ED & F Man Sugar Ltd v Lendoudis

A claimant cannot use an amendment to introduce a new cause of action, or a new legal basis for service out of the jurisdiction, where the original claim and supporting evidence presented a different case. The procedural safeguards governing service out remain applicable under the CPR. The court should not relax them merely because refusal of amendment may make a fresh claim time-barred.

An action on a foreign judgment requires a judgment for a definite sum and one that is final and conclusive. Where the foreign order merely gives effect to an arbitral award, and the evidence leaves both its legal character and limitation position uncertain, summary judgment should not be granted.

The claimant sought to enforce London arbitration awards and, alternatively, Greek judgments recognising and declaring those awards executable. An order made without the defendant’s opposition granted permission to enforce the awards, entered judgment for the award sum and registered the Greek first-instance judgment.

Both parties applied to set aside that order. The claimant sought to amend its claim to plead an action at common law on the Greek judgment. The issues were whether that amendment would circumvent the procedure governing service out of the jurisdiction, whether the proposed judgment claim was time-barred, and whether the Greek judgment was a final and conclusive money judgment suitable for summary enforcement.

1. Applications and amendment. The claimant’s original claim relied on section 26 of the Arbitration Act 1950, the Judgments Regulation and the Brussels Convention. It did not disclose an action at common law on the Greek judgment. The proposed amendment would introduce a new cause of action and a new basis for service out.
2. The principles in Metall und Rohstoff A.G. v Donaldson Lufkin & Jenrette Inc [1990] 1 Q.B. 391, confirmed in Grupo Torras S.A. v Al-Sabah [1995] 1 Lloyd’s Rep 374 and ABCI v BFT [2003] 2 Lloyd’s Rep 145, continued to apply under the CPR. The court must prevent a claimant from circumventing the requirement that the court and defendant are properly apprised of the legal basis for service out. Permission to amend and retrospective permission to serve were therefore refused, despite CPR 17.4(2) being satisfied.
3. The limitation consequences did not justify a different result. The court should not abandon the procedural principle merely because a fresh enforcement action might be time-barred.
4. Summary judgment. A foreign judgment must be for a definite monetary sum and final and conclusive. The Greek judgment, on its face, recognised and declared the awards executable. The conflicting Greek-law evidence did not establish whether it was itself a money judgment or an exequatur-like order leaving the award as the executable title. The uncertain position concerning the Greek detention judgment and the commencement of limitation also meant that summary judgment could not properly be entered.
5. The court rejected the submission that enforcement of a judgment giving effect to an award necessarily contravened the Limitation Act 1980. E.D. & F. Man (Sugar) Ltd v Harayato (17 July 1996, LTA 95/7245/B; Times Law Reports, 9 August 1996) established that suing on a judgment was, at least for the first time, a matter of right within the statutory limitation period.
6. The order of Steel J was set aside.