For the reclaimer and respondent: G Maciver; MBM Commercial LLP

For the respondent and petitioner: O'Brien; Burness LLP

29 May 2012

[1] This reclaiming motion seeks review of the interlocutor of the Lord Ordinary dated 29 February 2012 refusing to set aside the registration of the judgment specified in the interlocutor dated 4 January 2012.

[2] The principal and, until shortly before the hearing of the reclaiming motion, the only ground of appeal, was to the effect that the Lord Ordinary erred in three specific respects when she refused to exercise her powers under section 5(1) of the Foreign Judgments (Reciprocal Enforcement) Act 1933 ("the 1933 Act"). That section provides as follows:

"If on an application to set aside the registration of a judgment the applicant satisfies the registering court either that an appeal is pending or that he is entitled and intends to appeal against the judgment the court, if it thinks fit, may on such terms as it may think just either set aside the registration or adjourn the application to set aside the registration until after the expiration of such period as appears to the court to be reasonably sufficient to enable the applicant to take the necessary steps to have the appeal disposed of by the competent tribunal."

It is clear from the terms of that subsection that the court only has power to set aside the registration of a judgment or to adjourn the application to set it aside in two specified situations. The first is where the applicant seeking such a remedy satisfies the court that an appeal is pending. As at the date of the hearing before Lady Smith it appears that the reclaimer had submitted a form, which subsequently proved to be inept, seeking leave to appeal at a time when he accepted that he was out of time to do so. In these circumstances we are not persuaded that at the date of the hearing before the Lord Ordinary an appeal was pending. We consider that the circumstances in which an appeal can be described as pending are limited to the following situations: firstly, where an applicant has lodged a timeous appeal and that appeal has not been determined or, secondly, where the court has allowed an appeal to be received late and the appeal is awaiting determination. It does not include the circumstances of the present case where an inept application had been made for leave to appeal. Nor does it cover a situation where a valid application has been made for leave to appeal late but that application has not been determined. Until such an application has been granted no appeal is pending. The second situation to which section 5(1) applies is where the applicant is entitled to appeal and intends to do so. The applicant must satisfy the registering court about both of these requirements before the court may consider whether to exercise its discretion in his favour. Although the reclaimer advised the Lord Ordinary that he intended to appeal if granted leave, it cannot be said that he was entitled to appeal for similar reasons to those outlined above in respect of pending appeals. For the foregoing reasons we are satisfied that the Lord Ordinary did not err when she concluded that the discretionary power under section 5 was not available to her.

[3] Even if section 5 had been applicable in this case the reclaimer would not have succeeded. The fact that an appeal is pending does not preclude the registration of a judgment, (section 1(3) of the 1933 Act). Section 5 merely provides the court with a discretion not to register the judgment or to delay its registration where such an appeal is pending or where the appellant is entitled and intends to appeal. In the present case the reclaimer was aware of the proceedings. He took part in them. Initially he was represented by solicitors but dispensed with their services. He accepts that he was advised to obtain alternative representation and that judgment might pass against him if he failed to do so. In the action at his instance he was aware of the court order ordaining him to find caution and failed to do so. He was aware of the consequences of such failure. Moreover in 2010 he made representations about the expenses of the action at the instance of the petitioner indicating that he was well aware of the first judgment against him in that action and of the possibility of further judgments relating to expenses. He failed to appeal against the judgments within the time limit for such appeals and he has not yet been granted leave to appeal. He took no action to seek leave to appeal late until more than one year had elapsed after judgment had been pronounced against him and only then after the petition for registration of the judgments was served upon him. The reclaimer's stated fear that any payment made by him after registration of the judgment may be difficult to recover from the petitioner is ill founded. If he is granted leave to appeal and the court in New South Wales suspends the judgments pending determination of the appeal, the reclaimer will be able to seek suspension of any diligence undertaken following upon registration of the judgments. Moreover, if the judgments are satisfied by the reclaimer making payment to the petitioner and the reclaimer succeeds in a subsequent appeal, he could seek repayment from the petitioner and, if necessary, seek redress in the court of New South Wales. In that regard he is in no different position from anyone else against whom there is a final foreign judgment and who successfully appeals against that judgment. Section 1(3) of the 1933 Act deems a judgment to be final and conclusive "notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court". Had we been required to do so, we would not have exercised our discretion under section 5 in favour of the reclaimer.

[4] That is sufficient to dispose of the original grounds of appeal. However, on the morning of the hearing of the reclaiming motion the reclaimer sought, and was granted, leave to lodge an additional ground of appeal directed at the terms of the Lord Ordinary's interlocutor dated 4 January 2012. That interlocutor erroneously referred to the Administration of Justice Act 1920 but was corrected by the interlocutor dated 29 February 2012 by substituting a reference to the 1933 Act. Counsel for the reclaimer drew our attention to a more fundamental error in the interlocutor dated 4 January. It reads as though the judgment of the District Court of New South Wales, Sydney dated 28 January 2010 granted decree for the three principal sums specified in that interlocutor whereas the reality is that the judgment only granted decree for the first sum of £86,378.93. The two remaining sums specified in the interlocutor were specified in later judgments dated 16 February 2011. There was force in counsel's submission and the terms of the interlocutor dated 4 January are undoubtedly wrong.

[5] Nevertheless it is clear from the terms of the petition, as well as the answers to the reclaimer's note that was presented to the Lord Ordinary, that there had been more than one judgment and that the petitioner was seeking registration of all of them. As we have already observed, the reclaimer was aware of the existence of the first judgment because he made representations about the account of expenses in that case, which ultimately resulted in the subsequent two judgments. The reclaimer has not been prejudiced by the errors in the interlocutor as the petition clearly sought registration of judgments in the plural. It referred to certified copies of the judgments which were lodged with the petition and the error in the interlocutor dated 4 January is a result of a combination of imprecise drafting of the petition and the failure by the Lord Ordinary to recognise that the certified copy judgments had different dates.

[6] We shall allow the reclaiming motion to the extent of recalling the interlocutor dated 4 January 2012 and we shall substitute for that interlocutor an interlocutor specifying the correct dates of the three judgments to be registered by the Keeper of the Registers of Scotland. As the question of set aside of registration of all three judgments was the subject of submissions before the Lord Ordinary and before us, we shall not fix any further period during which the reclaimer might apply to set aside registration. We shall also direct the Deputy Principal Clerk of Session to issue a certificate in terms of Rule of Court 62(10)(3) upon the request of the petitioner. Quoad ultra we shall refuse the reclaiming motion. In light of the several defects in the petition we will find no expenses due to or by either party, except insofar as already dealt with by the Lord Ordinary.