Good Challenger Navegante S.A. v Metalexportimport S.A.

An acknowledgment under Limitation Act 1980 section 30(1) is signed where the maker’s name or mark is attached in a manner which objectively indicates approval of its contents. A typed name at the foot of a telex may therefore be a signature, even though it is not handwritten.

A foreign judgment creates an issue estoppel only where the relevant issue was fully contested, clearly decided, and necessary to that judgment. A collateral or insufficiently clear alternative observation does not suffice. The court must approach alleged foreign issue estoppels with caution and apply them so as to achieve justice. Leave to enforce after six years remains discretionary, but may be granted where the creditor gives an explanation taking the case outside the ordinary rule.

The owners obtained a London arbitration award in 1983 for demurrage and detention under a voyage charterparty. In January 1993 they obtained without notice leave under section 26 of the Arbitration Act 1950 to enforce it as a judgment, but did not serve the order while pursuing recognition and enforcement proceedings in Romania.

After the Romanian proceedings failed and the stay of the English proceedings was lifted, the charterers sought to set aside the 1993 order or to stay enforcement. The Commercial Court dismissed their applications and permitted enforcement, with interest limited to six years after the 1993 order. The charterers appealed, contending that the claim was time-barred, that a Romanian Supreme Court decision created an issue estoppel, and that the delayed service and enforcement were abusive.

1. Appeal dismissed. Clarke LJ, with Rimer J and Mantell LJ agreeing, upheld the order permitting enforcement of the award as a judgment.

2. The owners’ English claim was not time-barred. For section 30(1) of the Limitation Act 1980, a document is signed when the maker’s name or mark is attached so as objectively to show approval of its contents. The typed name of the charterers’ agent at the foot of the February 1988 telex met that test. It was an effective acknowledgment and, under section 29(5), restarted time. The application under section 26 of the Arbitration Act 1950 was consequently brought in time.

3. The Romanian Supreme Court’s statement that the award was no longer enforceable under English law did not create an issue estoppel. Although a foreign issue decision may be recognised where there has been a full contestation and a clear decision, the determination relied on must have been necessary to the foreign judgment. The Romanian court’s primary ground was that enforcement was prescribed under Romanian law. Its English-law observation gave no reasons for rejecting the acknowledged payments and telexes, and was not shown to be an equal or necessary basis for the result.

4. There was no relitigation or procedural abuse. Applying the broad, merits-based approach in Johnson v Gore Wood & Co [2002] 2 AC 1, the court held that the owners had raised the relevant limitation matters in Romania and had delayed service because of Romanian legal advice. A timely challenge to the 1993 order on limitation grounds would in any event have failed.

5. Permission to enforce after six years was properly granted. The general rule against late execution required the creditor to explain the delay and show unusual circumstances. Continuous Romanian enforcement proceedings until 1998 supplied such an explanation. The subsequent delay did not require refusal, and the judge fairly confined interest to the six years following the 1993 order.

• Court of Appeal (Civil Division): dismissed the charterers’ appeal in [2003] EWCA Civ 1668, upholding permission to enforce the arbitration award as a judgment.
• High Court, Queen’s Bench Division, Commercial Court: on 10 January 2003, Mr Michael Crane QC, sitting as a Deputy High Court Judge, refused the charterers’ applications to set aside or stay enforcement and granted the owners permission to enforce and enter judgment.