QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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E D & F MAN SUGAR LTD |
Claimant |
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- and - |
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KRYTON LENDOUDIS |
Defendant |
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S.J.Phillips and Jessica Sutherland (instructed by Swinnerton Moore Solicitors) for the Defendant
Hearing dates: 24 September 2007
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Crown Copyright ©
MR JUSTICE CHRISTOPHER CLARKE
"Accepts the application
Recognises and declares as executable in Greece the London arbitration award of 16-3-1994 as amended by the supplementary award of 14-4-94 of the arbitrator Christopher Moss"
"It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated".
"We respectfully agree with this statement as a general proposition. However, it was not made in the context of a pleading intended to be served out of the jurisdiction, to which we think rather different conditions apply. In our judgment, if the draftsman of a pleading intended to be served out of the jurisdiction under Order 11, r. 1 (1) (f) (or indeed under any other sub-paragraph) can be reasonably understood as presenting a particular head of claim on one specific legal basis only, the plaintiff cannot thereafter, for the purpose of justifying his application under Order 11, r. 1 (1) (f). be permitted to contend that that head of claim can also be justified on another legal basis (unless, perhaps, the alternative basis has been specifically referred to in his affidavit evidence, which it was not in the present case). With this possible exception, if he specifically states in his pleading the legal result of what he has pleaded, he is in our judgment limited to what he has pleaded, for the purpose of an order 11 application. To permit him to take a different course would be to encourage circumvention of the Order 11 procedure, which is designed to ensure that both the court is fully and clearly apprised as to the nature of the legal claim with which it is invited to deal on the ex parte application, and the defendant is likewise apprised as to the nature of the claim which he has to meet, if and when he seeks to discharge an order for service out of the jurisdiction.",
"The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings".
The evidence of Mr Sotiriadis
The evidence of Mr Vernicos
"(f) The foreign titles that have been declared enforceable".
Article 406 provides that "the foreign arbitral awards are declared enforceable in accordance with article 905, para 1, if the conditions of article 903 are met".
The detention judgment
Judgment for a money sum?
"duly made executory or a judgment of the Arrondissement Tribunal … whereupon, it was alleged by the plaintiffs, the same acquired the same executory force as a judgment of the Arrondissement Tribunal .."
"Where, as is often the case, the foreign judgment upon the award has the character of an exequatur, a formal order giving leave to enforce the award comparable to an order under s.66 of the Arbitration Act 1996, that which is enforced in England will probably always be the award and not the order. It has been seen above that where a foreign judgment has been obtained on the award it is a matter of some doubt whether the award may be enforced. But the distinction between enforcing the award and enforcing the order declaring an award enforceable may be insubstantial".
"in order to [have] its receiving effect here, a foreign decree need not be final in the sense that it cannot be made the subject of appeal to a higher court; but it must be final and unalterable in the court which pronounced it; and if appealable the English court will only enforce it subject to conditions which will save the interests of those who have a right of appeal".
Public policy
"Suing on a judgment, at all events for the first time, cannot be said to defeat legislative policy. That is plain from the very language of section 24 of the Limitation Act 1980 … Here the second action was, of course brought within [the] limitation period".
The effect of the Court's decision was that original award would be enforced by an action on a judgment well beyond six years after the accrual of the cause of action on which the award was based.
Conclusion