Xiong Wei & Anor v Wang Jinhong

Permission to serve proceedings out of the jurisdiction requires a gateway, a claim with reasonable prospects of success, and England as the proper forum. A common-law claim to enforce a foreign judgment falls within the relevant gateway without proof that the judgment debtor has English assets. A foreign judgment may remain final and conclusive despite a pending appeal, review, or possible retrial, unless the foreign court has actually ordered a retrial or otherwise altered its legal effect. Termination of enforcement procedures abroad for lack of assets does not necessarily destroy the judgment’s enforceability. Where enforcement is sought against assets in England, England is ordinarily the proper forum. Issues concerning the foreign judgment’s ultimate enforceability are generally matters for determination on the substance of the claim, rather than reasons to prevent the claim proceeding.

The claimants sought to enforce in England a Chinese money judgment for approximately US$2.129 million and interest. Dias J granted permission to serve the claim form and proceedings out of the jurisdiction, including by email to the defendant’s solicitor. The defendant applied to set aside that order under Civil Procedure Rules 1998, rule 11.1(4), contending that the Chinese judgment was not final and conclusive and that China was the appropriate forum.

The Chinese judgment had been appealed unsuccessfully and a retrial petition had been dismissed. Enforcement proceedings in China had later been terminated for lack of enforceable assets, while a Procuratorate review remained possible. The central issues were whether the enforcement claim had reasonable prospects of success and whether England was the proper forum.

1. Application dismissed. The challenge to Dias J’s order was dismissed.
2. Permission to serve out requires three elements: an available jurisdictional gateway, reasonable prospects of success, and England being the proper forum. The reasonable-prospects test is equivalent to there being a serious issue to be tried. The claim must carry some degree of conviction and be more than barely capable of serious argument, but need not have a greater than 50 per cent chance of success.
3. Under paragraph 3.1(10) of Practice Direction 6B, a claim to enforce a foreign judgment at common law falls within the gateway without proof that the defendant has assets in England. In any event, the evidence showed that the defendant had English assets.
4. The Chinese judgment remained final and conclusive. A pending or possible foreign review does not itself remove finality. The judgment remained effective unless and until a retrial was ordered and the original judgment was revoked or otherwise displaced. Termination of Chinese enforcement proceedings for lack of assets affected the enforcement procedures, not the continuing enforceable obligation or the judgment’s finality.
5. The relevant assessment was made when Dias J granted permission. At that time no Procuratorate complaint had been lodged. The particulars of claim also expressly averred finality and conclusiveness, and the defendant had not shown that averment to be demonstrably untrue or unsupportable.
6. England was the proper forum for enforcement against English assets. Existing worldwide proprietary and freezing injunctions created no priority or security interest and could be addressed by later application. The fact that the underlying litigation and foreign-law issues arose in China did not make China the appropriate forum for enforcement in England.

The judgment concerned a substantive application to set aside an order made by Dias J on 19 June 2024 granting permission for service out of the jurisdiction. Following a consent order approved by Henshaw J, the application proceeded under CPR 11.1(4). The High Court dismissed the challenge.