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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Strategic Technologies PTE Ltd v Procurement Bureau of the Republic of China Ministry of National Defence [2020] EWCA Civ 1604 (30 November 2020) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1604.html Cite as: [2021] QB 999, [2021] 4 All ER 189, [2021] 2 WLR 448, [2020] EWCA Civ 1604 |
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ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
Mrs Justice Carr
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MALES
and
LADY JUSTICE ELISABETH LAING
____________________
STRATEGIC TECHNOLOGIES PTE LTD |
Respondent |
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- and - |
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PROCUREMENT BUREAU OF THE REPUBLIC OF CHINA MINISTRY OF NATIONAL DEFENCE |
Appellant |
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Hashim Reza (instructed by Bower Cotton Hamilton LLP) for the Respondent
Hearing date: Tuesday 10th November 2020
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Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be on Monday 30th November 2020 at 10.30 a.m.
Lord Justice Males:
The facts
Registration of the Cayman judgment
The judgment of Carr J
(1) The English registered judgement was not validly served on the MND in Taiwan in April 2016.
(2) Such service should not be validated retrospectively.
(3) ST's application in 2016 to register the Cayman judgment under the 1920 Act was not statute-barred.
(4) The 1920 Act permits registration in England of a judgment on a judgment, that is to say it gives the court a discretion to register such a judgment provided that the conditions in section 9(2) of the Act are satisfied.
(5) Those conditions were satisfied because the MND had submitted to the jurisdiction of the Singapore court as a matter of Cayman Islands law.
(6) As a matter of discretion it was appropriate to allow the Cayman judgment to be registered in England notwithstanding the delay since the Singapore judgment had been obtained and the failure of ST to take steps to enforce the English registered judgment which it had obtained in 2004.
(7) The registration of the Cayman judgment should not be set aside for non-disclosure or misrepresentation by ST.
(8) The Writ of Control issued by the English court under Article 53 of the Recast Brussels Regulation as a precursor to enforcement in Italy and France should be set aside.
"87. Whilst I accept that the AJA falls to be construed on its own terms, I am unable to accept the MND's contention that it does not apply to the registration of foreign judgments on foreign judgments made in civil proceedings whereby a sum of money is payable. The definition of 'judgment' provided for in s. 12 of the AJA is very broad and the word 'any', in particular, powerfully inclusive. However desirable it might [be] for judgments on judgments not to be registrable under the AJA and for there to be deterrence against the 'laundering' of judgments, there is no escaping the clear and express words of s. 12 of the AJA, legislation which, unlike the 1933 Act, has not been amended so as to exclude the registration of judgments on judgments. The words of s. 12 of the AJA do not permit a construction which excludes the registration of the Cayman Default Judgment which was a judgment made by a court in civil proceedings whereby a sum of money was made payable. Professor Briggs does not analyse how they might. If Parliament wishes to exclude a judgment on a judgment from registration under the AJA, it can do so by legislative change, as exemplified by the amendment to the 1933 Act. But as a matter of construction the present words of s. 12 encompass the Cayman Default Judgment and ST was able properly to invoke the AJA."
The 1920 Act
"Reciprocal Enforcement of Judgments in the United Kingdom and in Other Parts of His Majesty's Dominions."
"Enforcement in the United Kingdom of judgments obtained in superior courts in other British dominions.
(1) Where a judgment has been obtained in a superior court in any part of His Majesty's dominions outside the United Kingdom to which this Part of this Act extends, the judgment creditor may apply to the High Court in England … at any time within twelve months after the date of the judgment, or such longer period as may be allowed by the court, to have the judgment registered in the court, and on any such application the court may, if in all the circumstances of the case they think it just and convenient that the judgment should be enforced in the United Kingdom, and subject to the provisions of this section, order the judgment to be registered accordingly.
(2) No judgment shall be ordered to be registered under this section if—
(a) the original court acted without jurisdiction; or
(b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court; or
(c) the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court; or
(d) the judgment was obtained by fraud; or
(e) the judgment debtor satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment; or
(f) the judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering court.
(3) Where a judgment is registered under this section—
(a) the judgment shall, as from the date of registration, be of the same force and effect, and proceedings may be taken thereon, as if it had been a judgment originally obtained or entered up on the date of registration in the registering court;
(b) the registering court shall have the same control and jurisdiction over the judgment as it has over similar judgments given by itself, but in so far only as relates to execution under this section;
(c) the reasonable costs of and incidental to the registration of the judgment (including the costs of obtaining a certified copy thereof from the original court and of the application for registration) shall be recoverable in like manner as if they were sums payable under the judgment.
(4) Rules of court shall provide
(a) for service on the judgment debtor of notice of the registration of a judgment under this section; and
(b) for enabling the registering court on an application by the judgment debtor to set aside the registration of a judgment under this section on such terms as the court thinks fit; and
(c) for suspending the execution of a judgment registered under this section until the expiration of the period during which the judgment debtor may apply to have the registration set aside.
(5) In any action brought in any court in the United Kingdom on any judgment which might be ordered to be registered under this section, the plaintiff shall not be entitled to recover any costs of the action unless an application to register the judgment has previously been refused or unless the court otherwise orders."
"The expression 'judgment' means any judgment or order given or made by a court in any civil proceedings, whether before or after the passing of this Act, whereby any sum of money is made payable, and includes an award in proceedings on an arbitration if the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a court in that place.
The expression 'original court' in relation to any judgment means the court by which the judgement was given."
"(1) Where His Majesty is satisfied that reciprocal provisions have been made by the legislature of any part of His Majesty's dominions outside the United Kingdom for the enforcement within that part of His dominions of judgments obtained in the High Court in England, the Court of Session in Scotland, and the High Court in Northern Ireland, His Majesty may by Order in Council declare that this Part of this Act shall extend to that part of His dominions, and on any such Order being made this Part of this Act shall extend accordingly.
(2) An Order in Council under this section may be varied or revoked by a subsequent Order."
The Foreign Judgments (Reciprocal Enforcement) Act 1933
(1) If, in the case of any foreign country, His Majesty is satisfied that, in the event of the benefits conferred by this Part of this Act being extended to, or to any particular class of, judgments given in the courts of that country or in any particular class of those courts, substantial reciprocity of treatment will be assured as regards the enforcement in that country of similar judgments given in similar courts of the United Kingdom, He may by order in Council direct—
(a) that this Part of this Act shall extend to that country;
(b) that such courts of that country as are specified in the Order shall be recognised courts of that country for the purposes of this Part of this Act; and
(c) that judgments of any such recognised court, or such judgments of any class so specified, shall, if within subsection (2) of this section, be judgments to which this Part of this Act applies.
(2) A judgment of a recognised court is within this subsection if it satisfies the following conditions, namely—
(a) it is either final and conclusive as between the judgment debtor and the judgment creditor or requires the former to make an interim payment to the latter; and
(b) there is payable under it 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 force of the Order in Council which made that court a recognised court.
(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.
(4) His Majesty may by a subsequent Order in Council vary or revoke any Order previously made under this section.
(1) On an application in that behalf duly made by any party against whom a registered judgement may be enforced, the registration of the judgement—
(a) shall be set aside if the registering court is satisfied—
(i) that the judgment is not a judgment to which this Part of this Act applies or was registered in contravention of the foregoing provisions of this Act; or
(ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or
(iii) that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or
(iv) that the judgment was obtained by fraud; or
(v) that the enforcement of the judgment would be contrary to public policy in the country of the registering court; or
(vi) that the rights under the judgment are not vested in the person by whom the application for registration was made;
(b) may be set aside if the registering court is satisfied that the matter in dispute in the proceedings in the original court had previously to the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter.
(2) For the purposes of this section the courts of the country of the original court shall, subject to the provisions of subsection (3) of this section, be deemed to have had jurisdiction—
(a) in the case of a judgment given in an action in personam—
(i) if the judgment debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings . . .; or
(ii) if the judgment debtor was plaintiff in, or counter-claimed in, the proceedings in the original court; or
(iii) if the judgment debtor, being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of the country of that court; or
(iv) if the judgment debtor, being a defendant in the original court, was at the time when the proceedings were instituted resident in, or being a body corporate had its principal place of business in, the country of that court; or
(v) if the judgment debtor, being a defendant in the original court, had an office or place of business in the country of that court and the proceedings in that court were in respect of a transaction effected through or at that office or place;
(b) in the case of a judgment given in an action of which the subject matter was immovable property or in an action in rem of which the subject matter was movable property, if the property in question was at the time of the proceedings in the original court situate in the country of that court;
(c) in the case of a judgment given in an action other than any such action as is mentioned in paragraph (a) or paragraph (b) of this subsection, if the jurisdiction of the original court is recognised by the law of the registering court.
(3) Notwithstanding anything in subsection (2) of this section, the courts of the country of the original court shall not be deemed to have had jurisdiction—
(a) if the subject matter of the proceedings was immovable property outside the country of the original court; or …
(c) if the judgment debtor, being a defendant in the original proceedings, was a person who under the rules of public international law was entitled to immunity from the jurisdiction of the courts of the country of the original court and did not submit to the jurisdiction of that court.
"The Act of 1920 provided for the registration of a judgment obtained in His Majesty's Dominions, but did not deal with foreign judgments. The heading of the Act of 1920 is: 'An Act to amend the law with respect to the administration of justice and with respect to the constitution of the Supreme Court, to facilitate the reciprocal enforcement of judgments and awards in the United Kingdom and other parts of His Majesty's Dominions or Territories under His Majesty's protection,' and the heading of Part II of the same statute is: 'Reciprocal Enforcement of Judgments in the United Kingdom and in other parts of His Majesty's Dominions,' and did not in any way deal with foreign judgments. It was however fully appreciated by those who thought about foreign judgments, that British judgments were never enforced as of right in foreign countries, and that was believed, and rightly believed, to operate as an injustice to this country. Whereas we enforced foreign judgments by means of action in this country, foreign countries refused to enforce the judgments obtained in this country, and it was to deal with that situation that the statute of 1933 was passed, but incidentally, it also dealt with Dominion judgments. Now it seems to me to be quite clear with regard to s.1 and s.2 of the Act of 1933, that the statute is concerned with the enforcement of foreign judgments and Dominion judgments, where it could be established that there were reciprocal rights in the foreign countries or in the Dominions …"
The Civil Jurisdiction and Judgments Act 1982
The submissions on appeal
Discussion
The position at common law
"The theoretical basis for the enforcement of foreign judgments at common law is that they are enforced on the basis of a principle that where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained: Williams v Jones (1845) 13 M & W 628, 633 per Parke B; Godard v Gray (1870) LR 6 QB 139, 147, per Blackburn J; Adams v Cape Industries plc [1990] Ch 433, 513; Owens Bank Ltd v Bracco [1992] 2 AC 443, 484, per Lord Bridge of Harwich. As Blackburn J said in Godard v Gray, this was based on the mode of pleading an action on a foreign judgment in debt, and not merely as evidence of the obligation to pay the underlying liability: LR 6 QB 139, 150. …"
"… But this is a purely theoretical and historical basis for the enforcement of foreign judgments at common law. It does not apply to enforcement under statute, and makes no practical difference to the analysis, nor, in my judgment, to the issues on these appeals."
"My Lords, I think that in order to establish that such a judgment has been pronounced it must be shewn that in the Court by which it was pronounced it conclusively, finally, and for ever established the existence of the debt of which it is thought to be made conclusive evidence in this country, so as to make it res judicata between the parties. If it is not conclusive in the same Court which pronounced it, so that notwithstanding such a judgment the existence of the debt may between the same parties be afterwards contested in that Court, and upon proper proceedings being taken and such contest being adjudicated upon, it may be declared that there existed no obligation to pay the debt at all, then I do not think that a judgment which is of that character can be regarded as finally and conclusively evidencing the debt, and so entitling the person who has obtained the judgment to claim a decree from our Courts for the payment of the debt.
The principle upon which I think our enforcement of foreign judgments must proceed is this: that in a Court of competent jurisdiction, where according to its established procedure the merits of the case were open, at all events, to the parties, however much they may have failed to take advantage of them, or may have waived any of their rights, a final adjudication has been given that a debt or obligation exists which cannot thereafter in that Court be disputed, and can only be questioned in an appeal to a higher tribunal. In such a case it may well be said that giving credit to the Court of another country we are prepared to take the fact that such adjudication has been made as establishing the existence of the debt or obligation. But where, as in the present case, the adjudication is considered with the non-existence of the debt or obligation which it is sought to enforce, and it may thereafter be declared by the tribunal which pronounced it that there is no obligation and no debt, it appears to me that the very foundation upon which the Courts of this country would proceed in enforcing a foreign judgment altogether fails."
The correct approach
"18. The Board agrees that each of the two orders that the wife sought to register for enforcement constitutes a 'judgment' as defined in section 2(1). It does not consider that it can derive much assistance, in determining what was intended to come within the definition of the term 'judgment' in the Act, from older common law cases, such as Nouvion v Freeman. This is particularly so when the order with which the Board is concerned is an order made in proceedings brought under the Matrimonial Causes Act 1973, which sets up a specialised statutory scheme for the making of orders regulating family finances on the breakdown of a marriage. The Board therefore focuses on the words of the definition in section 2(1). As there provided, what is required is that there is a judgment or order in civil proceedings whereby a sum of money is made payable."
A literal approach
A more purposive construction
"21. My interpretation of the term 'judgment' is consistent with the purpose of the legislation as contained in sections 29(1) and 37(1). To allow the appellant's judgment to be registered in British Columbia would have the effect of permitting registration of a judgment granted by a court of a non-reciprocating jurisdiction, contrary to the intent of sections 29(1) and 37(1). In my view, the Legislature did not intend to provide for registration in British Columbia of a judgment granted by a court of another jurisdiction by an indirect method it is not permitted to be done directly. Otherwise, when the Lieutenant Governor in Council declared a state to be a reciprocating state, it would have the effect of declaring all of the jurisdictions that are reciprocal to that jurisdiction to also be states reciprocal to British Columbia for the purpose of registering judgements. In the case of declaring California to be a reciprocating state, the Lieutenant Governor in Council would effectively be declaring all other states of the United States of America to be reciprocating states because California permits the entry of sister state judgements issued by a court of any of the states of the United States."
The commentators
"It is unlikely, however, that 'judgment' in this sense extends to a decision of a foreign court that the judgment of the court of a third country is entitled to be enforced under the law of the foreign country, even where the proceedings in the foreign court were contested by parties who submitted to its jurisdiction in relation to this issue. The civil law principle that exequatur sur exequatur ne vaut is sometimes used to help explain why a judgment from the third state is not converted into an enforceable judgment by virtue of its recognition or endorsement by another court. Though no English case expressly so holds, the principle is sound for at least three reasons: the effect of the foreign proceedings will often only be to declare the third country judgment to be enforceable or executable within the territory of the foreign court, an order which by its very terms can have no effect in England; the foreign judgment will not usually be on the merits of the claim; and because of the confusion liable to result if both the judgment of the third country and the foreign (enforcement) judgment were to be separately enforceable in England".
Other matters
Disposal
Lady Justice Elisabeth Laing:
Lord Justice David Richards:
UPON the Appellant's appeal against the Order of Mrs Justice Carr dated 21 February 2020 dismissing the Appellant's application to set aside the Order of Master Yoxall dated 4 April 2016
AND UPON HEARING counsel for the Appellant, Mr Andrew Onslow QC, and Counsel for the Respondent, Mr Hashim Reza
IT IS ORDERED that:
(i) Paragraph 2 of Carr J.'s Order dated 26 February 2020 is set aside.
(ii) The Respondent is to pay:
(a) the Appellant's costs of its application in the court below to set aside the Order of Master Yoxall dated 4 April 2016, to be assessed on the standard basis if not agreed;
(b) the Appellant's costs of the appeal, to be assessed on the standard basis if not agreed.
(iii) The Respondent is to pay £300,000 on account of costs to the Appellant by 4pm on 21 December 2020.
(iv) The Respondent is to pay the Appellant interest on the costs ordered in (ii) above from the date that the costs were paid by the Appellant to its solicitors at the rate of 1.5% above base.
Dated this 30 November 2020.