Success for Andrew Onslow QC and Clarissa Jones in appeal over enforceability of foreign “judgments on judgments”

On 30 November 2020 the Court of Appeal handed down judgment in Strategic Technologies PTE Ltd v Procurement Bureau of the Republic of China Ministry of National Defence [2020] EWCA Civ 1604 in which it unanimously upheld the MND’s appeal against the registration of a Cayman judgment which was itself based on a Singapore judgment.

Andrew Onslow QC and Clarissa Jones acted on behalf of the MND (instructed by Dechert LLP).

Lord Justice Males, with whom Lord Justice Richards and Lady Justice Elisabeth Laing agreed, found that the Administration of Justice Act 1920 does not permit registration of a judgment given by one Commonwealth state in an action to enforce a judgment given by another state. The Court of Appeal set aside the order registering the Cayman judgment, the consequence being that ST is unable to enforce that judgment against the MND in England.

The ambiguity had stemmed from the Act’s definition of “judgment”, namely “any judgment or order given or made by a court in any civil proceedings…whereby any sum of money is made payable”. Unlike the Foreign Judgments (Reciprocal Enforcement) Act 1933, the 1920 scheme does not expressly exclude the registration of judgments upon judgments.

The Court of Appeal accepted the MND’s argument that it should adopt a purposive, rather than a literal, approach to the meaning of the Act. The Court reached this conclusion for two key reasons:

• The fundamental principle on which the Act is based is one of reciprocity and to interpret the Act as permitting registration of a judgment on a judgment would unbalance this reciprocity.  It would mean that a judgment given in a state with which no such reciprocal arrangements existed (for example, the United States) could be registered for enforcement in England by the expedient of an action to enforce that judgment in an intermediate state to which the Act does apply.  This is a practice sometimes described as “judgment laundering”.
• The safeguards included in section 9(2) of the Act only make sense if they refer to the proceedings in the court which gave judgment on the underlying dispute. It is fundamental to the operation of the Act that the English court should be able to scrutinise the proceedings in the court which gave judgment on the underlying dispute in order to ensure that the conditions for registration are satisfied.

This decision will be of interest in terms of the legal principles which underpin the recognition and enforcement of foreign judgments in England.  The Court of Appeal noted that the common law position regarding the enforceability of judgments on judgments has never been decided and did not deem it necessary to determine the point in the context of this appeal.  However, whilst the Court found that the Act does not codify the common law, commentators have often assumed that the Act was intended to follow the common law in terms of the need for the foreign judgment be final and conclusive on the merits.

Click here to read the full judgment.