AHMED v. HABIB BANK LTD. [2001] EWCA Civ 1270

For registration under the Foreign Judgments (Reciprocal Enforcement) Act 1933, the relevant question is the identity of the court which issued the foreign judgment, not the particular jurisdiction or capacity in which that court acted. A limited inquiry, including expert evidence of foreign law, is permissible where the judgment itself raises a genuine question about the issuing court.

Fraud must be proved to a high degree of probability. Where a first-instance judge rejects a fraud allegation without adequately explaining why corroborated evidence was not accepted, the appropriate appellate course may be a new trial rather than substitution of a finding of fraud. A judgment concerning different guarantees may be registered in part under section 2(5).

Habib Bank obtained a judgment in Pakistan against Mr Ahmed on guarantees relating to the liabilities of companies in the Firdous group. The judgment was headed as a decree of the High Court of Sindh and was registered in England under the Foreign Judgments (Reciprocal Enforcement) Act 1933.

Mr Ahmed applied to set aside registration, arguing that the Pakistani judgment was actually a judgment of a Banking Court, which was not a recognised court, and that it had been obtained by fraud. Carnwath J rejected both grounds. The appeal concerned the proper identification of the issuing court, the adequacy of the reasoning on the fraud issue concerning the 1991 guarantees, and whether partial registration was available for the uncontested 1990 guarantee.

1. Recognised court. The appeal failed on the recognised-court ground. Under section 4(1)(a)(i) of the Foreign Judgments (Reciprocal Enforcement) Act 1933, the registering court must be satisfied that the judgment is one to which the Act applies. That requires consideration of the identity of the court which issued it. It does not require determining the nature of the jurisdiction exercised by that court or the capacity in which it acted.

2. The English court was entitled to admit relevant expert evidence of Pakistani law where the judgment described the proceedings as brought under the Banking Tribunals Ordinance 1984. That was a limited inquiry to establish whether the judgment was issued by the High Court of Sindh or by another tribunal. The Pakistani authorities concerning domestic appeals and the fictional character of the High Court when exercising banking jurisdiction did not determine the distinct issue under the 1933 Act. The judgment remained, on the evidence, a judgment of the High Court of Sindh.

3. Fraud. The fraud ground succeeded in relation to the 1991 guarantees. Mr Ahmed bore the burden of proving fraud to a high degree of probability. He had to establish both that the documents were completed contrary to his intentions and that the persons completing or relying on them for the Bank acted dishonestly or recklessly. The Court of Appeal did not substitute its own finding of fraud, particularly where the judge had expressly rejected that allegation.

4. However, applying the approach in Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377, the judge had been required to give fuller reasons for rejecting evidence apparently corroborated by documents and left unanswered by oral evidence from the Bank. The fraud issue concerning the 1991 guarantees was therefore ordered to be retried.

5. Partial registration. Section 2(5) of the 1933 Act permitted registration in respect of different matters where some could properly have been registered as separate judgments. The three guarantees constituted different matters. The registration could therefore be maintained, or a fresh application made, in respect of the 1990 guarantee notwithstanding the retrial concerning the 1991 guarantees.

Appeal allowed in part. New trial limited to the fraud issue concerning the 1991 guarantees.

• Court of Appeal (Civil Division): appeal allowed in part. The recognised-court finding was upheld; the fraud issue concerning the 1991 guarantees was remitted for a new trial.
• Queen's Bench Division: Carnwath J dismissed the application to set aside registration on both the recognised-court and fraud grounds.