Berhad v Frazer-Nash Research Ltd & Anor

Registration of a foreign judgment under Administration of Justice Act 1920, section 9, remains discretionary after the statutory bars have been considered. An appeal is not pending merely because an application for permission, or an extension of time to seek permission, is awaiting determination. A judgment debtor is not entitled to appeal where permission is still required. Delay alone does not amount to abuse of process. Comity generally favours enforcement of an otherwise registrable foreign judgment, but enforcement may be stayed while a possible foreign appeal is determined.

Judgments of the High Court of Malaya entered in 2008 were registered in England under section 9 of the Administration of Justice Act 1920. The respondents applied to set aside registration, relying on an intended appeal to the Federal Court of Malaysia, alleged abuse arising from the applicant’s delay, and non-compliance with CPR rule 74.4.

The Malaysian Court of Appeal had declared in 2017 that the judgments remained enforceable. The issues were whether section 9(2)(e) barred registration, whether the delay justified strike-out or refusal of registration, whether rule 74.4 had been complied with, and whether enforcement was just and convenient.

1. Application dismissed. The registration order was not set aside. Enforcement was stayed pending determination of the respondents’ applications to the Malaysian Federal Court and, if permission to appeal out of time were granted, pending that appeal.
2. Section 9(2)(e) was not engaged. The relevant judgment was the 2008 Malaysian judgments sought to be registered, not the 2017 declaration concerning their enforceability. In any event, an appeal is not pending while only applications for an extension of time and permission to appeal await decision. A judgment debtor requiring permission to appeal has no entitlement to appeal until permission is granted.
3. Applications under CPR rule 23.10 and rule 74.7 are not “second bite” applications governed by the restrictions identified in Tibbles v SIG plc [2012] EWCA Civ 518. The respondents could present their evidence and arguments for the first time at the set-aside hearing, and the discretion under section 9(1) was exercised afresh.
4. Although the applicant had caused some inordinate and inexcusable delay, delay alone was insufficient to establish abuse. The court considered the history as a whole, including the settlement negotiations, the respondents’ requests for forbearance, the absence of demonstrated prejudice, and the Malaysian Court of Appeal’s declaration that the judgments remained enforceable.
5. Rule 74.4(1) required the judgments sought to be registered, with authenticated copies and translations where necessary. The 2008 default judgments had been supplied in Malay and certified English translations. There was no obligation to exhibit the later Malaysian appellate judgment.
6. It was just and convenient to permit registration. Comity favoured enforcement, and the proposed Malaysian appeal did not justify setting aside registration, although a stay was appropriate because the Federal Court might entertain it.

The judgment records that the Malaysian judgments were registered in England by an order of His Honour Judge Graham Wood QC dated 25 April 2018. The respondents applied to set that order aside. The application was dismissed by the High Court, subject to a stay of enforcement.