The claimant, a Malaysian electricity company, obtained judgment against the defendants, two companies incorporated in the United Kingdom, for breaches of agreements relating to a joint venture for the development, manufacture and sale of electric vehicles. The parties subsequently reached a settlement agreement in respect of the defendants’ debts but the claimant retained the right, in the event of default by the defendants, to proceed with execution of the judgments. The defendants defaulted on the settlement agreement and the claimant sought permission to execute the judgments, such permission being required under Malaysian law where six years or more had lapsed since the date of the judgments. Permission was refused at first instance but was later granted by the Malaysian Court of Appeal. The claimant then applied to the English High Court to register the judgments pursuant to section 9(1) of the Administration of Justice Act 1920, so as to be able to enforce them in England and Wales as if they were judgments of that court. The defendants resisted the application on the grounds that registration was barred by section 9(2)(e), which applied where the judgment debtor satisfied the court either that an appeal against the judgments was pending or that it was entitled and intended to appeal. At the material time there had been no appeal against the judgments themselves, although the defendants intended to bring an appeal against the decision of the Malaysian Court of Appeal permitting their execution. Any such appeal lay to the Federal Court of Malaysia, which would require the permission of that court and, the defendants not having sought such permission within the applicable time limit, would also require the court to grant an extension of time. The judge rejected the defendants’ contentions and ordered registration of the judgments.
On the defendants’ application to set aside the judge’s order—
Held, application refused. The “judgment” referred to in section 9(2)(e) of the Administration of Justice Act 1920 was the judgment that was the subject of the registration application. Since there was no appeal against the judgments themselves, but only an intended appeal against the Malaysian Court of Appeal's declaration that the judgments could be enforced, section 9(2)(e) was not engaged. Accordingly, there was no bar to registration and it would be wrong to set aside the registration order on the basis of the proposed appeal. However, enforcement of the judgments was stayed pending the decision of the Federal Court of Malaysia on the defendants’ applications and, if it granted leave to appeal out of time, until the conclusion of the appeal proceedings (paras 42, 70, 77–79).
Per curiam. A “pending” appeal for the purposes of section 9(2)(e) of the 1920 Act is one that is awaiting judgment. An appeal is not pending for that purpose where all that is awaiting judgment is an application for an extension of time and for leave to appeal. Similarly, the better view is that a judgment debtor cannot have an entitlement to appeal, so as to fall within the other limb of section 9(2)(e), if it still needs to obtain permission to pursue the appeal. Further, even if an entitlement may be said to exist in such circumstances, if the foreign jurisdiction imposes a time limit which has elapsed, such that the intended appeal can only be pursued with permission to appeal out of time, the judgment debtor cannot be said to be “entitled” to appeal until it has first overcome that hurdle (paras 43, 49, 54).
Richard Samuel (instructed by Trowers and Hamlins llp) for the applicant.
Steven Barrett (instructed by Pitmans llp) for the respondents.