The Official Receiver of the Bangkok of Commerce Public Company Limited v Rakesh Saxena & Ors

A foreign judgment is enforceable in England if it is final, conclusive, for a definite sum, and given by a court with jurisdiction, subject to the exclusionary rule for foreign penal, revenue and public laws.

The court must determine for itself whether the right enforced is penal or sovereign in substance. A repayment or restitution order made in criminal proceedings may nevertheless enforce a severable private-law claim for compensation or restitution. The relevant question is the substance of the right sought to be enforced, not the foreign court’s label, the procedural forum, or the fact that a public prosecutor brought the claim. An indirect benefit to the foreign state does not convert a private claim into enforcement of foreign penal law.

The Official Receiver sought recognition and enforcement against Rakesh Saxena of a repayment order made by the South Bangkok Criminal Court in proceedings concerning fraud against the Bangkok Bank of Commerce Public Company Limited. The order required payment of 1.132 billion Thai Baht to the bank. The Thai Court of Appeal and Supreme Court upheld the order.

Mr Saxena argued that the order was penal and therefore fell within the exclusionary rule. The Official Receiver contended that it enforced, in substance, the bank’s private-law right to restitution for loss. The central issue was whether enforcement would involve the execution of Thai penal law or the assertion of Thai sovereign authority.

1. The claim succeeded. Judgment was entered for the Claimant.
2. The ordinary requirements for enforcement of a foreign judgment were satisfied. The Thai judgment was for a definite sum and was final and conclusive. Mr Saxena had submitted to the jurisdiction of the Thai courts by appealing on the merits without reserving his jurisdictional position, applying S.A. Consortium General Textiles v Sun and Sand Agencies Ltd [1978] 1 QB 279, as supported by JSC BTA Bank, BTA Securities JSC v Turkiye Vakiflar Bankasi T.A.O. [2018] EWHC 835 (Comm) and Certain Underwriters at Lloyd's v Syrian Arab Republic [2018] EWHC 385 (Comm).
3. The exclusionary rule required the English court to determine whether the substance of the right was penal, revenue or otherwise sovereign. The court was not bound by the Thai Attorney General’s characterisation, although the foreign courts’ approach deserved serious consideration. The relevant principles were drawn from Huntington v Attrill [1893] A.C. 150, United States of America v Inkley [1989] QB 255, Attorney General of New Zealand v Ortiz [1984] AC 1, Mbasogo v Logo Ltd [2006] EWCA Civ 1370 and Iran v Barakat [2007] EWCA Civ 1374.
4. The repayment order was, in substance, a private-law claim for pecuniary loss belonging to the bank. Thai law treated the civil restitution element as distinct from the criminal judgment, and the claim could have been brought separately in the civil courts. The fact that the Public Prosecutor brought it on behalf of the victim, and that the proceedings occurred before a criminal court, was not decisive.
5. Raulin v Fischer [1911] 2 KB 93 and SEC v Manterfield [2009] EWCA Civ 27 supported examining and enforcing the particular part of a composite judgment sought to be enforced. The indirect possibility that Thai state creditors would benefit from recoveries did not alter the substance of the right or amount to enforcement of a sovereign right.

First-instance decision. The judgment records that the Thai Court of Appeal and Thai Supreme Court had previously upheld the underlying Thai judgment.