AL NASSER & AL MASRI TRADING COMPANY WLL LIMITED LIABILITY COMPANY v SHAHZAD MUNIR

To set aside a regularly entered default judgment under Civil Procedure Rules 1998, the defendant must show a real, rather than fanciful, prospect of successfully defending the claim. The court must avoid conducting a mini-trial, while considering the evidence presently available and evidence realistically expected at trial.

In enforcing a foreign judgment, errors of fact or law are not generally examinable. The defendant must instead show a real prospect that an established exception, such as fraud or breach of natural justice, applies. Fraud requires a properly supported and sufficiently detailed case. The discretionary power to set aside also requires prompt action, including ensuring that the application has been issued and notifying the claimant.

The claimant sought to enforce in England a judgment of the Abu Dhabi Court of First Instance concerning six dishonoured cheques signed by the defendant on behalf of an Abu Dhabi company. The defendant had not participated in the Abu Dhabi proceedings.

Default judgment for £493,200.48 was entered after the English claim was served and no acknowledgment of service or defence was filed. The defendant applied under Civil Procedure Rules 1998 r 13.3 to set it aside, alleging that the Abu Dhabi judgment had been obtained by fraud and in breach of natural justice, and relying on the delay and difficulties surrounding his attempted filing.

1. The application to set aside the default judgment was dismissed. The defendant had to establish a real, rather than fanciful, prospect of successfully defending the claim under Civil Procedure Rules 1998 r 13.3(1)(a). The court was not to conduct a mini-trial, but had to consider the evidence before it and evidence realistically expected to be available at trial.
2. The Abu Dhabi judgment had no direct force in England but was enforceable by an ordinary claim because the foreign court had jurisdiction, the judgment was for a definite sum, and it was final and conclusive. The judgment could not be impeached for an error of fact or law unless a recognised exception applied.
3. The alleged want of natural justice did not satisfy that threshold. Service had been attempted and notice was subsequently published in a widely circulated local newspaper in Arabic. Following Nunes Dias v Portugal, publication may constitute adequate notification even without actual notice. The defendant showed no real prospect of establishing a flagrant breach of natural justice or article 6 of the European Convention on Human Rights.
4. Fraud could in principle constitute an exception where a party knowingly presented a foreign court with a claim based on security cheques after the underlying obligation had been fulfilled. However, the defendant provided no adequate details of the scaffolding hire, its termination, payment, or requests for return of the cheques. His account was late, inconsistent and unsupported. In light of the requirement for cogent evidence of fraud, the proposed case was fanciful.
5. The discretion to set aside was also refused. Prompt contact with the court was insufficient. The defendant knew there were difficulties with filing and had an onus to ensure that the application had been issued and to notify the claimant. He did neither for about a year. Consequential orders were left for agreement, or further determination if agreement could not be reached.