England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD (Commercial Court)
(Tomlinson J.)

		Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 7th August 2001

LORD JUSTICE MANCE:

This is the judgment of the court.

Introduction

1. This is an appeal, with Tomlinson J's permission, from his judgment dated 23^rd January 2001 and order dated 2^nd February 2001 refusing to make absolute a garnishee order dated 4^th April 2000 and setting it aside subject to a stay pending the present appeal. The parties are a judgment creditor, Societe Eram Shipping Company Limited ("Eram") and the garnishee, The Hong Kong and Shanghai Banking Corporation ("HSBC"), incorporated in Hong Kong with branches in England. The judgment debtors are Societe Oceanlink Limited and Yoon Sei Wha, a company and individual resident in Hong Kong. The garnishee order relates to the credit balance on a bank account (No. 002.66.372.64) held by one or both of the judgment debtors with HSBC at its Queens Road, Central, Hong Kong branch.
2. The garnishee bank's objection to the order being made absolute was, shortly stated, that (a) the debt garnisheed (the credit balance) is sited in, and subject to the law of, Hong Kong, (b) the Hong Kong courts will not give effect to an English garnishee order by reciprocal enforcement or by making a Hong Kong court order based on the English court order and (c) there was or would be a real risk of HSBC being liable twice.
3. The judgment debt relates, we are told, to demurrage. Eram sued the judgment debtors and obtained judgment in the Tribunal de Commerce of Brest, France on 11^th July 1997. The judgment was by order dated 5^th November 1998 registered in England under s.4 of the Civil Jurisdiction and Judgments Act 1982, which gives effect to the Brussels Convention of 1968 and associated protocols and conventions. The order gave the judgment debtors liberty to appeal against the registration within two months after service of notice thereof upon them, and stayed execution in the meanwhile. Notice of the registration was given to the judgment debtors by letters dated 25^th January 2000. No appeal against registration was made within two months. Registration having thus been validly effected, little if any significance can attach to the origin of the present English judgment in a French judgment. It was a main object of the Brussels Convention "to facilitate the free movement of judgments" (cf e.g. Société d'Informatique Service Réalisation Organisation v. Ampersand Software B.V. [1995] A.E.R. (E.C.) 783, paras. 30-31 and 39) and to create in that respect a single European legal space.
4. After registration, application was made, supported by witness statement dated 3^rd April 2000, for a garnishee order to show cause. Such an order was made by Master Trench on 4^th April 2000, directed to HSBC at its Lower Thames Street, London branch as well as to the judgment debtors. The return date for determination whether it should be made absolute was fixed for 28^th April 2000 before Master Prebble, but the application came ultimately before Tomlinson J. in the Commercial Court, leading to his judgment dated 23^rd January 2001, against which the present appeal is brought. Only HSBC appeared on the application.
5. Tomlinson J. had before him a witness statement from Mr Bassu of HSBC's English solicitors, Stephenson Harwood. Mr Bassu submitted that

"there is a real risk that the effect of the attachment of any debt owed by HSBC to the Judgment Debtors will not relieve HSBC from any liability it may have to the Judgment Debtors pursuant to any account. HSBC therefore has a real risk of being liable twice".

6. In support, he produced a letter dated 27^th April 2000 from Mr Martin Reed, a partner in Stephenson Harwood & Lo, an associated firm. This was the only positive evidence of Hong Kong law adduced on either side before Tomlinson J. Mr Reed is a solicitor (we understand, an English solicitor) practising in Hong Kong. He records that he was asked to advise

"whether there is a real risk that the Garnishee will not be relieved from its liability to the Judgment Debtors by the attachment of the debt owed by the Garnishee to the Judgment Debtors and what proceedings the Judgment Creditor could start in Hong Kong to recover the judgment debt".

7. On the assumption that HSBC's obligations in respect of the account were governed by Hong Kong law, as well as sited in Hong Kong, Mr Reed advised that:

"(a) the Garnishee has a contractual obligation, governed by Hong Kong law, to pay the amount of any credit balance on such account to the account holders according to the terms applicable to such account; and

(b) because an order of an English court has no automatic effect under Hong Kong law, such payment obligation cannot be affected by any such English court order, unless such order becomes enforceable under Hong Kong law because of (1) the operation of reciprocal procedures or (2) the making of a Hong Kong court order based on the English court order. In our opinion, a garnishee made by a foreign court is not a type of order which would be given effect to by the Hong Kong courts under such procedures.

Accordingly, in the absence of the Judgment Creditor's English or French related court orders being given effect under Hong Kong law, the Garnishee would be in breach of contract, and there is a real risk of a debt claim by the account holder for the amount of any credit balance on the relevant account (or possibly a damages claim for at least such amount) if the Garnishee were either to freeze such balance or to pay such balance to the Judgment Creditor in purported reliance on such English or French court orders".

8. Mr Reed went on to point out that, since 1^st July 1997, no arrangement for reciprocal enforcement of English judgments has been in force in Hong Kong – the only procedure now available there in respect of an English judgment being to commence proceedings upon it at common law. Alternatively, proceedings could be taken to register the French judgment under the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap. 319). Thereafter, in each case a garnishee order could be sought from the Hong Kong courts against any balance remaining on the judgment debtors' HSBC account.
9. In response to the issues thus raised by HSBC, Mr Matthison of the judgment creditors' solicitors, Penningtons, produced HSBC's standard terms applicable to the judgment debtors' account, and said in a witness statement dated 7^th July 2000:

"(a) In English law, the payment of the debt by the bank will give the bank a [sic] implied contractural [sic] or restitutionary right to recover the sum paid from the Judgment Debtor;

(b) It is also a demand for payment by the Judgment Debtor, compliance with which even in the absence of an account in this country, entitles the bank to reimbursement;

(c) There is therefore an English law liability created in favour of the bank against the Judgment Debtor;

(d) This debt the bank is entitled to set against the credit balance pursuant to clause 1(I) of the terms and conditions ….."

10. No additional evidence of Hong Kong law was put in by either side in the ensuing period of five or so months before the matter was argued in front of Tomlinson J. We were informed that HSBC had not sought any further advice about Hong Kong law. Eram's case is that English law applies to determine whether HSBC would acquire any such restitutionary right.
11. The bank's standard terms and conditions, to which Mr Matthison's statement refers, provided amongst other things:

"1. GENERAL (applicable to all accounts)

i. The account holder agrees that the Institution's indebtedness to the account holder shall not exceed the net amount owing by the Institution to the account holder after deducting from any credit balance held by the Institution or providing for the aggregate of all the account holder's liabilities ….. whether such liabilities be actual, present, future, deferred, contingent, primary, collateral, several, joint or otherwise (together the "account holder's aggregate liabilities"). Without prejudice to the generality of the foregoing and in addition to any general lien, right of set-off or other right by way of security which the Institution may have on any account whatsoever, the account holder agrees that the Institution shall have the right, at its sole and absolute discretion and without notice to the account holder. to refuse to repay when demanded or when the same falls due any of the Institution's indebtedness to the account holder if and to the extent that the account holder's aggregate liabilities at the relevant time are equal to or exceed the Institution's indebtedness at that time. …"

12. HSBC has subsequently produced its special Assetvantage/Powervantage terms, which also applied to the account and which contain a corresponding provision and further expressly applied Hong Kong law to the account.

Garnishee relief

13. The garnishee procedure goes back to the Common Law Procedure Act 1854. It was incorporated into the Rules of Court by the Supreme Court of Judicature Act (1873) Amendment Act of 1875, and in 1967 it achieved its present place and wording in RSC O.49, which became part of Schedule 1 to the CPR by virtue of CPR 50.1. RSC O.49 provides:

"1.-(1) Where a person (in this order referred to as "the judgment creditor") has obtained a judgment or order for the payment by some other person (in this order referred to as "the judgment debtor") of a sum of money amounting in value to at least £50, not being a judgment or order for the payment of money into court, and any other person within the jurisdiction (in this order referred to as "the garnishee") is indebted to the judgment debtor, the court may, subject to the provisions of this order and of any enactment, order the garnishee to pay the judgment creditor the amount of any debt due or accruing due to the judgment debtor from the garnishee, or so much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings.

(2) An order under this rule shall in the first instance be an order to show cause, specifying the time and place for further consideration of the matter, and in the meantime attaching such debt as is mentioned in paragraph (1) or so much thereof as may be specified in the order, to answer the judgment or order mentioned in that paragraph and the costs of the garnishee proceedings.

…..

3.- (1) Unless the court otherwise directs, an order under rule 1 to show cause must be served –

(a) on the garnishee personally, at least 15 days before the time appointed thereby for the further consideration of the matter; and

(b) on the judgment debtor, at least 7 days after the order has been served on the garnishee and at least 7 days before the time appointed by the order for the further consideration of the matter.

(2) Such an order shall bind in the hands of the garnishee as from the service of the order on him any debt specified in the order or so much thereof as may be so specified.

…..

8. Any payment made by a garnishee in compliance with an order absolute under this order, and any execution levied against him in pursuance of such an order, shall be a valid discharge of his liability to the judgment debtor to the extent of the amount paid or levied notwithstanding that the garnishee proceedings are subsequently set aside or the judgment or order from which they arose reversed."

14. The express wording of RSC O.49 requires that the garnishee be "within the jurisdiction". It is not disputed that HSBC is within the jurisdiction. It is a foreign company carrying on business here, and has duly provided details of persons authorised to accept service of proceedings on its behalf in this jurisdiction. Under the previous rules, it was once considered that not only the garnishee, but also the debt garnisheed must be within the jurisdiction: see Richardson v. Richardson [1927] P.228, where at p.235 Hill J. held:

"The Order deals with the case where "any person is indebted to the judgment debtor and is within the jurisdiction". But both in principle and upon authority, that means indebted within the jurisdiction and is within the jurisdiction". The debt must be properly recoverable within the jurisdiction. In principle, attachment of debts is a form of execution, and the general power of execution extends only to property within the jurisdiction of the Court which orders it. A debt is not property within the jurisdiction if it cannot be recovered here."

15. Hill J's decision on this point has not been accepted as correct. In S.C.F. Finance Co. Ltd. v. Masri [1987] 1 QB 1028, 1043H-1044C, Ralph Gibson LJ giving the judgment of the court saw no reason to read into the language of RSC O.49 words to the effect that the garnishee must be indebted within the jurisdiction, although the court went on to "accept that in a case where the garnishee is not "indebted within the jurisdiction" this may be relevant to the exercise of the court's discretion". Ralph Gibson LJ cited in this regard Scrutton LJ's explanation in Swiss Bank Corp. v. Böhmische Industrial Bank [1923] 1 KB 637, 680-1 of the earlier Court of Appeal decision in Martin v. Nadel [1906] 2 KB 26 as a

"decision …. that the court will not make absolute a garnishee order where it will not operate to discharge the garnishee in whole or pro tanto from the debt; it will not expose him to the risk of having to pay the debt or part of it twice over. That is well established as a principle of discretion on which the court acts."

16. In the event, the court held, on the facts in the S.C.F case, that the debt there garnisheed was properly recoverable in England and capable of being discharged under English law.
17. In Deutsche Schachtbau- und Tiefbohrgesesellschaft m.b.H. v. Shell International Petroleum Co. Ltd. [1990] 1 AC 295, Sir John Donaldson MR, giving the one full judgment in the Court of Appeal, accepted that the only jurisdictional requirements for garnishee relief are that the garnishee should be "within the jurisdiction" and that the subject matter should be a "debt due or accruing due to the judgment debtor from the garnishee". He went on to say, however, that:

"…. as a matter of discretion, a garnishee order will not be made against such a person if it would not operate to discharge the garnishee in whole or pro tanto from his liability in respect of the debt. Such a situation can arise where the garnishee, although himself within the jurisdiction, is not indebted within the jurisdiction"

18. He then referred to the S.C.F. and Swiss Bank cases, but added, with reference to citations from Dicey & Morris, that the problem of double jeopardy was much less serious than it otherwise might be:

"because garnishment is a process which is recognised internationally and most nations will give effect to a rule similar to that of English law, namely that "the validity and effect of an attachment or garnishment of a debt are governed by the lex situs of the debt" …. and that debts "generally are situate in the country where they are properly recoverable or can be enforced".

19. In Interpol Ltd. v. Galani [1988] 1 QB 738, the Court of Appeal dismissed an appeal against an order that a judgment debtor answer questions and disclose documents relating to any debts owed to him or other property or means belonging to him outside the jurisdiction. In doing so, it observed that Richardson v. Richardson was no longer good law, in the light of the S.C.F. and (in the Court of Appeal) Deutsche Schachtbau cases. Balcombe LJ spoke of the court not exercising its discretion to grant garnishee relief "if to do so might expose the garnishee to to the risk of having to pay the debt or part of it twice over" and of the court having "jurisdiction to garnish a debt recoverable outside the jurisdiction, even though as a matter of discretion it is unlikely to exercise that jurisdiction".
20. In the House of Lords in Deutsche Schachtbau, the reasoning of Lord Goff (with whose speech Lords Keith and Brandon expressly agreed) implicitly accepts a similar approach. At p.353B-D, Lord Goff indicated that the issue whether it would be inequitable to make a garnishee order absolute depended in turn upon the question "whether there was any real or substantial risk that the garnishee, having paid the judgment creditor under a garnishee order absolute in this country, would be required to pay the amount over again in proceedings in a foreign country". He regarded it as established law, that the English courts would, in the first instance, consider whether their decision was one to which foreign courts might be expected to give effect, and that there was an assumption that it was, if three criteria were satisfied:

"(1) The underlying judgment by the English court in favour of the judgment debtor has been entered by a court which is, by generally accepted principles of international law, a court of competent jurisdiction. (2) The situs of the attached debt, owing by the garnishee to the judgment debtor, is England. (3) Payment of the attached debt by the garnishee pursuant to the garnishee order absolute has the effect of discharging that debt."

21. Because of the effect of the English legislation, now embodied in RSC 49, Lord Goff said "there can really be no difficulty about the third", and that previous litigation had therefore been concerned with the first two criteria. At p.354E-H, Lord Goff addressed situations where one or more of these criteria were not satisfied. He said:

"But the question arises whether cases of this kind are to be solved by exclusive reference to this assumption. The point may arise in two ways. First, let it be supposed that one or other of the two criteria is not fulfilled, i.e. that the English court is not, by accepted principles of international law, competent with regard to the underlying judgment against the judgment debtor, or alternatively that the situs of the attached debt is not England. Will the English court in such circumstances automatically decline to make the garnishee order absolute, on the ground that there is a real risk that a foreign court may, despite payment by the garnishee pursuant to such a garnishee order absolute, nevertheless enforce the attached debt against the garnishee overseas? Second, let it be supposed that both criteria are fulfilled. Will an English court, in such circumstances, make a garnishee order absolute in accordance with the assumption, and exclude as irrelevant and inadmissible any evidence that a foreign court will nevertheless not recognise payment under the English order as effective to discharge the attached debt?"

Lord Goff continued at pp.354H-355B:

"I have mentioned that there are these two questions, for the sake of completeness; but I doubt whether the answer to the first question has much bearing on the answer to the second question with which your Lordships' House is here concerned. In fact, Martin v Nadel indicates that, in that case at least, there was consideration whether the courts in Berlin (the situs of the attached debt) would or would not recognise a payment under a garnishee order absolute in England as effective to discharge the attached debt. It was taken to be the fact that they would not, though this was by admission. In any event, the court was there concerned with a situation where the assumption was not available to provide a solution with reference to the position in this country. All that can be said of the case is that the question whether there was a real risk of the garnishee being compelled to pay twice over was being answered by reference to the factual situation."

22. In Deutsche Schachtbau the second question was relevant, and Lord Goff and the majority of the House held that, although all three criteria were fulfilled, nonetheless on the facts there remained an actual risk of double jeopardy, arising from the failure of the civil court in R'As al-Khaimah to follow generally accepted principles of jurisdiction and law.
23. Lord Goff's reasoning in these passages assumes that jurisdiction to make a garnishee order exists, although one or more of his three criteria is not fulfilled; and that whether to make a garnishee order in such a case involves an exercise of discretion. This is so, although Lord Goff's unanswered first question opens a possibility that the discretion would "automatically" be exercised to decline to make the garnishee order absolute, on the ground that there was a real risk that a foreign court might, despite payment by the garnishee pursuant to such a garnishee order absolute, nevertheless enforce the attached debt against the garnishee overseas. Had there been no jurisdiction at all to make the order absolute in circumstances where, for example, his second criterion was not fulfilled, Lord Goff's first and unanswered question could not have arisen.

The judge's reasoning

24. Tomlinson J. found it unnecessary to decide the circumstances (although he thought that they must be very rare) in which the English court will permit attachment of a foreign debt pursuant to the garnishee procedure of RSC O.49 r.1. That was because he considered that the unchallenged evidence of Hong Kong law demonstrated there was here a real risk that, if the garnishee order was made absolute, HSBC might be required to pay twice.
25. Tomlinson J. was satisfied that Eram's reliance on restitutionary principle did not eliminate that risk, since such reliance was "founded on a mistaken premise as to the nature of the garnishee jurisdiction". He analysed the case-law and principles governing relief by way of garnishee order; and concluded that it was of the essence of the garnishee process, at the initial stage, that the garnisheed debt was "attached" and impressed with a charge in favour of the judgment creditor (cf RSC O.49 r.1(1) and 3(2)), and, on the order being made absolute, that the garnishee became obliged to pay the debt garnisheed (up to the amount of the judgment debt) to the judgment creditor. It was not a process "properly to be analysed as one which compels the garnishee to pay his own unencumbered funds thereby generating a right to repayment" (transcript p.13). Its rationale was that payment to the judgment debtor released the garnishee from further liability to the judgment debtor (transcript p14 and cf O.49 r.8). In this paradigm case, no restitutionary claim could arise (because none would be necessary), and –

"If in the paradigm case no restitutionary claim arises, it would be odd if such a claim could nonetheless arise in the atypical case. The conclusion to be drawn from such a case is surely not that a restitutionary remedy would in that case, unusually, arise, but rather that the process of execution by way of garnishee order is likely to be unavailable unless it brings about a virtually automatic discharge of liability as between garnishee and judgment debtor. More broadly, why should there be available to a judgment creditor a process of execution which casts onto an innocent stranger to the relationship between judgment creditor and judgment debtor the risk of non-recovery of the judgment debt from the judgment debtor?"

26. Tomlinson J's analysis of the paradigm or typical case and its effects under English law is, we think, indisputably correct. His reasoning regarding any other, atypical case was, in substance, that the garnishee process should not be operated "unless it brings about a virtually automatic discharge of liability as between garnishee and judgment debtor". Tomlinson J. did not consider that a restitutionary remedy could cure this problem. His phrase "virtually automatic discharge" may, perhaps, offer a very limited, though undefined flexibility as to mechanism for discharge. But it appears to have been central to his reasoning that, unless the court of the situs would recognise the effects (attachment/equitable charge and then discharge) which garnishee relief attracts under English law, the English courts should not grant garnishee relief in respect of a foreign debt. The fact that payment under an order granting garnishee relief would have such effects under the relevant procedural rules of English subordinate legislation (cf. O.49) could be of no avail, unless the order and its effects in these respects would be recognised by the law of the country where the foreign debt was located. Inferentially, there might be a clash between the attitudes of two different legal systems.

The appropriate test

27. Tomlinson J's reasoning raises at the outset a point of principle, as he recognised when granting permission to appeal. Should the exercise of jurisdiction to grant garnishee relief in respect of a foreign debt be effectively confined by the answer to the question whether the law of the situs of that debt would recognise the English order or its characteristics under English law?
28. In this connection, it is, as we have indicated, implicit in the judge's reasoning that it is insufficient that in the eyes of English law any garnishee relief would discharge the foreign debt. In the case of a foreign law, the "virtually automatic discharge of liability" which he considered necessary before granting garnishee relief must also arise from recognition of the garnishee order itself by the court of the situs of the foreign debt. Hence (as we read his judgment) his refusal to attach any relevance to the submission that HSBC would, upon payment under an English garnishee order, acquire a restitutionary remedy which would itself pro tanto discharge any liability which HSBC might otherwise on the judgment debtor's bank account. The question arises whether this is too narrow a focus.
29. The alternative approach, which Eram advocates, poses a broader question. It asks (taking Lord Goff's words in his second, unanswered question in Deutsche Schachtbau at p.354E-G) whether "there is a real risk that a foreign court may, despite payment by the garnishee pursuant to such a garnishee order absolute, nevertheless enforce the attached debt against the garnishee overseas"? This approach acknowledges that an English garnishee order in respect of a foreign debt is likely to exceed any jurisdiction which the court of the situs of such a debt would be likely to recognise the English court as having; and that, if matters stopped there, garnishee relief would not be granted as a matter of discretion. But it allows the circumstances and the risks to be looked at more widely; and in this connection (consistently with Lord Goff's formulation) it permits consideration of the effects of payment under a garnishee order absolute upon the garnishee's exposure to the judgment debtor as a matter of private law, and of the reality of any risk that the garnishee may after such payment be obliged to pay a second time.
30. Tomlinson J., in the passage quoted above, did go on to address the issue "more broadly", in terms of risk. But he did not explicitly analyse whether, on the evidence before him, HSBC was or would be at any actual risk, following payment under a garnishee order. It seems likely that he simply concluded that the point did not arise, in view of the requirement, which he identified, of "virtually automatic discharge" by the garnishee order itself. It is possible, however, that he considered that the evidence of Hong Kong law settled this point also in HSBC's favour. That was certainly HSBC's submission before us; and we will have, later in this judgment, to consider what the evidence of Hong Kong law establishes, and on whom the onus lay to adduce any further evidence of that law.
31. The force of the judge's approach is to offer a bright-line rule for the exercise of discretion, taking principles of private international law of general acceptance, at least in common law countries; and to avoid any conceivable risk of double jeopardy, except in cases like Deutsche Schachtbau itself, where the risk arose from the foreign state's failure to comply with generally accepted principles of private international law. The cost at which this approach may come would be to require the English courts to refrain from granting garnishee relief in circumstances where there was no real risk of double jeopardy. Further, by insisting that the garnishee's liability to the judgment debtor should not merely be discharged in the eyes of English law (cf O.49 rr. 1(1), 3(2) and 8), but also be discharged in the eyes of whatever may be the law of the situs, the judge's approach in effect introduces a limitation on jurisdiction. The statements of principle in the authorities disclaim such a limitation. We do not consider that these statements can be explained by reference to the hypothesis that a foreign debt might be sited in a country whose law might be prepared to recognise the proprietary effects attributed by English law (O.49) to English garnishee relief. The statements contemplate that jurisdiction to garnishee a foreign debt exists, although the effect will not be to discharge the debt in the eyes of the law of the situs, but that the court will as a matter of discretion refuse to exercise the jurisdiction if to do so will expose the garnishee to the risk of having to pay twice over: see in particular per Ralph Gibson LJ in S.C.F., Balcombe LJ in Interpol Ltd. v. Galani and Lord Goff in Deutsche Schachtbau cited above.
32. According to generally accepted principles of private international law, at least in common law countries, all assets have a location or situs, which in the case of intangibles such as a debt is generally the place of the debtor's residence. Operations of a proprietary character, such as state acts affecting title, are recognised as valid if taking place under the law of the situs and not otherwise: see Dicey & Morris, The Conflict of Laws (13^th ed.) Rules 112 and 120. The rationale for taking the debtor's residence is that this is traditionally regarded as the place where the creditor can enforce payment: see Dicey & Morris Rule 112 para. 22-26. But, as Dicey & Morris point out, this is not necessarily the only place where payment can be enforced. Indeed, in some cases, it may not even be possible in the first instance to litigate in the country of the debtor's residence (e.g where there is an exclusive jurisdiction clause pointing to another jurisdiction - it seems unsettled where the situs would then be: see Dicey & Morris, para. 22-26 footnote 61), while in many others there may not be any assets in the country of the debtor's residence. More importantly for present purposes, a corporation may be "present", and subject to the personal jurisdiction of different courts, in many different places. But the situs of a debt will be assigned to the place where the debt is expressly or impliedly payable or, failing any such place, where it would be paid in the ordinary course of business. A demand for repayment of a credit standing to a bank account is thus located in the country where the account is kept: Dicey & Morris, para. 22-029.
33. Despite some academic criticism (cf P.J. Rogerson, The Situs of Debts in the Conflict of Laws – Illogical, Unnecessary and Misleading; [1990] CLJ 441), the authorities cited earlier in this judgment indicate that situs has an established and important role in relation to the exercise of discretion to grant garnishee relief. Further, even if Dr. Rogerson's preference for the proper law of the contract had been adopted by the courts, it would not matter in the present case, where both the situs and the proper law of HSBC's banking relationship with the judgment debtors were Hong Kong.
34. To the extent that Eram seeks garnishee relief in respect of a debt which is sited outside England, the English court may thus be said to be being invited to act outside the jurisdiction afforded to any national court under generally accepted principles of private international law. The characteristics of English garnishee relief typically include an attachment/charging order at the initial stage of a garnishee order to show cause – see RSC O.49 r.1(1) and 3(2) - and a discharge of liability upon payment under a garnishee order absolute – see O.49 r.8. The court of the situs would not be expected to recognise those particular characteristics, and that opens a prospect of conflicting claims and duties and of a risk of double jeopardy. Caution must on any view be required before ordering garnishee relief in respect of a foreign debt. But is the fact that a debt has a foreign situs necessarily a bar to garnishee relief? Leaving aside the apparent disclaimer in the authorities of any such limitation, it seems to us possible to identify some cases where such a limitation on jurisdiction might appear obviously unfortunate. Suppose, for example, that the judgment debtor was owed a debt by a Panamanian shipping company, that the debt was, accordingly, sited in Panama but that the sole assets of the potential garnishee, the Panamanian company, consisted of monies held in London: an absence of any possibility or risk of enforcement against the Panamanian company outside England ought, in such a case at least, to outweigh any significance attaching to the law of the situs.
35. As to a garnishee order to show cause, the reality is that if the garnishee is or will be under any real risk of double jeopardy, then either the garnishee order to show cause will not be made at all, or, if it has been made, it can at any time be set aside and not made absolute. If the garnishee is and remains under no such risk, then a garnishee order to show cause can be issued and made absolute without injustice. If the terms of the garnishee's relationship with the judgment debtor themselves protect the garnishee against any risk of double jeopardy during the period when a garnishee order to show cause is in force in respect of a foreign debt, that may exclude any possible risk. Once a garnishee order is made absolute, the obligation to pay arises. It is payment under an English garnishee order that is under English law provided to discharge the garnishee's indebtedness to the judgment debtor: see RSC O.49 r.8. If payment under an English garnishee order relating to a foreign debt gives rise to restitutionary relief which, under the terms of the garnishee's relationship with the judgment debtor, extinguishes pro tanto the garnishee's foreign liability to the judgment debtor, there is an equally conclusive discharge. Any risk of double jeopardy is excluded in either case.
36. This is not to say that consideration might not in some circumstances be given to modifying the wording of a garnishee order to show cause relating to a foreign debt. This might be possible by excluding any provision for attachment at that stage, or by introducing a proviso protecting the garnishee similar to that protecting third parties in the case of freezing injunctions: cf Babanaft International Co SA v. Bassatne [1990] Ch. 13 and the now standard clause included in freezing injunctions "Effects of this Order outside England and Wales": Civil Procedure 2001 Vol. 2 para. 2C-210. We did not hear argument about these as possibilities. If we are wrong to identify them as possibilities, their absence cannot mean that there was any real risk of double jeopardy. With or without them, we would, for our part, also discount any risk (also not suggested in argument before us) that conduct abroad contrary to an English garnishee order to show cause could, in a case like the present, render those acting vulnerable to contempt proceedings in England: see further The Territorial Reach of Mareva Injunctions by Lawrence Collins (1989) 105 LQR 262, 281-6.
37. Returning to the central point, if there is no real risk of injustice or double jeopardy, one may ask why the English courts should deprive themselves of a simple and efficacious means of enforcing an English judgment against a person who is within its personal jurisdiction. The English court is concerned with the enforcement of a judgment. The judgment has not been challenged, either as to its making or as to its registration here. The judge acknowledged as the starting point that the court "should and will obviously do everything within its power to assist the Judgment Creditor in recovering from the Judgment Debtor what is due to it". The considerations which we have so far identified seems to us to point towards a pragmatic test, based on the reality of any risk of injustice, rather than a more formalistic approach based on the effect of a garnishee order as such, ignoring the effect of payment under it. The language of O.49 and the reasoning of this court in S.C.F. and Interpol Ltd. v. Galani and of Lord Goff in Deutsche Schachtbau also appear to us to point in the same direction.
38. HSBC submits that the English courts should not involve HSBC at its London branch with the affairs of a customer banking at HSBC's Hong Kong head office. We were referred to the decision of Hoffmann J. (as he was) in Mackinnon v. Donaldson, Lufkin and Jenrette [1986] 1 Ch 482, where the issue in an English action was whether an American bank, which was not party to the action, should be required through an officer of its London branch to produce under subpoena duces tecum documents held at its head office relating to an account of one of the originally intended defendants, a Bahamian company, which had ceased to exist, having been struck off the Bahamian register.
39. Hoffmann J. held that an order requiring a foreigner, particularly a foreign bank, not party to the English litigation, to produce documents outside the jurisdiction relating to business transacted outside the jurisdiction should not be made, save in exceptional circumstances. He said at p. 493G:

"The principle is that a state should refrain from demanding obedience to its sovereign authority by foreigners in respect of their conduct outside the jurisdiction."

And at p. 494C:

"The need to exercise the court's jurisdiction with due regard to the sovereignty of others is particularly important in the case of banks. Banks are in a special position because their documents are concerned not only with their own business but with that of their customers. They will owe their customers a duty of confidence regulated by the law of the country where the account is kept. ….. If every country where a bank happened to carry on business asserted a right to require that bank to produce documents relating to accounts kept in any other such country, banks would be in the unhappy position of being forced to submit to whichever sovereign was able to apply the greatest pressure."

40. Hoffmann J. went on to distinguish cases "concerned with the enforcement of private rights arising out of matters properly subject to the jurisdiction of the court". Mr Page submitted before us that the present case fell within this category. As between Eram and the judgment debtor no doubt it would. But we are concerned with an issue of execution between Eram and HSBC, in which HSBC's only involvement is as a third party to which the judgment debtor happens to have owed money. HSBC is involved by virtue of the state's sovereign authority over persons within its jurisdiction. We do not therefore accept Mr Page's suggested distinction.
41. In Mackinnon the application was to use the state's sovereign power over someone within its jurisdiction to compel that person to identify and locate documents in, and produce them from, the United States. In this connection, the theme of the passage from Dr Mann's article "The Doctrine of Jurisdiction in International Law (1964) 111 Recueil des cours 146, which Hoffmann J. cited, was that a state's exercise of its power to regulate the conduct of persons abroad required the state to have not merely personal jurisdiction over that person, but also substantive jurisdiction to regulate conduct in the manner undertaken. oHoffmThe ultimate aim of garnishee relief is not, however, to require HSBC to do anything in Hong Kong. It is to require HSBC in England to pay the judgment debt, or so much of it as can be met, out of the monies owed by HSBC to the judgment debtor in Hong Kong. It is true that the garnishee order to show cause required HSBC in terms to refrain from paying the judgment debtor and purportedly charged the Hong Kong bank account with the amount of the judgment debt. To that extent the garnishee order to show cause can, in this case, be said to have required HSBC to act in a particular way outside the jurisdiction. This is however a significantly less intrusive requirement than that in issue in Mackinnon itself; and, if it had proved problematic, application could have been made to discharge the garnishee order to show cause and there would have been good cause to refuse a garnishee order absolute. The real aim of garnishee relief is to obtain an order absolute requiring HSBC to meet the judgment debt in England. On Eram's case, payment will of itself, and by reason of private law principles and contractual terms, provide HSBC with a discharge in Hong Kong. There will be no question then of the English court requiring HSBC to act in any particular way in Hong Kong.
42. Mackinnon stands as authority, which we would not question, relating to the use of English jurisdiction over a local branch to obtain documents from the foreign branch of an international bank. But it provides no exact analogy when considering the jurisdiction of an English court to enforce an English judgment by insisting that an international bank, which owes money at a foreign branch, should make it available here to discharge the English judgment. We accept that caution is necessary about exercising jurisdiction over an international bank, with reference to assets held abroad, and this is the aspect of this appeal which has caused us the greatest doubt. But we would conclude that, in the enforcement of an established English judgment against a judgment debtor, the English court is entitled to go further than it would generally go when authorising evidential steps in relation to pending litigation, if it can do so without any risk of injustice or, in particular, double jeopardy for HSBC.
43. For these reasons, we consider that a "virtually automatic discharge" by the order for garnishee relief itself (as distinct from the payment under the order) should not be viewed as an effective pre-condition to the exercise of jurisdiction to grant garnishee relief. The test should be the wider one, whether there is, as a practical matter, a real risk of the garnishee having to pay twice, if garnishee relief is granted.

Is there a real risk of double jeopardy?

44. Eram's case, on this appeal, is that a combination of factors means that the garnishee relief sought would not place HSBC at any actual risk of having to pay the judgment debtors twice. Eram relies in particular upon (a) the restitutionary claim which HSBC would on payment acquire, (b) HSBC's terms and conditions and (c) the absence of any evidence of any actual risk or exposure towards, or indeed threat from the judgment debtor.
45. As to (a), the law applicable to determine whether such a restitutionary right arose is either the law of England, on the basis that the benefit was conferred on the judgment debtors by the discharge here of their liability under the English judgment, or the law of Hong Kong, if one treats the benefit as arising there, where the judgment debtors reside. The former may not be the appropriate analysis (cf Dicey & Morris paras. 22-038/9), and we are prepared to assume for present purposes that the latter applies. The usual principle is that, absent proof of foreign law, any otherwise applicable foreign law is presumed to be the same as English law (or, putting the point in a way which is perhaps preferable, English law is applied): see Dicey & Morris, para. 9-025. Applying this principle, the law of Hong Kong is to be treated as the same as English law. The fact that it is well known that the law of Hong Kong is based on the common law merely adds comfort as to the underlying reality of that approach, as well as a likely explanation why the evidence of Hong Kong law before us is limited. For reasons which will appear, we see no ground for departing from the usual approach in the present context.
46. Mr Harrison did not dispute that, as a matter of English law, payment by HSBC would give it a restitutionary right to reimbursement as against the judgment debtors. The basis of the restitutionary right would be that HSBC had been compelled by operation of English law to discharge the liability of the judgment debtors: Goff & Jones, The Law of Restitution (5^th ed.) pp.438 and 455-6. Compulsion by a foreign system of law is in this context sufficient: Liberian Insurance Agency Inc. v. Mosse [1977] 2 Ll.R. 560. What matters in this context would be HSBC's compulsion under an English garnishee order to meet the judgment debtors' liability to Eram under the English judgment. That would be a personal liability of HSBC to Eram imposed by English law, which has unquestionable personal jurisdiction over HSBC. The fact that an English garnishee order could not be "given effect" in Hong Kong, by reciprocal enforcement procedures or action, or recognised there in different, proprietary contexts (in particular in so far as it purports to attach or discharge HSBC's liability to the judgment debtors) is irrelevant. Thus far, therefore, it follows (a) that payment by HSBC in England under compulsion of an English garnishee would give HSBC a personal restitutionary right in like amount against the judgment debtors, and (b) that Hong Kong law would recognise this right.
47. Mr Harrison suggested that such a restitutionary right could constitute no more than a cross-claim, which could not be regarded as a discharge. That is incorrect, even at common law. HSBC would be entitled to recover the amount of any restitutionary claim, by deducting the same from any credit balance due to the judgment debtors, so discharging its liability on any credit balance to that extent: see Goff & Jones, The Law of Restitution (5^th ed.) pp. 438 and 455-6. But the position is confirmed with exceptional clarity by HSBC's terms. The "account holder's liabilities" are defined in the broadest terms, to include not merely actual and present, but future, deferred and contingent liabilities. Even the making of a garnishee order to show cause would create a contingent liability, while the making of a garnishee order absolute would give rise to an actual and present liability. Even before payment therefore, HSBC would be protected from having to pay its judgment debtor customers on demand. Once HSBC had paid, any liability on its part to the judgment debtors would be permanently discharged.
48. HSBC submits that there is undisputed evidence undermining these conclusions, and demonstrating that Hong Kong law would not recognise any discharge of HSBC's liability to its customers, arising from any payment made by HSBC under compulsion of an English garnishee order, and that HSBC would therefore remain in double jeopardy. We turn therefore to consider the effect of the limited positive evidence that there is of Hong Kong law. The issue which Mr Reed considered was whether "a contractual obligation, governed by Hong Kong law" in respect of a bank account sited in Hong Kong could be affected by an English garnishee order. His advice was that such an order (i) had no automatic effect in Hong Kong and (ii) was not a type of order that would be given effect in Hong Kong either (1) under reciprocal enforcement procedures (there being in any event no such procedures in relation to English judgments since 1997) or (2) by the making of a Hong Kong court order based on the English court order. "Accordingly", his advice proceeds, in the absence of either the English or the French court orders being given effect under Hong Kong law, the garnishee would be in breach of contract if it "were either to freeze such balance or to pay such balance to [Eram] in reliance on such English or French court orders".
49. This advice was given both before any question of restitutionary relief was raised and before any reliance was placed on HSBC's standard or special terms. The advice was directed at the (lack of) effect in Hong Kong of an English garnishee order. Not surprisingly, in our view, what it says was and remains entirely uncontroversial. Mr Reed cannot be read as advising that Hong Kong common law does not or would not recognise the restitutionary right which would, under English law, arise in HSBC's favour against the judgment debtors if HSBC was compelled by an English court to discharge the judgment debtors's liability to Eram. He was not directing his mind to this at all. We would only add that HSBC has had plenty of time to do so since, if it was thought that there was any prospect of establishing that the common law of Hong Kong does not recognise precisely the same basic restitutionary principles as English common law.
50. Mr Reed's assumption - heralded by the word "Accordingly" - that, so long as the English and French court orders were not given effect in Hong Kong, the garnishee would be in breach of contract if it were to freeze the credit balance or to pay such balance to Eram in reliance on either court order, is unreasoned and unsupported by any reference to Hong Kong law, and once again made before any reference to restitutionary principles or to HSBC's terms. It is one thing to say that Hong Kong courts would not give effect to an English garnishee order, by reciprocal enforcement or action. It is quite another to suggest that they would not recognise either the discharge of the judgment debt by HSBC under compulsion of English law as giving HSBC any personal restitutionary remedy against the judgment debtor or the express effect of HSBC's standard terms in giving HSBC a defence at the stages both of a garnishee order to show cause and of a garnishee order absolute. If, as we have concluded, the Hong Kong courts would recognise both HSBC's entitlement to restitutionary relief on payment and the effect of HSBC's standard terms, the effect is that HSBC was and is protected, and will on payment be discharged, in the eyes of Hong Kong law, just as effectively as if the garnishee relief had related to a debt sited in England.
51. Addressing the question whether any English garnishee order (whether the order made to show cause or a garnishee order absolute) would expose HSBC to any real risk of having to pay twice, we are in these circumstances unable to detect any real risk of that nature at all. HSBC is protected against any such risk by established principles of common law and by its own very broadly expressed account terms.
52. A further note of realism is also admissible. This litigation has been vigorously conducted over a substantial period. The garnishee order to show cause dated 4^th April 2000 was, as required by the rules, served both on the garnishee and on the judgment debtors. Only the garnishee, HSBC, has in the event appeared to resist its making absolute. But the judgment debtors must be well aware of the proceedings. Indeed, at the stage of disclosure, HSBC indicated that the judgment debtors, as its customers, had refused voluntarily to waive confidentiality in, or therefore to allow disclosure of, the terms of their contract with HSBC. There is nothing to indicate, one way or the other, whether Eram's suggestion (by letter dated 20^th March 2001, responding to a claim for security for the costs of this appeal) that the judgment debtors have agreed to indemnify HSBC for the costs of these proceedings is well-founded. However that may be, if there was a real risk of HSBC being in breach of contract, or of being asked to pay twice, one could have expected it to have emerged by now. On HSBC's own case it remains exposed to a risk of double jeopardy, despite any English order granting garnishee relief. Yet no such risk has ever manifested itself, although the English order to show cause and meanwhile attaching the debt has been in force for (now) some 16 months. It seems probable that either the judgment debtor has taken no steps to demand repayment of any credit balance or, if any such demand has been made, HSBC has been able to resist it, very probably by relying on HSBC's standard terms. Whatever the position, if there has been no or no successful attempt to recover the credit balance during the currency of the garnishee order to show cause, this gives comfort that HSBC is unlikely to be at any real risk of double jeopardy if and when it is compelled to pay under a garnishee order absolute.

The burden of proof

53. Tomlinson J. did not regard the burden of proof as critical. He said that:

"If the burden lies on the Garnishee, it has discharged it by reliance on the law of Hong Kong. The Judgment Creditor's argument by reference to restitutionary principles is misconceived. If the burden lies on the Judgment Creditor it has failed to discharge it."

54. For reasons which we have given, we would reach a different conclusion to the judge on each of these points. The judge went on, however, to give his views on the burden of proof, and we propose to say a word about this also. The judge referred to Lord Goff's dictum at p.354F-G in Deutsche Schachtbau as indicating that, in the case of a foreign debt, garnishee relief is, at least, exceptional, and that the onus must be on the garnishor to show some basis for the grant of such exceptional relief. That seems to us correct, in so far as (a) the normal assumption, having regard to the generally accepted principles of private international law to which Lord Goff referred, would be that an English garnishee order would be ineffective to bind or discharge a foreign debt in the eyes of a foreign court and (b) absent other factors, a real risk of the garnishee having to pay twice would therefore appear likely. In practical terms, the onus would thus shift to the applicant for garnishee relief to show some basis for concluding that there was no such risk and for granting such relief.
55. Tomlinson J. also expressed the view that an applicant for garnishee relief would ordinarily only be able to satisfy the English court that garnishee relief was appropriate and would not lead to a real risk of double jeopardy, by adducing positive evidence that the foreign law differed from English law. We do not understand Tomlinson J. to have been suggesting that the present situation constituted an exception to the general principle that, absent proof of foreign law, any otherwise applicable foreign law is presumed to be the same as English law or, more simply, English law is applied (see above). Rather, he was pointing out that Lord Goff's willingness to afford garnishee relief in circumstances where his three basic criteria were fulfilled took as its premise that foreign courts would recognise those criteria and any garnishee relief based upon them. The corollary is that, in circumstances where those criteria were not fulfilled, foreign courts would not normally recognise English garnishee relief as binding or discharging any debt sited outside the English jurisdiction.
56. In practical terms, therefore, an applicant for garnishee relief relating to a foreign debt has to show some good cause why such relief should be ordered. This is perhaps especially, though not exclusively, obvious at the initial stage of an application without notice for a garnishee order to show cause. But this is because of the presumption equating English and foreign law, not as an exception to it. One way of overcoming the difficulty could be to show that the foreign law would (unlike English law in the equivalent situation) recognise an English garnishee order in respect of a foreign debt. But there may be other ways. An applicant for garnishee relief might, for example, be able to show that, although the debt was sited in a country whose law was, or was assumed to be the same as English law, the only jurisdiction in which the garnishee was in reality exposed to the judgment debtor was England. This might (for example) be because the garnishee's only assets were held in England, or because of an exclusive jurisdiction clause binding the judgment debtor to pursue all claims against the garnishee in the English jurisdiction. Finally, in a case like the present, the applicant may be able to rely upon the combination of a restitutionary claim and wide-ranging contractual terms, as between the garnishee and judgment debtor, to negative any real risk of double jeopardy.
57. We do not have to decide what might be the appropriate attitude of a court if, at the stage of an application to show cause, an applicant for garnishee relief in respect of a foreign debt simply invoked the presumption of identity between English law and the law of the situs, and submitted that this alone sufficed to establish that a restitutionary claim would arise on payment under compulsion of an English garnishee order. The court, at the stage of an application without notice, might insist on something more concrete, particularly if the foreign situs was not a common law country like Hong Kong. Although a garnishee can always apply to set aside a garnishee order to show cause, the court might not feel it appropriate even to put it to that expense, unless the court had before it some more positive confirmation of the absence of any real risk of double jeopardy than one depending on the presumed equation of the common law and some other foreign law. Before Tomlinson J. and before us the position is, however, different; both parties have been represented, and have had full opportunity to investigate Hong Kong law, if they wished, and to demonstrate any relevant respect in which its common law differs from English law.

The availability of alternative relief

58. Tomlinson J. did not rely upon this in arriving at his conclusion, though he took some comfort from the availability of another "perfectly straightforward" route to enforcement. This route consists in reverting to and seeking to register in Hong Kong the French judgment, or in suing on the present English judgment in Hong Kong. Each course would involve taking proceedings in a jurisdiction other than that of the relevant judgment, unlike the garnishee relief presently sought. However, there is, on the evidence, no reason to believe that either would involve any substantial difficulty or delay. Should Eram be remitted to elect between one or other of these uncontroversial procedures? The availability of alternative relief is a relevant factor, and may be decisive if there is a possible risk of double jeopardy and the court is in any doubt about how real it is. But, if the basic test for the grant of English garnishee relief is, as we think, whether there is a real risk of the garnishee having to pay twice, and if the court is, as we think here, able to reach a clear conclusion that there is no such risk, then it seems to us that the existence of an alternative course should not preclude English garnishee relief. The seeking of English garnishee relief is in such a case of itself a legitimate course.

Conclusion

59. In our judgment, the correct approach to the application before the judge is to ask whether HSBC would be at any real risk of having to pay twice, if a garnishee order absolute were made against it. For the reasons we have given, we would answer this question in the negative on the facts of this case. To summarise the relevant considerations: (a) HSBC would on payment acquire a restitutionary claim with which it could extinguish pro tanto any liability to the judgment debtors; (b) HSBC's terms and conditions afford it, in this connection, the widest conceivable protection; that protection precludes HSBC from having to pay the judgment debtors while any garnishee order to show cause is in force and after the making of any garnishee order absolute; and will finally extinguish HSBC's liability pro tanto if and when it makes any payment under a garnishee order absolute; and (c) there is an absence of any evidence of any actual risk or exposure towards, or indeed threat from the judgment debtor, at any time since the service of the garnishee order to show cause in Spring 2000; had the suggested risk been a real one, one could have expected it to emerge by December/January 2001 when Tomlinson J. heard argument and gave judgment; and, had any such risk or threat emerged since, we may be confident that we would have been informed.
60. This case therefore turns on a particular combination of considerations. In their light, we have come to the conclusion that the English court should be prepared to make a garnishee order absolute. This should not encourage judgment creditors to seek a similar order in every case where they believe that their judgment debtor has amounts on credit with the foreign branch of a bank which also has an English presence. We would, in this connection, agree with Tomlinson J. that a court should pay particular attention to the issue of double jeopardy, if and when asked, without notice to the garnishee or judgment debtor, to make a garnishee order to show cause in respect of a foreign debt. Here, however, the matter has progressed beyond that stage, and, both before us and before the judge, the combination of circumstances which we have identified is now clearly established. In view of this combination of circumstances, and since there are no other countervailing considerations, we consider that the English court can appropriately order garnishee relief, although the relief relates to a foreign debt, and that we should now do so. We would therefore allow this appeal and make absolute the garnishee order to show cause dated 4^th April 2000.