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

A foreign judgment may create an issue estoppel in English proceedings, but only where the foreign court gave a final decision after a full contestation on the same issue, and that determination was fundamental or essential to its judgment. An alternative or unnecessary finding will not ordinarily found an estoppel.

For limitation purposes, a payment made at the creditor’s request to a third-party creditor may constitute part payment. A telex may be a signed acknowledgment where the typed name of the sender objectively indicates approval of its contents.

Delay in serving an ex parte enforcement order is not necessarily an abuse of process. Permission to execute after six years may be granted where the judgment creditor gives an explanation taking the case outside the ordinary, including continuous enforcement activity abroad.

The claimant obtained a London arbitration award in 1983 for demurrage and detention damages. In 1993 Saville J made an ex parte order under section 26 of the Arbitration Act 1950, permitting enforcement as a judgment. The order was not served while related recognition and enforcement proceedings continued in Romania.

The Romanian Supreme Court ultimately refused enforcement in 1998, finding that enforcement was barred under Romanian law and that the award was no longer executory in England because six years had elapsed. The claimant later served the English order. The defendant sought to set it aside, relying on limitation and abuse of process. The claimant sought permission to enforce and to enter judgment.

1. Estoppel. The Romanian Supreme Court’s judgment was final, involved the same parties and included a decision on the merits of the English limitation issue. However, the Romanian court’s finding under article 174(a) of Law No. 105/1992 was additional to its primary finding under article 174(b), which independently disposed of the Romanian proceedings. It was therefore not fundamental or essential to the judgment and could not create an issue estoppel. The causes of action in Romania and England were also different, so there was no cause of action estoppel. The claimant had raised the limitation point in Romania; accordingly, Henderson v Henderson did not apply.
2. Limitation. An application under section 26 of the Arbitration Act 1950 was an action to enforce an award for limitation purposes. The January 1986 payment was made at the claimant’s request and for its benefit, although paid to a third-party creditor, and restarted limitation under section 29(5) of the Limitation Act 1980. The 17 February 1988 telex clearly acknowledged the outstanding liability. Its typed sender’s name constituted a signature under section 30. The enforcement application was therefore not time-barred in January 1993.
3. Abuse of process and execution. The eight-year delay in serving the ex parte order did not amount to abuse. The claimant had withheld service on legal advice while pursuing lengthy Romanian proceedings, and the order prevented enforcement before service. Permission to enforce after six years was appropriate because the claimant had continuously pursued enforcement abroad and had not simply abandoned the debt. The defendant’s application to set aside was dismissed, and the claimant was permitted to enforce the award as a judgment. Permission to enter judgment was deferred pending argument on recoverable interest.