Siddik Mohammad v Mohammad Hilal Salim Bin Tarraf & Ors

Under the Foreign Judgments (Reciprocal Enforcement) Act 1933, the jurisdictional grounds for registering a foreign judgment in personam are exhaustive. A judgment founded only on a foreign forum-of-necessity doctrine cannot be registered unless it satisfies one of the statutory criteria.

The separate requirement of notice concerns actual notice, not merely valid service. Registration must be set aside where the judgment debtor did not receive notice in sufficient time to defend and did not appear. A substantial breach of the duty of full and frank disclosure on a without-notice registration application ordinarily justifies setting the order aside, even if the order might otherwise have been made.

The claimant obtained a Canadian default judgment against the first defendant in the Ontario Superior Court of Justice. The judgment was registered in England under section 2(1) of the Foreign Judgments (Reciprocal Enforcement) Act 1933.

The first defendant applied under section 4 of the Act to set aside the Registration Order. He argued that the Ontario court lacked jurisdiction under the statutory criteria, that he had not received notice in sufficient time to defend, and that the claimant had failed to make full and frank disclosure when seeking registration without notice.

The claimant relied on Articles 6 and 1 of the First Protocol to the European Convention on Human Rights, arguing that refusal of registration would deny effective access to justice.

1. Registration set aside against the first defendant. The Ontario judgment was an action in personam. Section 4(2)(a) of the Foreign Judgments (Reciprocal Enforcement) Act 1933 provided an exhaustive definition of the jurisdictional prerequisites for registration. None of its five criteria was satisfied. The forum-of-necessity basis relied upon by the Ontario court was not recognised by English law for the purposes of section 4(2)(c) (paras [10]-[18]).
2. Section 4(1)(a)(iii) concerned actual notice, and was not equivalent to lawful service. The first defendant had not received actual notice of the Ontario proceedings in sufficient time to defend them and had not appeared. This independently required the Registration Order to be set aside (paras [19]-[24], [39]).
3. The question of service was one of Ontario law, proved as a matter of fact by expert evidence. The proceedings had not been validly served under the Ontario Rules of Civil Procedure. The first defendant’s lack of connection with the premises where documents were left, and the absence of the required permission or procedural basis for service outside Ontario, supported that conclusion (paras [27]-[38]).
4. The without-notice application for registration engaged a duty of full and frank disclosure. The claimant had failed to disclose material matters concerning the Ontario court’s jurisdiction, the reasons for the default judgment, and the serious grounds disputing service. This was a substantial breach of CPR 74.4 and justified setting aside the Registration Order. The sanction applies even where full disclosure would not necessarily have altered the original order (paras [40]-[51]).
5. It was unnecessary and inappropriate to determine whether the statutory jurisdictional criteria were incompatible with Article 6 or A1P1. The absence of notice and opportunity to participate provided an independent and Convention-compatible basis for refusing registration (paras [52]-[64]).
6. The order was not set aside in respect of the second and third defendants, who had made no application and were not represented. The relief was therefore confined to the first defendant (paras [65]-[66]).

First-instance decision. The judgment itself does not state any appeal from an earlier decision in the present English proceedings.