Scottish Court of Session Decisions

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Cite as: [2019] ScotCS CSIH_16

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Drummond Young

Lord Malcolm

OPINION OF THE COURT

[2019] CSIH 16

CA64/17

delivered by LORD CARLOWAY, the LORD PRESIDENT

in the Reclaiming Motion

in the cause

DANIEL MIKHAIL ZIGAL

Pursuer and Respondent

against

GORDON ALEXANDER BUCHANAN

Defender and Reclaimer

Pursuer and Respondent: Murphy; Alexander Moffat & Co

Defender and Reclaimer: Party

5 March 2019

[1] This is a reclaiming motion against the interlocutor of the Lord Ordinary dated

18 September 2018 granting decree, in favour of the pursuer, conform to the terms of a final

judgment of the High Court of the Hong Kong Special Administrative Region dated

6 October 2016. The judgment is for 774,430 HKD and 99,927 USD together with interest.

[2] After a proof before answer, the Lord Ordinary found that the parties had been

business associates in Hong Kong. On 8 June 2015 they had had a meeting at the offices of a

firm of solicitors concerning their continued association. There was a discussion about

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claims made by each party against the other. Thereafter, the pursuer brought proceedings

against the defender in Hong Kong. In particular, a writ of summons was issued by the

High Court on 27 January 2016 claiming the sums mentioned. On 6 October 2016, the High

Court pronounced a final judgment for these sums in favour of the pursuer. That judgment

was a decree in absence. It proceeded on the basis that the writ had been personally served

on the defender in Hong Kong on 14 July 2016. There were affidavits from the pursuer’s

father and from Ravinder Singh Beryar narrating that personal service of the writ had been

executed on that day. There was no challenge to the validity of the service or to the decree

in absence in the High Court.

[3] The Lord Ordinary accepted the evidence given by Mr Beryar that, on 14 July 2016,

he had gone with the pursuer’s father to the Tonic Bar in Wyndham Street, Hong Kong at

about 11.30pm. He had served the writ on the defender by placing the envelope containing

a copy of the writ in the defender’s hand and telling him that he had been served. The

defender had dropped the envelope on the floor saying “I don’t want this”. He was told by

the pursuer’s father that the documents were official court papers. The defender left the bar

and headed towards the Lan Kwai Fong hotel. The episode was partially recorded on a

mobile phone, images of which were played to the Lord Ordinary. The Lord Ordinary

rejected evidence from the defender that what had happened was that he had been assaulted

by five or six men dressed in black and from whom he had subsequently escaped. He

determined that the defender was not credible or reliable but argumentative and evasive.

The defender had, in his view, refused to answer certain questions and had generally

prevaricated at times.

[4] The Lord Ordinary noted that the High Court had accepted the personal service

described in the affidavits as valid. The defender had failed to discharge the onus, which

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was on him, to establish that it was not. He had led no evidence to state that it was not

effective under Hong Kong law. The challenge made by the defender to the jurisdiction of

the High Court based on invalid service thus failed.

[5] The Lord Ordinary went on to consider whether the defender had been resident in

Hong Kong at the material time. He noted that, in Wendel v Moran 1993 SLT 44, it had been

said that the rules required the defender to have been resident, or at any rate present, in the

foreign territory when the action commenced. The Lord Ordinary held that the defender

had been so resident at the material time. In doing so, he again rejected the evidence of the

defender that, by that time, he had returned to live in Glasgow. He described the defender’s

evidence about this as evasive and commented that the defender had not led any supporting

oral evidence of his residence.

[6] In a revised Note of Argument and in oral submissions, the defender contended,

first, that the pursuer had failed to provide sufficient evidence that the incident at the Tonic

Bar, if proved, amounted to a valid service according to the laws of Hong Kong. In the

absence of evidence of what that law was, the law of Scotland ought to apply. That

necessitated personal service being effected by officers of the court. Secondly, the defender

argued that the Lord Ordinary had erred in holding that the burden of proof had been on

him to prove that he was not resident in Hong Kong at the material time. He referred to

dicta from the commercial judge in Liquidator of Letham Grange v Foxworth Investment 2011

SLT 1152. The burden, it was argued, was on the pursuer to prove both the validity of the

service and the defender’s residence in Hong Kong. The Lord Ordinary had had insufficient

evidence of residence, although the defender accepted that in cross-examination he had said

that he had lived in Hong Kong for 14 months after May or June 2015. He explained that he

had been confused by the nature of the cross-examination and had clarified the position later

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in his evidence. Thirdly, the defender referred to the existence of new evidence in the form

of airline tickets and certain utility bills which, he said, demonstrated his residence in

Scotland at the material time.

[7] In response, the pursuer stated that the Lord Ordinary had been correct in relation to

both service and residence. It had been for the defender to challenge the procedural validity

of the foreign judgment (Gladstone v Lindsay (1868) 6 SLR 71 at 73). The Lord Ordinary noted

that there had been two affidavits accompanying the writ. Any inquiry by this court into the

Hong Kong procedural rules was strictly irrelevant, although consideration of the

procedural rules of Hong Kong, notably Rule 1 of Order 10 on Service, demonstrated that

service, of the nature which occurred in the Tonic Bar, was valid in that jurisdiction. In any

event the defender had not pleaded that there had been a defect of the nature complained of.

The defence at the proof had been that what had happened at the Tonic Bar had been an

assault and therefore public policy considerations dictated that it should not be recognised

as effective service. The pursuer had previously provided the court with two opinions from

a Hong Kong barrister on validity of service. If that validity was to have been challenged,

that could have been done in Hong Kong. Liquidator of Letham Grange (supra) was

distinguishable. It had concerned an unsuccessful attempt to reduce a standard security; the

commercial judge holding that the onus was on the pursuer to prove the grounds. The Lord

Ordinary was correct in holding that the burden of establishing the defender’s residence, or

presence, when the action was commenced had rested upon him. There had been no appeal

in Hong Kong based on a lack of jurisdiction. No reason had been given as to why the Lord

Ordinary’s findings in fact in relation to the material matters were plainly wrong. The new

material, even if competently admitted at this stage, was not of such significance that it

would have affected the Lord Ordinary’s decision.

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[8] This court agrees essentially with the reasoning of the Lord Ordinary. It recognises

that the judgment of a foreign court, which has jurisdiction over a defender by reason of

residence in the foreign country at the material time, may be enforced by decree conform.

The onus is on the challenger to demonstrate that the service or decree is not valid. As was

said by Lord Kinloch in Gladstone v Lindsay (supra at 73):

“The question before us is, whether we are to pronounce a decree-conform, where

there is presented to us the judgment of a competent court ex facie regular and

sufficient. Admittedly, we cannot enter on the merits of the judgment. The party

objecting to our pronouncing a decree-conform must make out to our satisfaction

that the judgment was obtained irregularly and improperly, and in such

circumstances as would make it against justice to give it effect.”

[9] This court may, of course, decline to recognise a judgment where the defender has

had inadequate notice of the foreign proceedings. In this case, however, there was evidence

that what the pursuer had said had happened in the Tonic Bar had indeed occurred. It was

not pleaded as a defence to this action, nor was it submitted to the Lord Ordinary, that if

what the pursuer said had occurred was proved, that did not amount to valid personal

service. In any event, as the pursuer has submitted, the procedural rules of Hong Kong

appear to indicate that service of the nature which occurred is valid in terms of Order 10,

Rule 1.

[10] In relation to the defender’s residence in Hong Kong, again there was evidence

before the Lord Ordinary which entitled him to conclude that he was so resident when the

action was raised and at the time of service. He himself had said that he had moved to an

address in Hong Kong in May or June 2015 and had lived there for a period of 14 months.

He submits that this was an error and that he had corrected himself. But the fact is that

there was evidence from him, and indeed his presence in Hong Kong at the material time,

from which the Lord Ordinary could infer that he was still resident when he was served in

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July 2016. The defender has submitted that the new evidence, which he has proffered in

documentary form and which was not presented to the Lord Ordinary because of certain

legal advice which he had been given, shows that he was not so resident. His explanation

for not tendering this material at the proof does not provide a sufficient basis for introducing

it in the reclaiming motion.

[11] For all these reasons, the court is satisfied that the Lord Ordinary’s reasoning was

correct and that this reclaiming motion must be refused.