Citibank N.A. v Rafidian Bank & Anor

The court may extend the time for appealing registration of a foreign judgment under Brussels Convention 1982 art 36 and CPR Part 74, even after expiry of the prescribed period, unless the applicable rules expressly exclude that power. The discretion must be exercised consistently with the overriding objective and the factors governing relief from sanctions. Article 6 protects both the judgment debtor’s reasonable opportunity to present its case and the creditor’s right to determination within a reasonable time. Lack of funds will affect fairness only in exceptional cases. Delay, an inadequate explanation, intentional non-compliance, and the need for finality may justify refusal, even where the proposed appeal may have a realistic prospect of success.

Citibank obtained registration in England of a judgment of the President of the District Court in Amsterdam dated 27 September 2000 for approximately US$11.4 million against Rafidian Bank and Rasheed Bank. Master Leslie ordered registration on 1 May 2001. Rasheed, an Iraqi state-owned bank, applied in June 2003 for an extension of time to appeal, relying on sanctions, lack of legal funding, and alleged breaches of article 6 of the European Convention on Human Rights in the Dutch proceedings and the English enforcement proceedings.

The application was made after the two-month period had expired. The issues were whether the court had jurisdiction to extend time and, if so, whether the discretion should be exercised in Rasheed’s favour.

The application was refused in the exercise of the court’s discretion.

1. Jurisdiction. Article 36 of the Brussels Convention 1982 permitted an extension of time, provided that the extension was not granted on account of distance. CPR Part 74.8 did not exclude the general power in CPR 3.1(2)(a). The court therefore had jurisdiction to extend time after the period for compliance had expired: [23].
2. Article 6. Article 6 applied both to the Dutch proceedings and to the English enforcement proceedings. It required Rasheed to have a reasonable opportunity to present its case without substantial disadvantage, but also protected Citibank’s right to a determination within a reasonable time. The two-month time limit was not itself unfair: [44], [47].
3. Prospects and fairness. The court assumed, without deciding, that the proposed appeal might have a realistic prospect of success under articles 37.1 or 37.2. However, the evidence did not establish an exceptional denial of fair trial rights. Rasheed had made no adequate attempt to obtain release of funds for legal fees, and the evidence suggested that non-frozen funds were available. The proposed public-policy challenge was therefore weak: [45]-[48].
4. Discretion. Applying the relief-from-sanctions considerations in CPR 3.9, the application was plainly not prompt. There was no adequate explanation for the delay, and the court inferred that the decisions not to defend the Dutch proceedings and not to file a timely appellant’s notice had been intentional: [49]-[54].
5. The potential prejudice to Rasheed did not outweigh the need for finality in litigation. The fact that extending time might cause Citibank little additional inconvenience was insufficient. In all the circumstances, relief was refused: [55]-[58].

The judgment records that Master Leslie ordered registration of the Amsterdam judgment on 1 May 2001. A single judge refused Rasheed’s paper application on 4 July 2003 on jurisdictional grounds. Following an oral hearing, this court held that jurisdiction existed but refused the extension in the exercise of its discretion.