to
an action in England if it be ... a judg-
" ment which, though it decides the cause finally in the country where it
" is brought, does not purport to decide it on the merits, e.g., if it is
" given in favour of the defendant on the ground that the action is
" barred by a statute of limitations."
If the Act of 1933 had not been
passed, then under the common law, in the
light of this decision, proceedings by the Appellants in England would not
have been barred by the decision of the Munich court. As in my opinion
section 8 of the Act was intended to and does preserve the common law
position without alteration, the Respondents' claim that that decision prevents
proceedings in England must be rejected.
In the Court of Appeal some
importance was attached to the concluding
words of section 8(1), that the judgment is to be recognised as conclusive
between the parties in all proceedings founded on the same cause of action
and " may be relied on by way of defence or counterclaim in any such
" proceedings ". Res judicata may be relied on by way of defence but the
need to provide that it may be relied on by way of counterclaim founded on
the same cause of action is somewhat obscure. Whatever its content be, the
inclusion of the reference to a counterclaim does not, in my view, answer
the question or throw a light on the answer to the question of what is a
judgment to be recognised as conclusive? In my opinion, though the words
"of the matter adjudicated upon" are not in section 8(1), though they
were in the draft Convention and in paragraph 4 of the Report, nevertheless
the language of that subsection provides that a judgment to which the sub-
section applies is to be conclusive of what it decides and not of what it does
not decide. And the judgment of the Munich court did not decide that
money was not owing by the Respondents to the Appellants. It was not a
decision on the merits of the Appellants' claim.
I would therefore allow the
appeal. But the position has changed since
the Court of Appeal's decision. The judgment of the Munich Court has
been reversed and that judgment reversing it is now under appeal.
In these circumstances while
leave should be given to issue the writ and to
serve notice thereof on the Respondents, thereafter there should be a stay
pending the decision of the Federal Supreme Court and with liberty to apply
after the decision of the Court has been given. I can see that formidable
arguments may be advanced, if the Federal Supreme Court upholds the
reversal of the decision of the Munich court, for saying that the Appellants,
having chosen the German courts as the forum and as the case can then be
heard on its merits, should not in the exercise of discretion be allowed at the
same time to proceed in the courts of this country. But it is not necessary
or desirable to express any opinion on that now.
For the reasons I have stated, in my opinion this appeal should be allowed.
This appeal is essentially
concerned with the interpretation of section 8(1)
of the Foreign Judgments (Reciprocal Enforcement) Act, 1933. From the
facts which have been fully stated I select those necessary for our decision.
1. The present action is brought
upon two Bills of Exchange drawn by the
Appellants and accepted by a predecessor in business of the Respondents-
it is not disputed that the Respondents have succeeded to any liability on
these Bills. The proper law of these Bills is English law. The German
proceedings were brought by the
Appellants against the Respondents on
these same Bills after dishonour.
Action on the Bills in England
is not, we must assume, barried by the
English Limitation Act, 1939.
In Germany, a three year period
of limitation applies to Bills of
Exchange. If the German period is applied to the Bills, action upon them
is barred by German law. The question litigated in Germany, upon which
the German Courts have differed, is whether in proceedings before a German
court the German period does apply. The basis of the affirmative decision
of the District Court of Munchen is (briefly) that limitation is, under German
law, classified as a matter of substance, not of procedure; that as the proper
law of the Bills is English law, this involves the application by a German
Court of English law ; that under English law limitation is regarded as a
matter of procedure; that, applying the doctrine of renvoi (accepted by the
German Court), reference back has to be made to the lex fori, i.e., German
law, so that the proceedings were barred.
According to expert evidence,
German law, though classifying limit-
ation as a matter of substance, did not, in relation to the subject matter of
dispute, extinguish the right, but did affect the remedy.
As this point is crucial, I
quote certain passages from the evidence filed
on behalf of the Respondents:
" In German law what is
described in England as the limitation of
" actions does not extinguish the right. Nonetheless such limitation is
" a matter of substance, not of procedure." Dr. F. A. Mann.
" The completion of the
limitation affects the substantive quality of
" the right. Notwithstanding the limitation it is true the right remains
" in existence. Its effect, however, is weakened by the fact that the
" obligor is entitled permanently to refuse performance."
Professor Feimehl, commenting on
the German Civil Code, section 222,
cited by Dr. F. A. Mann:
"... the position is that,
while the debts under the bills are not
" extinguished, the defendants are under no duty to pay them because
" they have a permanent answer to them." Dr. F. A. Mann.
5. The judgment of the District
Court of Munchen, dated 30th November,
1972, is in evidence. U consists of a single document containing (i) a dis-
positive part, (ii) a statement of facts, (iii) grounds for the decision. The
dispositive part stales " The suit is dismissed ". The grounds for decision
set out fully the grounds in law for holding that the claim is barred by the
German law as to limitation. I mention this point because the Respondents
contend that the " judgment " to be recognised under the Act of 1933 is the
dispositive provision dismissing the suit and nothing more.
After this preface I come to the
Act of 1933. It is in two parts. Part I
contains provisions for the enforcement of foreign judgments by registration.
Part II contains miscellaneous and general provisions starting with section 8,
which deals with recognition. The question for decision is whether, and if so
to what extent, section 8(1) applies to the present situation. There are two
issues. The first is whether the subsection applies at all to foreign judgments
dismissing a suit, i.e.. in favour of a defendant: the Appellants' contention
is that it only applies to judgments which could, if certain other elements
existed (e.g., an order to pay money), be enforceable under Part I. The
second issue is for what purpose and to what extent a foreign judgment is
" conclusive ". The Appellants' contention is that it is to be conclusive as
to any matter adjudicated upon, but no further. Since in this case all that
was adjudicated upon was that the Plaintiffs have no remedy in Germany
upon the Bills, by reason of the expiry of the German limitation period,
recognition of this fact does not prevent the Appellants from suing in
England. I shall deal first with the second point.
My Lords, we are entitled, in my
opinion, to approach the interpretation
of this subsection, and of the 1933 Act as a whole, from the background of
the law as it stood, or was
thought to stand, in 1933 and of the legislative
intention. As to these matters the Report to which my noble and learned
friend, Lord Reid, has referred is of assistance. He has set out in his
opinion the basis upon which the Courts may consult such documents.
I agree with his reasoning and I only desire to add an observation of my
own on one point. In my opinion it is not proper or desirable to make
use of such a document as a Committee or Commission report, or for that
matter of anything reported as said in Parliament, or any official notes on
clauses, for a direct statement of what a proposed enactment is to mean
or of what the Committee or Commission thought it means—on this point
I am in agreement with my noble and learned friend Lord Diplock. To be
concrete, in a case where a Committee prepared a draft Bill and accompanies
that by a clause by clause commentary, it ought not to be permissible,
even if the proposed Bill is enacted without variation, to take the meaning of
the Bill from the commentary. There are, to my mind, two kinds of reason
for this. The first is the practical one, that if this process were allowed
the Courts would merely have to interpret, as in argument we were invited
to interpret, two documents instead of one—the Bill and the commentary
on it, in particular Annex V para. 13. The second is one of constitutional
principle. Legislation in England is passed by Parliament, and put in the
form of written words. This legislation is given legal effect upon subjects
by virtue of judicial decision, and it is the function of the Courts to say
what the application of the words used to particular cases or individuals
is to be. This power which has been devolved upon the judges from
the earliest times is an essential part of the constitutional process by which
subjects are brought under the rule of law—as distinct from the rule of
the King or the rule of Parliament; and it would be a degradation of
that process if the Courts were to be merely a reflecting mirror of what
some other interpretation agency might say. The saying that it is the
function of the Courts to ascertain the will or intention of Parliament is
often enough repeated, so often indeed as to have become an incantation.
If too often or unreflectingly stated, it leads to neglect of the important
element of judicial construction ; an element not confined to a mechanical
analysis of today's words, but, if this task is to be properly done, related
to such matters as intelligibility to the citizen, constitutional property, con-
siderations of history, comity of nations, reasonable and non-retroactive
effect and, no doubt, in some contexts, to social needs.
It is sound enough to ascertain,
if that can be done, the objectives of
any particular measure, and the background of the enactment; but to take
the opinion, whether of a Minister or an official or a Committee, as to
the intended meaning in particular applications of a clause or a phrase,
would be a stunting of the law and not a healthy development.
In this light I can state in
summary form the considerations to which
the Report brings me in interpreting the Act. First, the objective of the
Act is clear: it was to secure the enforcement by other countries of English
judgments, mainly money judgments, upon principles similar to those on
which foreign judgments were recognised in England. Secondly, the Act
was to be based upon and to follow with minimal departures the common
law. Third, the Act was to state in statutory form the general principles
upon which foreign judgments (to which the Act applied) would be recog-
nised in English courts. Fourth, the Act, a draft of which was annexed
to the Report, and which the eventual statute adopted with negligible
variation, was prepared in the contemplation that bilateral Conventions
would be entered into with foreign States, with a view to securing reciprocity
of treatment. It is made clear that negotiations had taken place with the
Belgian, French and German governments: draft Conventions had been
prepared and are annexed to the Report: the Act was intended to operate
upon and in aid of these Conventions.
[The Convention with Germany was
not, in fact, signed until 1960
and was given effect to by Statutory Instrument 1961, No. 1199; but it
followed closely the draft scheduled to the Report.]
Fifth, it is relevant to notice
that the Committee included a number
of persons of acknowledged competence, and indeed distinction, in the
field of Private International Law, who must be taken to be familiar with
established rules and decided cases.
One of the rules, which they
must be taken to be aware of, relates to
the distinction made in English Private International Law between matters
of substance and matters of procedure, and, within that, the classification of
limitation as a matter of procedure. Classification of limitation as pro-
cedural means that in proceedings in an English Court, English law, as the
lex fori, will apply its domestic law as to limitation and will not apply
foreign limitation provisions even if the foreign law is the proper law,
unless, at least, they extinguish the right. This principle has been part of
English law since, at any rate, Huber v. Steiner. I quote the well-known
statement of principle by Tindal CJ.:
" The distinction between
that part of the law of the foreign country
" where a personal contract is made, which is adopted, and that which
" is not adopted by our English courts of law, is well known and
" established ; namely, that so much of the law as affects the rights
" and merit of the contract, all that relates ad litis decisionem, is adopted
" from the foreign country ; so much of the law as affects the remedy
" only, all that relates ad litis ordinationem, is taken from the lex fori
" of that country where the action is brought." ((1835) 2 Bing N.C. 202).
Huber v. Steiner was
not itself a case involving a foreign judgment, but the
question arises immediately whether the same principle applies. The answer
to this can only be affirmative. If English law applies its own limitation
provisions to a foreign obligation, even where there is evidence that action
on that obligation would (or would not) be barred by the limitation provisions
of the proper law of that obligation, it would seem inevitably to follow that
English law should not recognise a foreign judgment to the same effect-
more precisely should treat the foreign judgment as a decision as to the
remedy procedurally available, or not available, in the foreign court and
nothing more. Exactly that was in fact decided in 1869 by Harris v. Quine
(L.R. 4 Q.B. 653). Cockburn C.J. treated the matter as concluded by Huber
" The law being as I have
stated, there is no judgment of the Manx
" court barring the present action, as there was no plea going to the
" merits, according to the view which we are bound to take of the Manx
" statute of limitations, and the issue which the Manx court decided in
" favour of the defendant is not the same issue as is raised in the
" present action ".
" But it was said the plea,
if amended according to the facts, would
" show that the Manx court had determined the matter. . . . But ... all
" that the Manx court decided was that, in the courts of the Isle of Man
" the plaintiffs could not recover."
We see here, in the judgment of
Cockburn C.J., a reference to a plea
going " to the merits ". This expression, whether related to pleas or to
judgments, is a familiar one in English law: any practitioner would use it
even if it is not always understood. It is used in many well known
authorities—see Ricardo v. Garcias (1845) 12 Cl. & F. 368, 377, 389, 390;
Godard v. Gray (1870) L.R. 6 Q.B., 150 and in writers of authority—see
Foote (5th Ed.) p. 553 ; Dicey (3rd Ed.) p. 455 ; Story Commentaries, section
576. See also American Law Institute (Restatement- Second) Conflict of
Laws, section 110:
" A judgment that is not on
the merits will be recognised in other
" states only as to issues actually decided."
All of what was said in Harris
v. Quine applies directly to the present case,
and unless the Respondents can escape from the force of this authority, must
conclude the appeal against them. They had, basically, two arguments.
First they contended that Harris v. Quine was wrongly decided, or at least
that it stood alone and ought
not to be followed. I regard this as a hopeless
contention. It may be true that, as regards this subject matter, Harris v.
Quine is the only English reported case where a foreign judgment and
its recognition was involved. But as I have shown it represents a logical
and inevitable consequence of Huber v. Steiner and other cases and is merely
an application of a principle too firmly established to be now put in
question. Harris v. Quine has been cited often enough in English and
Commonwealth cases. See Casanova v. Meier (1885) 1 T.L.R. 213 ; Carvell
v. Wallace (1873) 9 Nova Scotia Reports 165 ; Bondholders Securities Corpor-
ation v. Manville  4 D.L.R. 699 ; Pedersen v. Young (1964) 110 C.L.R.
162, sometimes, I must say, irrelevantly, but it has never been doubted.
The principle is well recognised by Courts of authority in the U.S.A. Warner
et al v. Buffalo Drydock Co. (1933) 67 Fed.R. (2d.) 540; Cert. den. 291
U.S. 678 ; Western Coal and Mining Coy. v. Jones (1946) 164 A.L.R. 685
(S.C. Cal.) and see the Restatement quoted above. As at the year 1933,
then, Harris v. Quine was undoubtedly good law.
Secondly, and more
substantially, the Appellants say that Harris v. Quine
is superseded by section 8(1) of the Act of 1933: this was in effect the view
of the Court of Appeal.
Before looking at the language
of the subsection, it may be useful to
consider what this contention involves. It involves the proposition that a
well established principle of English law, namely, that to obtain recognition,
a foreign judgment must be on the merits and not be based merely on a
" procedural " provision of the lex fori, is swept away in favour of a new
principle that a foreign judgment, on whatever grounds it proceeds, is
conclusive for all purposes, so long at least as the same " cause of action "
is involved, or the same facts. If one accepts that the presumption is against
changes in the common law, and that this presumption is fortified in the
present case by the Report of 1932, if one accepts moreover that the principle
under consideration was perfectly well known and understood in 1932, it
was to be expected that on this point the common law would only be
changed by a clear and express provision. Yet what is relied upon is the
word " conclusive " coupled with a reference to " cause of action ". I
return to these words later: What, one could ask, could be the purpose of
the change? Why should this Act make a judgment conclusive as to some-
thing it never decided? Why, to take the present case, should a foreign
judgment be conclusive on a matter whose proper law is English, and accepted
as English by the foreign Court, when that foreign law itself does not destroy
the right, but only limits the remedy it will grant? For English law to
abolish the distinction between substance and procedure, or to classify
limitation as substance, might be an intelligible objective, but short of this,
and leaving the distinction and classification intact, to change the effect of a
judgment is something that, at the least, requires explanation.
Some suggestion was made that to
extend the recognition of foreign judg-
ments might be desired on grounds of reciprocity: but I cannot understand
this. There was no evidence that foreign Courts grant or would grant the
wider recognition argued for by the Respondents and in any case reciprocity
was to be achieved by the proposed Conventions. There is nothing in this
alleged principle—one of uncertain extent—which assists either way in the
interpretation of the Act.
I find then, so far, no intelligible reason for supposing the common law
to be changed. But the Respondents say the words of the section are clear
clear words must be given effect
to—conclusive means conclusive and that
is that. This, however, I cannot accept. In the first place one has to ask,
" What is conclusive? ", the section says the " judgment "—so what is " the
" judgment"? The Respondents say that the judgment is the dispositive—
" the suit is dismissed ". If this is contained in a self-contained document, as
in the English practice, one may not look beyond it. If in a comprehensive
document, as in the German practice, only that part of it which states the
disposition is the judgment, not the whole of the judgment showing what was
decided or adjudicated upon. But there is no warrant for this limitation.
The Courts in this country, when
faced with a foreign judgment, whether
in favour of the plaintiff or the defendant, in English proceedings, invariably
look at the whole matter: the order made: the reasons: the nature of the
rival claims, resorting if necessary to extrinsic evidence to explain them and
to expose the reality. They do not confine themselves to the fact of the
record, or to the formal order. It must be remembered that at common law
foreign judgments do not give rise to an estoppel by record. If relied on by
a plaintiff in an English court, they are so as obligations, which the defendant
ought to discharge: so the nature of the obligation must be made known
and if necessary explained. If they are relied on by a defendant as a bar in
English proceedings, the nature of the bar must be enquired into, from an
inspection of the matter adjudicated upon. Harris v. Quine itself is an
example of this. One can cite many passages of authority:
" In general, in pleading a
foreign judgment you produce it with the
" proceedings to show it is a judgment between the same parties and on
" the same matters ". (Ricardo v. Garcias u.s. p. 387
per Lord Lyndhurst L.C.):
" Every plea of a foreign
judgment in bar ought to set forth so much
" at least of the judgment as would show that it was final and conclusive
" on the merits ". (ibid, per Bethell arg.)
" No one contends that the
judgment and proceedings should be set
" out in full, but we should have such a description of them as would
" enable us to know what was decided". (ibid p. 394 per Lord
So, in my opinion, to say that
in a case such as the present the English Court
must stop at the first line of the German judgment and ignore the rest is
irrational and out of line with what the Courts do. And then " conclusive ":
conclusive of or as to what? The Respondents say " conclusive that the
" cause of action on which the foreign proceedings were brought no longer
" exists ". But the subsection does not say this: the words " in all proceed-
" ings founded on the same cause of action " merely describes the occasion
on which the conclusiveness arises. There is nothing here-—and, I add in
passing, nothing in Part I of the Act—to indicate that the conclusiveness is
to extend, irrespective of what the judgment decided, to the whole of the
cause of action. Why should we give to the judgment a greater force than
it receives by the law of the country where it is given? Certainly the law of
Germany does not say that the cause of action does not exist.
In my opinion, therefore, an
interpretation of both "judgment" and
" conclusive " which would require Courts in this country to examine the
judgment, see what it decided, and hold it conclusive as a judgment and for
what it adjudicates, is both open on the language and is entirely consistent
with the common law. To quote another leading authority : —
" As to whatever it meant
to decide, we must take it as conclusive ".
Bernardi v. Motteux 1781 2 Doug. 575, 581 per Lord Mansfield.
The Appellant finally relied
strongly on the wording of section 8(3) of the
1933 Act. I agree with my noble and learned friend Lord Simon of Glaisdale
in the reasons he has given why this subsection is of no assistance and shall
not repeat them in words of my own.
In my opinion, if this case had
arisen at any time between 1869 and 1933
there could be no doubt how it would have been decided. I see no reason
why the Act of 1933 should be understood as intending to bring about a
different result. The language of section 8(1) does not so compel. The
German judgment would be conclusive for what it decided and for nothing
more. The Plaintiffs' claim has not been decided on the merits, and they
should be allowed to pursue it. This being my conclusion on the second
point, it is not necessary to decide the first. I prefer to reserve my opinion
upon whether subsection (1) of section 8 applies to defendants' judgments.
There remains finally the
question of residual discretion, and I must say
that the situation now existing is unfortunate. This House is called upon to
decide this matter before it
knows how the German proceedings will finally
terminate. It is not in a position effectively or with knowledge to exercise
such discretion as the Courts ought to exercise. In my opinion, if a majority
of your Lordships disagree with the legal position taken by the Court of
Appeal, the appeal should be allowed. But I suggest that the present
proceedings should be stayed, with liberty to apply after determination of
the final appeal in Germany and that the matter then be brought afresh, if
the Plaintiffs so desire, before the Master to decide whether they should be
allowed to continue their action here. Obviously this House cannot now
foresee all the contingencies. If the Respondents' appeal in Germany is
allowed by the Federal Supreme Court and the matter is restored to where
it was when this case was before the Court of Appeal, then, if your Lordships
take a different view of the law from the Court of Appeal, there would
appear to be—ceteris paribus—a strong case for allowing the Plaintiffs to
continue with their action here. If, on the other hand, the Respondents'
appeal in Germany is dismissed—so that the Plaintiffs in one way or another
can proceed in Germany—then the conditions on which the Plaintiffs should
(if at all) be allowed to sue the Defendants also in this country would require
examination. I do not think that this House can at the present stage offer
any useful guidance as to the manner in which that could be decided.
If the effect of the
interpretation given by the majority of this House to
section 8(1) of the Foreign Judgments (Reciprocal Enforcement) Act, 1933,
were confined to the United Kingdom, I should content myself with record-
ing my respectful dissent and my agreement with the interpretation unani-
mously placed upon it by the Court of Appeal. But the Act is designed to
facilitate the reciprocal enforcement of the judgments of foreign courts in
the United Kingdom and of the judgments of United Kingdom Courts in
foreign states. It makes provision enabling and requiring English, Scots and
Northern Irish courts to comply with obligations which the United Kingdom
Government has assumed in international law towards the governments
of those foreign states with which it has entered into conventions " for the
" recognition and enforcement of judgments in civil and commercial mat-
" ters ". So the consequences of your Lordships' decision on this matter
will not be confined to the municipal law of the United Kingdom. It may
have repercussions in international law and in the municipal law of those
foreign states with which conventions have been made. This emboldens me
to state briefly why I am unable to accept either of the constructions of
section 8(1) which commend themselves to those of your Lordships who
consider that the interpretation placed on it by the Court of Appeal was
In a sentence the question that divides us is:
" Did section 8 of the Act
of 1933 alter the common law as it had
" been stated by the Court of Queen's Bench in 1869 in Harris v. Quine
" (L.R. 4 Q.B. 653) "?
All three members of the Court
of Appeal thought that it did. They
reached this conclusion by looking at the actual words of the section. They
considered that the meaning of those words was plain and unambiguous.
For my part I find their reasoning convincing. I would not seek to improve
upon the way in which it is put in the judgment of Scarman L.J. I am
content to adopt it as my own.
I would, however, supplement it with three brief comments.
First, I can see no warrant for
confining the application of the section
to judgments in favour of a plaintiff or counterclaimant. Since it applies
only to " proceedings founded on the same cause of action " as that disposed
of by the foreign judgment, such proceedings ex hypothesi must be brought
by a party who was the plaintiff
in the foreign action against a party who
was the defendant in that action. The reference to reliance on the foreign
judgment " by way of defence " in my view clearly indicates that the section
does apply to foreign judgment in favour of defendants.
Secondly, if there had not been
the reported, albeit isolated, case of
Harris v. Quine which had been mentioned without adverse comment in
the standard text books on English private international law, I venture to
think that it never would have occured to any English lawyer that the
actual words of section 8(1) were to be understood as drawing any
distinction between, on the one hand, foreign judgments given in favour of
a defendant on the ground that the plaintiff's cause of action was time-
barred under the domestic law of the foreign court, and, on the other hand,
all other foreign judgments given in favour of plaintiffs or defendants on any
other ground. If it were possible to discern from its provisions taken as a
whole that the Act was intended to apply only to foreign judgments given
" on the merits "—a phrase which I find elusive as a term of art, but which
I take it would exclude judgments given upon the ground of non-compliance
with a procedural rule of the foreign court or upon some other ground
which would be classified in English private international law as governed
by the lex fori—this might justify construing the word " judgment" in the
same restricted sense in section 8(1). But it is clear from section 4(l)(a)(iii)
that, provided the defendant has had due notice of the proceedings, a
foreign judgment by default obtained against him by the plaintiff is
enforceable under Part I of the Act, notwithstanding that it has been given
upon what is solely a procedural ground governed by the lex jori and is
not a judgment which can be described as being " on the merits ". So the
distinction sought to be drawn is peculiar to judgments in favour of a
defendant on the ground that the plaintiff's cause of action was time-barred
under the domestic law of the foreign state, and must be derived as a
matter of construction from the words of section 8 itself. For my part,
I am unable to discern any suggestion of that distinction in those words.
Thirdly, the word "
conclusive " is, in my view, used in the section in the
same meaning as in the phrase " final and conclusive as between the parties
" thereto " which is used in section 1(2)(a) as descriptive of foreign judgments
to which Part I of the Act applies. This is incorporated by reference into
section 8(1) itself. So I would answer the question "Conclusive of what? "
by saying that it is conclusive of that of which the foreign judgment is
conclusive in the country of the foreign court. Whatever else the foreign
judgment does, its dispositive or operative part must embody a decision of
the foreign court upon the ultimate question whether the plaintiff is entitled
to the remedy he claimed that the court ought to grant him against the
defendant as redress for the facts that he relied upon as constituting his
cause of action. So, in a subsequent action brought in an English court by
the same plaintiff against the same defendant founded upon the same facts
and claiming the same remedy the foreign judgment is at very least
conclusive of the question whether or not the plaintiff is entitled to that
In the course of reaching its
ultimate decision disposing of the plaintiff's
claim to the remedy he seeks, the foreign court may have incidentally
decided other matters of fact or law essential to the plaintiffs claim to be
entitled to the remedy or to the defendant's answer to that claim. Whether
decisions of this kind will be embodied in the same document which contains
the dispositive or operative part of the foreign judgment will depend upon
the practice followed by the foreign court ; and the collusiveness attaching
to such incidental decisions in subsequent litigation in the country of the
foreign court between the same parties but not founded on the same cause
of action, will depend upon the extent to which the foreign system of law
incorporates a principle similar to the English doctrine of issue estoppel.
The English doctrine of issue estoppel, though it did not acquire that name
until later, was well known in 1933. It had been brought into prominence
in the recent case of Hoystead v. Commissioner of Taxation ( A. C.
155). It is based on public
policy and section 8(3) of the Act preserves it
as respects foreign judgments, whether or not the system of law of the
foreign country incorporates a similar principle.
Section 8(1), however, in
contrast to section 8(3), applies only to proceed-
ings founded on the same cause of action as that for which the plaintiff
claimed a remedy in the foreign action. If the judgment in the foreign court
contains, as it must, the ultimate decision of the foreign court disposing of
the plaintiff's claim to the remedy he seeks, the conclusiveness of this decision
cannot, in my view, be rendered inconclusive by any failure of the foreign
court to reach decisions on incidental matters of fact or law which it
considers unnecessary for the purpose of disposing of the plaintiff's claim to
the remedy he sought—even though, if the same remedy had been sought in
an action brought in England, the English court would have considered it
necessary to decide those incidental matters.
The attention of the Court of
Appeal had not been drawn to the Report
of the Foreign Judgments (Reciprocal Enforcement) Committee which had
been presented to Parliament in December, 1932. To that Report there was
annexed a draft Bill of which the wording was almost identical with that of
the Act which received the Royal Assent in April, 1933. Also annexed was
a commentary and explanation of the draft Bill. It is apparent from the
Committee's comments on Clause 8, which is reproduced verbatim by section
8 of the Act, that they did not consider that it made any alteration to the
common law. The membership of the Committee included experts in private
international law who must have been aware of the decision in Harris v.
Quine; I would therefore accept the inference that the Committee did not
realise that the language that they had recommended for Clause 8 would
have the result of altering the common law as to the effect given by English
courts to judgments of foreign courts in favour of defendants which were
based solely on the ground that the plaintiff's remedy was time-barred under
the domestic law of the foreign state. On the other hand it would, in my
view, be quite unrealistic to suppose that the members of either House of
Parliament who voted on the Bill gave any thought, either individually or
collectively, to the decision in Harris v. Quine or to the effect of Clause 8
upon it. The most that can be inferred is that those who took the trouble
to read the small print on page 64 of the fifth Annex to the Report were not
aware that it would alter the existing common law in any way.
I do not, however, understand
that any of your Lordships go so far as to
suggest that a court is entitled to put a strained construction on the words of
section 8 in order to give them the effect the Committee thought that they
had, if this would involve departing from their plain and natural meaning.
It is for the court and no-one else to decide what words in a statute mean.
What the Committee thought they meant is, in itself, irrelevant. Oral evidence
by members of the Committee as to their opinion of what the section meant
would plainly be inadmissible. It does not become admissible by being
reduced to writing.
What is suggested is that
recourse may be had to the Report as an aid to
construction in order to ascertain, first, what the existing law was understood
to be upon the subject-matter of the Act; and, secondly, what was the
mischief for which Parliament intended to provide a remedy by the Act.
As regards the first of these
purposes for which recourse may be had to
the Report, the Act deals with a technical subject-matter—the treatment to
be accorded by courts in the United Kingdom to judgments of foreign courts.
The expressions used in it are terms of legal art which were in current use
in English and Scots law at the time the Act was passed. In order to
understand their meaning the Court must inform itself as to what the existing
law was upon this technical subject-matter. In order to do this it may have
recourse to decide cases, to legal text-books or other writings of recognised
authorities, among whom would rank the members of the Committee. Their
Report contains a summary of the
existing law, as they understood it. As
such it is part of the material to which the court may have recourse for the
purpose of ascertaining what was the existing law upon the subject-matter of
the Act. There is, however, no real doubt as to what it was.
As regards recourse to the
Report for the purpose of ascertaining the
mischief for which Parliament intended to provide a remedy by the Act,
this is based upon the so-called " mischief" rule which finds its origin
in Heydon's Case (3 Co Rep 7a) decided under the Tudor Monarchy in
1584. The rule was propounded by the judges in an age when statutes
were drafted in a form very different from that which they assume today.
Those who composed the Parliaments of those days were chary of creating
exceptions to the common law ; and, when they did so, thought it necessary
to incorporate in the statute the reasons which justified the changes in the
common law that the statute made. Statutes in the sixteenth century
and for long hereafter in addition to the enacting words contained lengthy
preambles reciting the particular mischief or defect in the common law
that the enacting words were designed to remedy. So, when it was laid
down, the " mischief" rule did not require the court to travel beyond
the actual words of the statute itself to identify " the mischief and defect
" for which the common law did not provide ", for this would have been
stated in the preamble. It was a rule of construction of the actual words
appearing in the statute and nothing else. In construing modern statutes
which contain no preambles to serve as aids to the construction of enacting
words the "mischief" rule must be used with caution to justify any
reference to extraneous documents for this purpose. If the enacting words
are plain and unambiguous in themselves there is no need to have recourse
to any " mischief" rule. To speak of mischief and of remedy is to
describe the obverse and the reverse of a single coin. The former is that
part of the existing law that is changed by the plain words of the Act;
the latter is the change that these words made in it.
The acceptance of the rule of
law as a constitutional principle requires
that a citizen, before committing himself to any course of action, should
he able to know in advance what are the legal consequences that will flow
from it. Where those consequences are regulated by a statute the source
of that knowledge is what the statute says. In construing it the court
must give effect to what the words of the statute would be reasonably
understood to mean by those who conduct it regulates. That any or
all of the individual members of the two Houses of the Parliament that
passed it may have thought the words bore a different meaning cannot
affect the matter. Parliament, under our constitution, is sovereign only
in respect of what it expresses by the words used in the legislation it has
This is not to say that where
those words are not clear and unambiguous
in themselves but are fairly susceptible of more than one meaning, the court,
for the purpose of resolving—though not of inventing—an ambiguity, may
not pay regard to authoritative statements that were matters of public
knowledge at the time the Act was passed, as to what were regarded as
deficiencies in that branch of the existing law with which the Act deals.
Where such statements are made in official reports commissioned by govern-
ment, laid before Parliament and published, they clearly fall within this
category and may be used to resolve the ambiguity in favour of a meaning
which will result in correcting those deficiencies in preference to some
alternative meaning that will leave the deficiencies uncorrected. The justifi-
cation of this use of such reports as an aid to the construction of the words
used in the statute is that knowledge of their contents may be taken to
be shared by those whose conduct the statute regulates and would influence
their understanding of the meaning of ambiguous enacting words.
My Lords, I do not think that
the actual words of section 8 of the
Act of 1933 are fairly susceptible of any other meaning than that ascribed
to them by the Court of Appeal. So I see no need to look at the Report
of the Committee; but much of
the argument in this House has been
devoted to a meticulous verbal analysis of everything that the Committee
said in it. For my part this recourse to the Report for the purpose of
ascertaining what was the " mischief" for which Parliament intended to
provide a remedy by the Act has only served to confirm me in the view
that section 8 should be construed as the Court of Appeal construed it.
The mischief was said by the
authors of the Report to be that foreign
courts did not, in effect, recognise judgments of English courts as conclusive.
The reason for this was the difficulty in convincing foreign courts that
reciprocal treatment was accorded to their own judgments in the United
Kingdom. The causes of the difficulty were said to be: (1) the lack of
any provision in the English legal system for the direct enforcement of
foreign judgments for sums of money by execution rather than by action ;
and (2) the dependence of the English recognition of foreign judgments
upon unwritten rules of common law which foreign courts suspected of
being indefinite and discretionary as compared with written law embodied
in a code or statute.
These were the reasons why, in
the Committee's view, the only manner
of securing reciprocal treatment by foreign countries in the matter of the
recognition and enforcement of British judgments was by:
" the conclusion of an
international convention containing reciprocal
" obligations for the recognition and enforcement of judgments which
" will be made binding as part of the municipal law of the foreign
" country together with the statement of our own rules in statutory
" form ".
The conclusion that I would draw
from this is that in the Committee's
view the Act would fail in its purpose of inducing foreign states to enter
into such conventions unless, as well as amending the existing law by
providing a method of obtaining direct execution of foreign judgments for
money sums, it also embodied a comprehensive written statement of at least
the minimum effect which courts in the United Kingdom were required to
give to judgments of courts of foreign states with which reciprocal conven-
tions had been concluded—such written statement to be in substitution for
the written rules of the common law and to obviate the necessity of resorting
to an examination of previous judicial decisions on this topic. That, after
all, is what the lawyers of the three countries with whom informal negotia-
tions had already been conducted France, Germany and Belgium, understand
as being the purpose of a code. Yet the construction which commends itself
to the majority of your Lordships can only be arrived at by going beyond
the actual wording of the Act and resorting to an examination of previous
judicial decisions and specifically the decision in Harris v. Quine. To do this
is to perpetuate one of the very mischiefs which, according to the Committee,
it was the purpose of the proposed Bill to remedy.
Annexed to the Report were draft
Treaties with France, Germany and
Belgium providing for the reciprocal enforcement and recognition of judg-
ments of superior courts of the High Contracting Parties. Article 3 in each
of these Treaties, like section 8 of the draft Bill, dealt with the recognition
of judgments, as distinct from their direct enforcement by execution. The
final paragraph of that Article stated what was meant by the " recognition "
of a judgment which the High Contracting Parties mutually undertook to
grant to judgments of one another's superior courts. It was to the obligation
to be assumed by the United Kingdom Government under this Article that
section 8(1) of the Act was intended to give statutory effect.
The paragraph was in the following terms:
"The recognition of a
judgment under paragraph (1) of this article
" means that such judgment shall be treated as conclusive as to the
" matter thereby adjudicated upon in any further action between the
" parties (judgment creditor and judgment debtor) and as to such
" matter shall constitute a defence in a further action between them in
" respect of the same cause of action."
There are differences of
phraseology between this provision of the Treaties
and section 8(1) of the Act. What is significant for my present purpose is
that the Treaty says that the judgment shall be treated as conclusive " as to
" the matter thereby adjudicated upon " whereas the words I have italicised
are omitted from section 8(1). These additional words may be ambiguous
in themselves, but the Committee (some of whose members are said to have
negotiated the draft Treaties with representatives of the foreign governments
concerned) explained in a footnote to paragraph 4 in the body of the Report
what they meant by this phrase:
" The words ' question
adjudicated upon ' refer to the actual decision
" (the operative parts of the judgment) as opposed to the grounds or
" reasoning upon which it may be based, in the course of which other
" points of law or fact may have been incidentally decided as pre-
" liminaries (necessary or otherwise) to the final conclusion."
While this on the one hand would
appear to limit the " matter adjudicated
" upon " to the decision of the ultimate question dealt with by the dispositive
or operative part of the judgment, viz. whether or not the plaintiff was
entitled (o the remedy that he claimed that the court ought to grant him
against the defendant as redress for the facts that he relied upon as constitut-
ing his cause of action ; it would, on the other hand, bind the United King-
dom government to treat the decision of that ultimate question as conclusive
whatever might be the grounds or reasoning on which it was based.
In construing a Treaty recourse
may be had, in public international law,
to the travaux preparatoires for the purpose of resolving any ambiguity in
the Treaty ; and it would appear from the history of the negotiations con-
tained in the body of the Report that the Report itself might be regarded
as forming part of the travaux preparatoires. If this were so, recourse to
The Report would in my view clearly lead to the conclusion that the High
Contracting Parties in using the phrase " matter adjudicated upon " had
undertaken to treat as conclusive the dispositive or operative part of the
Where an Act of Parliament is
passed to enable or to require United
Kingdom courts to give effect to international obligations assumed by Her
Majesty's Government under a Treaty, it is a well established rule of con-
struction that any ambiguity in the words of the Act should be resolved in
favour of ascribing to them a meaning which would result in the performance
of those international obligations—not in their breach. For this additional
reason recourse to the Report serves to confirm me in the view that section 8
should be construed as the Court of Appeal construed it.
Lord Simon of Glaisdale
Black Clawson, an English
company, became holders in due course of
two bills of exchange accepted by the predecessor in title of Papierwerke
but dishonoured by Papierwerke. The bills were drawn, negotiated and
payable in England. Black Clawson became their holders only shortly
before action on them in England would have become time-barred by
effluxion of six years from their acceptance. Papierwerke is a German
company without any assets in England, its principal assets being in
Germany ; and, by the German law of limitation of actions, the time for
suing on a bill of exchange is three years. Although it is a slight over-
simplifiaction, for the purpose of this appeal it can be stated that,
according to the expert evidence, in German law effluxion of the period of
limitation bars the remedy (as in England) without extinguishing the right
(as it does in Scotland). Whether a German court should, in an action on
the bills, apply the English limitation period of six years or the German
limitation period of three years depends on the appropriate choice-of-law
rule in German private international law: this is a question to which
different answers have been returned at first instance by the District Court
in Munich and on appeal by the
Bavarian Court of Appeal, and which
now awaits decision by the German Federal Supreme Court. In view of
the doubt whether an action on the bills in Germany would be held to be
time-barred, Black Clawson, though starting such an action, tried to preserve
a fall-back position in England. Before the effluxion of six years from the
date of acceptance they applied ex parte in England for, and obtained, leave
to issue a writ against Papierwerke and to serve it on them in Germany.
Since Black Clawson's German action was proceeding, they gave no notice
to Papierwerke of the issue of the English writ. On the 30th November,
1972, the Munich District Court dismissed Black Clawson's claim on the
bills. The Court held that, under German private international law, the
relevant limitation period was the German one of three years, not the
English of six years, with the result that Black Clawson's claim was time-
barred. The judgment handed down was in three parts. The first (headed
" Final Judgment") has in argument conveniently been called " the
dispositive part". This stated in translation:
" I. The suit is dismissed.
" II. The Plaintiff shall
bear the costs of the dispute.
" III. The judgment is provisionally enforceable."
' [Then followed provisions
permitting the Plaintiff to avert compul-
' sory execution by providing security]'.
The second part of the judgment
handed down (headed "Facts") was a
statement of the facts of the case and the issues. The third part of the
judgment handed down (headed " Grounds for the Decision ") made it clear
that the action was dismissed-on the ground that it was time-barred under
what was held to be the relevant German choice-of-law rule.
Though Black Clawson appealed
against this judgment to the Bavarian
Court of Appeal, they now gave notice to Papierwerke of the issue of the
English writ. Papierwerke countered by a summons to set aside the English
writ and all proceedings in pursuance thereof. The Master dismissed
Papierwerke's summons to set the writ aside. Papierwerke appealed to
Talbot J., who, on the authority of Harris v. Quine (1869) L.R. 4 Q.B.D.
653, in the knowledge of the pending appeal to the Bavarian Court of
Appeal, and in the exercise of his discretion, dismissed Papierwerke's appeal.
In Harris v. Quine the
plaintiffs were attorneys in the Isle of Man and
were retained by the defendant to conduct a suit in the courts of the Isle
of Man. The plaintiffs subsequently sued for their fees in the Isle of Man ;
but the Manx court held that their claim was time-barred by the Manx
statute of limitations, under which the relevant period was three years.
The plaintiffs then used in England within the six-year English limitation
period. It was held by a powerful court that, as the Manx statute barred
the remedy only and did not extinguish the debt, the judgment of the Manx
court was no bar to the English proceedings. Cockburn CJ. said (p. 657):
" . . . . there is no
judgment of the Manx court barring the present
" action as there was no plea going to the merits . . . and the issue
" the Manx court decided in favour of the defendant is not the same
" issue as is raised in the present action ".
Blackburn J. said (p. 658) :
"... all that the Manx
court decided was, that in the courts of the
"Isle of Man the plaintiffs could not recover. If the plaintiffs could
" have shown, as was attempted in Huber v. Steiner Bing. N.C. 202]
" that the law of the Isle of Man extinguished the right as well as the
" remedy, and this had been the issue determined by the Manx court,
" that would have been a different matter ".
Lush J. (p. 658) said:
" Had the Manx statute of
limitations . . . extinguished the right
" after the limited time and not merely barred the remedy, there would
" have been good ground for defence in this court. But the Manx law
" is like our statute of
limitations, and bars the remedy only; and all
" that was decided in the Manx court was, that the action could not be
" maintained there ".
Hayes J. concurred. The decision
has been cited in successive editions of
Dicey's The Conflict of Laws as authority for the words " on the merits "
italicised by me in the proposition that:
" A foreign judgment in
personam ... is a good defence to an action
" in England for the same matter when either—
" (1) the judgment was in
favour of the defendant and was final
" and conclusive on the merits: or . . .".
(Dicey and Morris, The
Conflict of Laws, 9th ed. 1973, Rule 194, p. 1058 ;
cf. 1st ed. 1896, Rule 100, p. 422). Such was the decision which Talbot J.
followed and the rule which he applied. He held that the decision of the
Munich District Court was not final and conclusive " on the merits "; it
merely decided, like the judgment of die Isle of Man Court in Harris v.
Quine, that the plaintiff's remedy was time-barred in the foreign court.
Papierwerke appealed to the
English Court of Appeal. In addition to
argument on the proper exercise of the discretion to allow the English writ
to stand, which they had urged before the Master and Talbot J., Papierwerke
put forward a new point to the Court of Appeal. This was based on section
8(1) of the Foreign Judgments (Reciprocal Enforcement) Act 1933. It was
argued on behalf of Papierwerke that this subsection had abrogated the
decision in Harris v. Quine. The Court of Appeal ( 2 W.L.R. 789)
allowed the appeal. So far as discretion was concerned Lord Denning M.R.
(p. 796A-B) doubted whether it would be a case for leave to serve a writ out
of the jurisdiction. Megaw L.J. said (p. 796C):
" On the arguments
presented before Master Bickford-Smith and
' Talbot J., their decisions were in my opinion right, including their
" exercise of the discretion under R.S.C. Ord. 11, r. 1."
Scarman L.J. said (p. 801 F):
" If the judge was correct
in law in holding that the German judgment
" was not ' res judicata ', I do not think that his exercise of discretion
" can be successfully challenged in this court."
But the Court of Appeal was
unanimous in holding that section 8(1) of the
Act of 1933 had modified the rule in Harris v. Quine, and had rendered the
judgment of the Munich District Court conclusive against any cause of action
on the bills by Black Clawson in this country.
Shortly after the English Court
of Appeal had given judgment, the
Bavarian Court of Appeal gave their judgment. They allowed Black
Clawson's appeal, holding that the limitation period according to German
private international law was the English period of six years not the German
period of three years. The judgment of the Bavarian Court of Appeal is
under appeal to the German Federal Supreme Court. Black Clawson have
appealed to your Lordships against the judgment of the English Court of
Appeal, in order to safeguard themselves in case the Federal Supreme Court
reinstates the judgment of the Munich District Court.
The appeal to your Lordships
raises two main issues: first, what is the
proper interpretation to be given to section 8(1) of the 1933 Act, in particular
in relation to Harris v. Quine ; and, secondly, how far the discretion exercised
by Talbot J. can be reviewed in an appellate tribunal.
I confess, my Lords, that when I
first read section 8 of the 1933 Act I
was under an immediate and powerful impression that the Court of Appeal
must be right. It seemed obvious that subsection (1) was dealing with cause-
of-action estoppel and subsection (3) with issue estoppel. If so, the judgment
of the Munich District Court did not merely determine an issue between the
parties relating to the operation of the German law of limitation of action ;
it dismissed Black Clawson's action founded on the bills ; and such judgment
would have to be recognised in any court in the United Kingdom as conclu-
sive in all proceedings founded on the same cause of action, i.e., liability
arising from acceptance of the bills.
But though the foregoing was my
first and strong impression, I soon
realised that I was looking at section 8 with 1975 eyes and interpreting it in
1974 terms; and that in so doing I was falling into fundamental error.
Contemporanea expositio est fortissimo in lege. The concepts of cause-of-
action and issue estoppel were not developed by 1933 (there is, for example,
no reflection of the distinction in the notes to The Duchess of Kingston's
Case (1776) 20 Howell St. Tr. 537 in the authoritatively edited 1929 edition
of Smith's Leading Cases), and could not possibly be what Parliament and
the draftsman then had in mind. My initial response had been scarcely less
anachronistic than if I had attempted to interpret Magna Carta by reference
to Rookes v. Barnard  AC 1129.
The matter was, in my judgment
put beyond doubt when your Lordships
looked, de bene esse, at the Report of the Greer Committee on Reciprocal
Enforcement of Foreign Judgments (Cmnd. 4213 of 1932). This was the
Report of a committee of lawyers (practising, official and academic) of high
distinction and of great expertise in private international law. Its terms of
" To consider (1) what
provisions should be included in conventions
" made with foreign countries for the mutual enforcement of judgments
" on a basis of reciprocity, and (2) what legislation is necessary or
" desirable for the purpose of enabling such conventions to be made
" and to become effective, or for the purpose of securing reciprocal
" treatment from foreign countries."
The Report discussed the
prevailing law and the various problems which
stood in the way of reciprocal enforcement of judgments. It annexed
Conventions which had been officially negotiated in draft with three foreign
countries (Belgium, France and Germany), and which could be carried
into effect if appropriate legislation was enacted in this country. It drafted
and annexed (Annex 1) a suitable Draft Bill, clause 8 of which corresponds
exactly with section 8 of the 1933 Act. Annex V contains a commentary
on the Draft Bill. Paragraph 13 of Annex V (p. 64) reads :
" Clause 8 contains the
provisions of the Bill with regard to the
" recognition of foreign judgments as final and conclusive between the
" parties as regards the question therein adjudicated upon. It is entirely
" in accordance with the position at Common Law (as explained in
" paragraph 4 of the Report), and Clause 8(3) saves the existing Common
" Law rules in any cases where the rule laid down by the Act may
" be narrower in operation than the Common Law." (My italics.)
Annex IV(b) was a draft
Convention with Germany. Article 3 dealt with
reciprocal recognition of judgments. Paragraph 2 (p. 46) reads:
" The recognition of a
judgment under paragraph (1) of this article
" means that such judgment shall be treated as conclusive as to the
" matter thereby adjudicated upon in any further action between
" the parties (judgment creditor and judgment debtor) and as to such
" matter shall constitute a defence in a further action between them
" in respect of the same cause of action." (My italics.)
There was similar provision in
the draft Conventions with France (p. 54)
and Belgium (p. 38).
If this material and that cited
by my noble and learned friends is available
to a court of construction, it is plain beyond doubt (if there could have
been any doubt) that Parliament (in so far as it legislated in the light
of the Report) did not have in legislative contemplation the modern concepts
of issue and cause-of-action estoppel; it also shows that Parliament did
not mean to abrogate the rule in Harris v. Quine. The Court of Appeal
apparently was not asked to look at the Report. The first questions which
arise in this appeal are therefore whether your Lordships, as a court of
statutory construction, are entitled to examine the Greer Report, and, if
so, for what purpose or purposes: the answers to these questions should
indicate how much of the
material which has been cited from it by my
noble and learned friends and myself is available as an aid to construction.
This raises some fundamental issues relating to statutory construction.
Courts of construction interpret
statutes with a view to ascertaining the
intention of Parliament expressed therein. But, as in interpretation of all
written material, what is to be ascertained is the meaning of what Parliament
has said and not what Parliament meant to say. This is not a self-evident
juristic truth. It could be urged that in a parliamentary democracy, where
the purpose of the legislature is to permit its electorate to influence the
decisions which affect themselves, what should be given effect to is what
Parliament meant to say; since it is to be presumed that it is this that
truly reflects the desired influence of the citizens on the decision-making
which affects them. To this, however, there are three answers. First, in
interpretation of all written material, the law in this country has set great
pragmatic store on limiting the material available for forensic scrutiny:
society generally thereby enjoys the advantages of economy in forensic
manpower and time. By concentrating on the meaning of what has been
said, to the exclusion of what was meant to be said, the material for
scrutiny is greatly reduced. Specifically, experience in the United States
has tended to show that scrutiny of the legislative proceedings is apt to
be a disappointingly misleading and wasteful guide to the legislative intention.
Secondly, interpretation cannot be concerned wholly with what the promul-
gator of a written instrument meant by it: interpretation must also be
frequently concerned with the reasonable expectation of those who may
be affected thereby. This is most clearly to be seen in the interpretation
of a contract: it has long been accepted that the concern of the court is,
not so much with the subject-matter of consent between the parties (which
may, indeed, exceptionally, be entirely absent), as with the reasonable
expectation of the promisee. So, too, in statutory construction, the court
is not solely concerned with what the citizens, through their parliamentary
representatives, meant to say; it is also concerned with the reasonable
expectation of those citizens who are affected by the statute, and whose
understanding of the meaning of what was said is therefore relevant. The
sovereignty of parliament runs in tandem with the rule of objective law.
Thirdly, if the draftsman uses the tools of his trade correctly, the meaning
of his words should actually represent what their promulgator meant to say.
And the court of construction, retracing the same path in the opposite
direction, should arrive, via the meaning of what was said, at what the
promulgator meant to say.
There are, however, two riders
to be noted in relation to this last con-
sideration. First, draftsmen's offices, government departments, houses of
parliament and courts of justice are all manned by fallible human beings ;
with the result that the court's exposition of the meaning of what Parliament
has said is inherently liable to differ from what Parliament meant to say.
The object of the parliamentary and forensic techniques should be to mini-
mise such liability to error; so that artificial rules which stand unnecessarily
in the way (i.e., which cannot be used as a code of communication) should
be eliminated. Secondly, most words in the English language have a number
of shades of meaning. Even the bright isolating rays of the draftsman's
technical skills—his juxtapositions and differentiations—are rarely sufficient
in themselves to pick out without any possibility of mistake by a court of
construction the exact shade of meaning intended, to the exclusion of a
penumbra of other possible meanings. The draftsman therefore needs the
full co-operation of the court of construction: it must be tuned in on the
same wavelength. In order to understand the meaning of the words which
(he draftsman has used to convey what Parliament meant to say, the court
must so far retrace the path of the draftsman as actually to put itself in his
position and that of Parliament. The expositio must be both contemporanea
and eodem loco. All this is merely the counterpart of what my noble and
learned friend, Lord Wilberforce, said in Prenn v. Simmonds  1 W.L.R.
1381 at pp. 1383H-1384A, in relation to the interpretation of another class
of written material:
" The time has long passed
when agreements, even those under seal,
" were isolated from the matrix of facts in which they were set, and
" interpreted purely on internal linguistic considerations ".
I can see no reason why a court
of construction of a statute should limit
itself in ascertaining the matrix of facts more than a court of construction
of any other written material. A public Report to Parliament is an important
part of the matrix of a statute founded on it. Where Parliament is legis-
lating in the light of a public Report I can see no reason why a court of
construction should deny itself any part of that light and insist on groping
for a meaning in darkness or half-light. I conclude therefore that such a
Report should be available to the court of construction, so that the latter
can put itself in the shoes of the draftsman and place itself on the parliamen-
tary benches—in much the same way as a court of construction puts itself
(as the saying goes) in the armchair of a testator. The object is the same
in each case—namely, to ascertain the meaning of the words used, that
meaning only being ascertainable if the court is in possession of the know-
ledge possessed by the promulgator of the instrument.
Halsbury's Laws of England, 3rd ed., vol. 36, p. 411, states:
" Reference may not be made
for the purpose of ascertaining the
" meaning of a statute to the recommendations contained in the report
" of a Royal Commission or of a departmental committee or in a White
" Paper which shortly preceded the statute under consideration because
" it does not follow that such recommendations were accepted by the
" legislature. On the other hand, reports of commissions preceding the
" enactment of a statute may be considered as showing the facts which
" must be assumed to have been within the contemplation of the legis-
" lature when the statute was passed."
As regards the first sentence of
this passage, I find unconvincing the reason
given for non-reference; I should have thought that, in general, recourse to
the statute itself will make it immediately apparent whether or not the recom-
mendation has been accepted by the legislature. I would wish to leave open
for consideration in a later case where the point is crucial whether this
statement is correct.
As regards the second sentence,
the critical questions in the instant case
are whether such a Report (here the Greer Report) may be looked at in
order to ascertain, first, what was the " mischief " which the provision falling
for construction was designed to remedy, secondly, what was believed by
Parliament to be the pre-existing law, and, thirdly, where a draft Bill is
annexed to the Report in the same terms as the statute falling for construc-
tion, the opinion expressed by the committee as to the effect of its provisions.
The first question is, then,
whether the Greer Report can be looked at in
order to ascertain what was the " mischief " which Parliament was seeking
to remedy. " Mischief" is an old, technical expression; but it reflects a
firmly established and salutory rule of statutory construction. It is rare
indeed that a statute can be properly interpreted without knowing what
was the legislative objective. It would be trespassing on your Lordships'
patience were I to repeat what, in collaboration with my noble and learned
friend, Lord Diplock, I said about this matter in Maunsell v. Olins 
3 W.L.R. 835, 847-849. At the very least, ascertainment of the statutory
objective can immediately eliminate many of the possible meanings that the
language of the Act might bear; and, if an ambiguity still remains, con-
sideration of the statutory objective is one of the means of resolving it.
The statutory objective is
primarily to be collected from the provisions
of the statute itself. In these days, when the long title can be amended in
both Houses, I can see no reason for having recourse to it only in case of
an ambiguity—it is the plainest of all the guides to the general objectives
of a statute. But it will not always help as to particular provisions. As to
the statutory objective of these, a Report leading to the Act is likely to be
the most potent aid; and, in my
judgment, it would be mere obscurantism
not to avail oneself of it. There is, indeed, clear and high authority that it
is available for this purpose.
In River Wear Commissioners
v. Adamson (1877) 2 App. Cas. 743, 763,
Lord Blackburn said:
" In all cases the object
is to see what is the intention expressed by
" the words used. But, from the imperfection of language, it is
" impossible to know what that intention is without inquiring further,
" and seeing what the circumstances were with reference to which the
" words were used, and what was the object, appearing from those
" circumstances, which the person using them had in view ".
In Eastman Photographic
Materials Company Ltd. v. Comptroller-General
of Patents, Designs & Trade Marks  A.C. 571 the Earl of Halsbury L.C.
cited this passage from Lord Blackburn's speech specifically as authority
for looking at the Report of a commission in the light of which Parliament
had enacted the statute which fell for construction in the Eastman case. At
p. 573 Lord Halsbury said:
"... I think it desirable
... to say something as to what sources
" of construction we are entitled to appeal to in order to construe a
" statute. Among the things which have passed into canons of construc-
" tion recorded in Heydon's Case [(1584) 3 Rep. 7a], we are to see
" what was the law before the Act was passed, and what was the
" mischief or defect for which the law had not provided, what remedy
" Parliament appointed, and the reason of the remedy."
Lord Halsbury then (p. 574)
cited at length from the Report of the commission
dealing with the law pre-existing the Act which fell for construction and with
its defects ; and added (p. 575):
" I think no more accurate
source of information as to what was the
" evil or defect which the Act of Parliament now under construction
" was intended to remedy could be imagined than the report of that
Lord Halsbury also cited Turner
L.J. in Hawkins v. Gathercole (1855)
6 De G. M. & G. 1, 21 as further authority. I am therefore of opinion
that the Greer Report is available to your Lordships in construing the 1933
Act, by way of helping to show what facts were within the knowledge of
Parliament and what was the defect in the pre-existing law which called
for parliamentary remedy.
Ascertainment of a defect in the
law presupposes ascertainment of the
law which contains the defect. But, for purposes of statutory construction,
is it the pre-existing Jaw, as correctly determined, which is relevant, or what
that law was understood to be?
There may be a communis error
as to the law. This is a source of law
until it is corrected (see Broom's Legal Maxims, 10th ed. 1939, p. 86).
Indeed, a legal error may well be held to be too inveterate for correction
(see, e.g., Ross Smith v. Ross Smith  A.C. 280). Once it is accepted
that the purpose of ascertainment of the antecedent defect in the law is to
interpret Parliament's intention, it must follow that it is Parliament's under-
standing of that law as evincing such a defect which is relevant, not what
the law is subsequently declared to be. On reflection, I do not think that
my hesitation on this point in Povey v. Povey  Fam. 40, 52C was
justified. See also Barras v. Aberdeen Steam Trawling & Fishing Co. 
There is another canon of
construction, which I shall have to cite later
in greater detail, to which, for the same foregoing reasons, it is Parliament's
understanding of the law which is relevant, rather than the law in an
abstract juridical correctitude. This is the canon whereby the courts will
presume that Parliament would use clear words if the intention were to
abrogate a long-standing rule of law: though, no doubt, courts of construction
will be readier to apply this
presumption if satisfied that the rule in question
is juridically well founded and if its framers carry weight in the law;
whereas, on the other hand, the presumption will be weaker if the rule has
been authoritatively questioned.
My Lords, I have spoken of "
Parliament's " understanding of the law.
Of course, a settlor, a testator, the parties to a contract, or individual
members of Parliament, may not know the relevant law. It is the draftsmen
of the instrument in question who knows the law (or is presumed to do so);
and his knowledge, so far as forensic interpretation is concerned, is
irrebuttably imputed to the person for whom he is drafting. The draftsman
knows the legal effect that the person for whom he is drafting wants to
bring about; and he will draft accordingly, against his understanding of
the prevailing law, and using as a code of communication to the courts of
construction various canons of construction. Few testators will have heard
of the rule in Gundry v. Pinniger (1851) 14 Beav. 94; (1852) 1 DeG.M. & G.
502. But few draftsmen of wills will be ignorant of the rule; so that when
the words " next of kin " appear in a will there is a strong though rebuttable
presumption that the draftsman used them to denote those who would be
the testator's next of kin on his death, and an irrebuttable presumption that
the draftsman so used them in order to produce the legal effect desired
by the testator. Similarly, many M.P.s do not know the legal rule that when
the word " child " is used in a legal instrument, it is presumptively taken to
mean a legitimate child; but the draftsman of the statute does know this;
and a court of construction will conclude that his usage was to carry into
legal effect what Parliament desired. So again, few M.P.s in 1933 will
have known of the rule in Harris v. Quine; but few, if any, members of
the Greer Committee, which drafted Clause 8 of the Draft Bill, will have
been ignorant of it. I have pointed out that this rule had been cited in
successive editions of Dicey without question. It had been followed in
the Commonwealth and in the United States. No one had suggested that
it was wrongly decided. It made good sense: any other rule would make
the foreign judgment conclusive as to more than it actually decided. The
legal knowledge of the Greer Committee as draftsmen of the 1933 Act must
be ascribed to Parliament in its enactment.
Quite apart from the
irrebuttable ascription to Parliament of a
draftsman's knowledge of the law in relation to which Parliament is
legislating, in my view a Report like that of the Greer Committee can
also be looked at independently like any other work of legal authority in
order to ascertain what was conceived to be the prevailing state of the law.
The most difficult question in
this appeal, to my mind, arises out of the
modern practice of annexation to a Report to Parliament of a draft Bill
with a commentary on it. Is such a commentary available to a court
construing the ensuing statute?
My Lords, before turning to this
question, may I venture to summarise
what aids to construction your Lordships obtain from the Greer Report
irrespective of its commentary on the draft Bill?:—(1) Harris v. Quine,
although not cited by name, was part of the antecedent common law;
(2) negatively, the rule in Harris v. Quine was not regarded as a defect
requiring remedy; (3) positively, the Conventions negotiated in draft, and
for which the staute was required for legal implementation, reflected, and
thereby endorsed, the rule in Harris v. Quine ; (4) a provision such as the
subsequent section 8(1) of the 1933 Act might well be restrictive of the
common law; if therefore such a provision were enacted as part of the
codification of the common law it would require a saving clause (such as
the subsequent section 8(3)): although this was specifically stated in the
commentary, it sufficiently appears from the body of the Report.
The foregoing, however, although
going far to showing that section 8(1)
was not meant to abrogate the rule in Harris v. Quine, is not absolutely
conclusive when it comes to interpretation. It unfortunately happens, occa-
sionally, that a statutory provision has an unlooked-for effect. Such a
situation is sometimes described
in the phrase, " Whatever Parliament was
" aiming at, it hit such-and-such a target fair and square ". If the words of
section 8 can only be read as abrogating the rule in Harris v. Quine, why
then, it must be so, however little that was the legislative objective. After
all, the first and most elementary (and, I would add, salutory) rule of con-
struction is that the words of a statute must be read in the most natural sense
which they bear in their context. But I do not myself so read section 8.
There is, in fact, ambiguity inherent in it; it lies in the word " judgment".
This word in its context is capable of meaning either the " dispositive " part
of the court's pronouncement only, or the whole of such pronouncement
including the grounds of judgment. If "judgment" in section 8(1) refers
only to the " dispositive " part of the pronouncement of the court, I think
that it would inevitably follow that Harris v. Quine has been abrogated: an
action on the bills has been dismissed, and that is an end of it. But if
" judgment" embraces also the grounds of the decision, all that is " conclu-
" sive between the parties " is what the whole " judgment", including its
grounds, has decided. In the instant case that was that Black Clawson's
claim was time-barred in Germany. If, as I think, " judgment" is so ambi-
guous, the ambiguity must be resolved. There are, in fact, three canons of
construction available here for its resolution.
The first is that clear and
unmistakeable words will be required for the
abrogation of a long-standing rule of common law: see Maxwell on Inter-
pretation of Statutes, 12th ed. 1969, p. 116:
" It is a well established
principle of construction that a statute is
" not to be taken as affecting fundamental alteration in the general law
" unless it uses words that point unmistakeably to that conclusion."
(Devlin J. in National
Assistance Board v. Wilkinson  2 Q.B. 648, 661.)
The rule in Harris v. Quine was just such a long-standing rule of law as is
appropriate for the application of this canon: and any ambiguity must be
resolved in such a way that the rule in Harris v. Quine is not abrogated.
Secondly, consideration of the
legislative objective is available and required,
not only to place a court of construction in the shoes of the draftsman, but
also to resolve any ambiguity: see Maunsell v. Olins at p. 849 E-G. It was
no part of the legislative objective to abrogate the rule in Harris v. Quine;
so that the construction which does not have that effect should be preferred.
Thirdly, there is a presumption against a change of terminological usage:
" It is a sound rule of
construction to give the same meaning to the
" same words occurring in different parts of an Act of Parliament."
(Cleasby B. in Courtauld v.
Legh (1869) L.R. 4 Ex. 126, 130). A fortiori
when the words occur in the same section of an Act. " Judgment " in
subsection (3) can only be read in its wider sense, as including the grounds
of decision ; it cannot be limited to the " dispositive " part of the judgment
(" any matter of law or fact decided therein"). There is therefore a
presumption that "judgment" in subsection (1) is also not so limited.
For all these reasons this does
not seem to me to be a case where it can
be said that, whatever Parliament was trying to do, it succeeded, however
inadvertently, in abrogating the rule in Harris v. Quine.
It remains to consider, in this
context, section 8(3); i hope that I have
sufficiently indicated that the Report in itself, without necessity of recourse
to the commentary, indicates the objective of this subsection—namely, that
it was inserted as a saving provision and by way of reassurance. I should,
1 think, in any event, have surmised from the use of the common drafting
formula, " Nothing in this section shall be taken to prevent . . .", that the
subsection was inserted ex abundanti cautela, and was not intended as a
substantive provision to deal with issue estoppel in contradistinction to cause-
of-action estoppel dealt with in section 8(1).
is therefore that, regardless of the draft Bill and the
commentary thereon, the Greer Report is available as an aid to construction
in such a way as to make it clear that it was not the intention of Parliament
in section 8(1) to abrogate the
rule in Harris v. Quine. It is, thus,
unnecessary to decide whether the commentary on the draft Bill is also
available as an aid to construction. But the technique of a draft Bill with
commentary is so common nowadays in Reports to Parliament as
to excuse, I hope, some expatiation on the matter. The argument
against recourse to such a commentary is that if what Parliament
or parliamentarians (or, indeed, any promulgators of a written
instrument) think is the meaning of what is said is irrelevant, so must
be the opinion of any draftsman, including the draftsman of a Bill
annexed to a Report to Parliament. But I confess that I find this less than
conclusive. In essence, drafting, enactment and interpretation are integral
parts of the process of translating the volition of the electorate into rules
which will bind themselves. If it comes about that the declared meaning
of a statutory provision is not what Parliament meant, the system is at fault.
Sometimes the fault is merely a reflection of human fallibility. But where
the fault arises from a technical refusal to consider relevant material, such
refusal requires justification. The commentary on a draft Bill in a report
to Parliament is not merely an expression of opinion—even if it were only
that, it would be an expression of expert opinion, and I can see no more
reason for excluding it than any other relevant matter of expert opinion.
But, actually it is more: that experts publicly expressed the view that a
certain draft would have such-and-such an effect is one of the facts within
the shared knowledge of Parliament and the citizenry. To refuse to consider
such a commentary, when Parliament has legislated on the basis and faith
of it, is for the interpreter to fail to put himself in the real position of the
promulgator of the instrument before essaying its interpretation. It is
refusing to follow what is perhaps the most important clue to meaning.
It is perversely neglecting the reality, while chasing shadows. As Aneurin
Bevan said: " Why gaze in the crystal ball when you can read the book? "
Here the book is already open: it is merely a matter of reading on. Cer-
tainly, a court of construction cannot be precluded from saying that what
the committee thought as to the meaning of its draft was incorrect. But that
is one thing: to dismiss, out of hand and for all purposes, an authoritative
opinion in the light of which Parliament has legislated is quite another.
So, as at present advised, I
think that your Lordships would have been
entitled, if necessary, to consider the commentary of the Greer Committee on
Ihe draft Bill.
The only other matter that I
need add in this part of the case is that I
agree with those of my noble and learned friends who hold that section 8
is not limited to plaintiffs' judgments.
In my view, therefore, Talbot J.
was correct in following Harris v. Quine,
and in holding that he had a discretion whether to allow the writ to stand.
After he had given judgment Black Clawson's appeal from the decision of
the Munich District Court to the Bavarian Court of Appeal was heard and
determined. It was argued that this was a new factor, showing a commit-
ment to the proceedings in Germany which would make it inequitable to
allow a fall-back position in England. But Talbot J. exercised his discretion
in the knowledge that such an appeal was pending; so it is no new factor
permitting an appellate tribunal to substitute its own exercise of discretion
for that of the Judge in Chambers. Unless the discretion has been exercised
in legal or factual error, an appellate court should not other than excep-
tionally interfere with the Judge's discretion unless it is seen on other grounds
that his decision might well result in injustice being done: Evans v. Bartlam
 A.C. 473 ; Charles Osenton & Co. v. Johnston  A.C. 130, 138 ;
Blunt v. Blunt  A.C. 517, 526-527; Shiloh Spinners Ltd. v. Harding
 A.C. 691, 728; I respectfully agree with Megaw and Scarman L.JJ.
that there are no grounds in the instant case for interfering with the exercise
of discretion by the Judge in Chambers. I would therefore allow the appeal.
On the other hand, I cannot
accede to the contention on behalf of Black
Clawson that they should be at liberty to pursue their remedy in England
even if the Federal Supreme Court should decide in their favour. I there-
fore agree with the Order proposed by my noble and learned friends, Lord
Wilberforce and Viscount Dilhorne.
318086 Dd 896252 120 2/75 StS.