Conflict of laws

Registration of foreign judgment - allegation that judgment obtained by fraud - no grounds to set aside registrationHabib Bank Ltd v Ahmed: QBD (Carnwath J): 12 October 2000In April 1999 the High Court of Sind, Pakistan gave judgment for the claimant bank against the defendant in the sum of Rs 451,113,547 (approximately 5.7m.) together with interest and costs in respect of sums owed by the defendant under personal guarantees he had entered into with the bank in 1990-91 in order to secure the refinancing of his family's textiles business.

In September 1999 the bank registered that judgment in England pursuant to the provisions of the Foreign Judgments (Reciprocal Enforcement) Act 1933.

The defendant applied to have the registration set aside, contending that the judgment had been procured by fraud on the part of the bank, and/or that it was contrary to public policy to recognise the judgment because it had been given in the absence of the defendant and without his knowledge, also that following a military coup in October 1999 the defendant no longer had any effective right of appeal in the courts of Pakistan from the earlier decision.

Alistair MacGregor QC and James Turner (instructed by Lane & Partners) for the claimant.

Richard Salter QC and Catherine Gibaud (instructed by Irwin Mitchell, Leeds) for the defendant.

Held, dismissing the application, that in the context of the application, fraud included every kind of mala fides and/or mala praxis whereby one of the parties sought to mislead or deceive a judicial tribunal; that since it was commonplace in Pakistan at the material time for control and guarantee documents to be signed by the borrower in blank and filled out by the lender at a later date, the court had to be satisfied to a high degree of probability that (a) the guarantee and control documents were filled in by the bank contrary to the intentions of the defendant, and (b) that those filing in the documents and/or subsequently relying on them on behalf of the bank did so dishonestly or recklessly; that while there were discrepancies between some of the documents, in particular in relation to some of the dates inserted therein, the substance of the agreement between the defendant and the bank appeared to have been fulfilled; that it was entirely the defendant's own fault that judgment was given in his absence and without his knowledge since he had made no effort to enquire as to the state of the case since leaving Pakistan; that expert evidence alleging that the defendant had no effective right of appeal in Pakistan since the military coup had no bearing on the circumstances in which the judgment had been given; that the court could not accept such evidence without giving the Foreign Office the chance to be heard; and that in the premises the application ought to be dismissed.