Registration under the 1920 Act: jurisdiction of the foreign court

The Act provides that judgment shall not be registered if the court acted without jurisdiction.^[1] In practice this means that if the judgment, on this ground, should not have been registered, the registration will be set aside on the defendant’s application.

As far as a defendant is concerned, it is a defence to registration if he neither ordinarily resided, nor carried on business, within the jurisdiction of the court, nor did otherwise appear or submit to the foreign court. In other words, ordinary residence, and the carrying on of business, and submission give the foreign court the jurisdictional connection which the Act requires. This is close to, but not precisely the same as, the conditions for jurisdictional competence under the common law. In particular, it suggests that if the defendant was simply present within the jurisdiction of the foreign court, registration under the Act may be set aside, leaving the judgment creditor to proceed at common law.

If the defendant appeared before the foreign court for the purpose of objecting to its jurisdiction or to seek a stay for another court or for arbitration, this will not be counted as his submission. Although Civil Jurisdiction and Judgments Act 1982, Section 33, does not specifically apply to the 1920 Act, there is no reason why its re statement of what amounts to submission to a foreign court would not apply to ‘submission’ for the purposes of the 1920 Act.

Registration under the 1920 Act: substantive defences to registration

Most of the common law defences to recognition of foreign judgments are reflected in the statutory reasons to set aside registration under the 1920 Act.

The defence of fraud has the full width of the common law rule as traditionally understood. Although this may be justified on the basis that the 1920 Act has to be interpreted as though fraud meant and included what was understood as the fraud defence a century ago, in fact the content of the defence has not significantly changed. A defence resembling the contention that the foreign procedure failed to observe the requirements of natural justice is framed in a slightly restrictive way, in terms of lack of due service. To the extent that the judgment was not covered by this provision, but was still rendered in breach of the rules of natural justice, it is hard to see that it would be just and convenient to register it; and in any event, the Human Rights Act 1998 will necessarily apply to applications made under this Section. The defence, which is framed in terms of public policy,^[2] is directed at the underlying cause of action, rather than at registration of a judgment founded on it; but this will rarely be a distinction with practical importance.

There is one further defence which is not mirrored in the common law rules: if an appeal is pending or is intended to be lodged, the judgment shall not be registered. The Act does not specifically require that the foreign judgment must be enforceable under the law under which it was given, but if there is to be an appeal, registration will not be allowed. The effect is loosely analogous to the common law requirement that the judgment must be enforceable in the State of origin for registration to be permitted. As the procedure is one which registers, and allows enforcement of, the judgment itself, if the status of the judgment has yet to be settled registration would be premature; in this respect the procedure is different from that of the common law.

• [1] Section 9(2)(a): this is undefined. Section 9(2)(b) then sets out, more or less exactly, the common law principles of jurisdiction, and says that a judgment shall not be registered if these are contravened. 2 Section 9(2)(b). 3 Which is applicable to both individual and corporate defendants. 4 See for example Strategic Technologies Pte Ltd v Procurement Bureau of the Republic of China Ministry of National Defence [2020] EWCA Civ 1604. 5 The reasoning employed by the House of Lords in Owens Bank Ltd v Bracco [1992] 2 AC 443 would strongly suggest that the wording of the 1920 Act was, and was intended as, a reflection of the common law as it was then understood. That being so, the acceptance, in Adams v Cape Industries Pic [1990] Ch 433, of presence, as distinct from residence, may mean either that the common law has moved on since 1920, or that Adams v Cape Industries Pic was wrongly decided. The former seems right. 6 The reasoning in Strategic Technologies Pte Ltd v Procurement Bureau of the Republic of China Ministry of National Defence [2020] EWCA Civ 1604 might call into question this sensible conclusion, but it should not be allowed to do so. 7 Section 9(2)(d), (e). The Protection of Trading Interests Act 1980 expressly applies also to the 1920 Act (Section 5(1) of the 1980 Act). Section 32 of the 1982 Act (dealing with judgments in breach of arbitration or choice of court agreements) does not expressly do so. However, that section states that a judgment to which it applies shall not be recognised or enforced, and this ought to cover enforcement under the 1920 Act. Even if this is doubted, it is thought that the registration of such a judgment would not be just and convenient. 8 Section 9(2)(d); Owens Bank Ltd v Bracco [1992] 2 AC 443. 9 Section 9(2)(c).
• [2] Section 9(2)(f). 2 Section 9(2)(e). 3 CfTenaga Nasional Bhd v Frazer-Nash Research Ltd [2018] EWHC 2970 (QB); Strategic Technologies Pte Ltd v Procurement Bureau of the Republic of China Ministry of National Defence [2020] EWCA Civ 1604. 4 CPR r. 74.3. 5 Evidence required is specified by CPR r. 74.4. 6 Section 9(4)(a); CPR r. 74.6. No permission is required to serve it out of the jurisdiction: CPR r. 74.6(2). 7 Section 9(4)(b); CPR r. 74.7. 8 Though he may not sue on the original cause of action: Section 34 of the 1982 Act. 9 Unless the court orders otherwise. 10 Section 9(5).