Premium Contractor Solution LLC v Ying Kang

A foreign judgment has no direct operation in England. It may be enforced only where the foreign court had jurisdiction under English conflict-of-laws principles and the other requirements for recognition are met. Where a defendant was neither present in nor submitted to the foreign jurisdiction, the judgment is a nullity for these purposes. A claimant cannot avoid that rule by presenting an enforcement claim as a free-standing debt claim while relying on the foreign judgment as evidence. An English default judgment founded on the unenforceable judgment cannot stand, operate as res judicata, or be used as evidence, and amendment cannot rescue it. Promptness under CPR 13.3 is fact-sensitive, and serious delay may be understandable where proceedings were not received.

Premium obtained an English default judgment against Ms Kang for £2,156,000.32, based on a default judgment entered by the US District Court for the Southern District of Ohio for US$2,633,262.25. Premium then obtained charging orders over Ms Kang’s Bristol property and sought an order for sale.

Ms Kang applied to set aside the English judgment, obtain summary judgment, or strike out the claim. She said that she had not been present in the United States, had not submitted to the Ohio jurisdiction, and had not received the proceedings while living in China. The issues were whether the Ohio judgment could be enforced in England, whether Premium could characterise its claim as one for the underlying debt, and whether Ms Kang had acted promptly enough under CPR 13.3.

The application was allowed. The English default judgment was set aside and judgment was entered for Ms Kang on her application for reverse summary judgment.

1. Foreign judgment. Under Dicey Rules 45 and 46, a foreign judgment has no direct operation in England. Enforcement requires a final and conclusive judgment, jurisdiction according to English conflict-of-laws principles, and a fixed monetary sum. The Ohio judgment satisfied the finality and fixed-sum requirements, but the jurisdictional requirement was not met.
2. Foreign jurisdiction. The judge applied the principle stated in Sirdar Gurdyal Singh v Rajah of Faridkote [1894] AC 670, and the physical-presence principle in Adams v Cape Industries Plc [1990] Ch 433, as summarised in Swiss Life AG v Kraus (aka Moses Krausz) [2015] EWHC 2133 (QB). In the absence of submission, Ms Kang’s lack of presence in Ohio meant that the judgment was unenforceable in England.
3. Character of the claim. The claim form and Particulars of Claim showed that Premium was seeking to enforce the Ohio judgment. It could not be recharacterised as a free-standing claim for the debt merely because the judgment was said to be evidence of the amount owed.
4. Consequences. The Ohio judgment was a nullity in English law. The English default judgment therefore had no effect: it could not be enforced, operate as res judicata, or stand as evidence. Amendment could not rescue the claim. Attempting to enforce the unenforceable was an abuse of process; Premium would have to litigate the underlying cause of action if it wished to continue.
5. Delay. The application was not prompt and the delay was a serious breach for the purposes of the Denton v TH White Ltd [2014] EWCA Civ 906 analysis. However, the court found the explanation understandable in light of Ms Kang’s absence, the apparent non-receipt of the proceedings, and uncertainty about service. The fact-sensitive approach in Standard Bank plc v Agrinvest International Inc [2010] EWCA Civ 1400, Evans v Bartlam [1937] A.C. 473, and Barons Bridging Finance Plc v Nnadiekwe [2012] EWHC 2817 (Comm) was applied. Fathi v Mohamed [2021] EWHC 2231 (Comm) was distinguished because it concerned a different residential and business-address context. In any event, the nullity of the underlying judgment independently required the English judgment to be set aside.