HL Deb 21 February 1933 vol 86 cc762-8

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF ONSLOW in the Chair.]

Clause 1:

Power to extend Part I of Act to foreign countries giving reciprocal treatment.

(2) Any judgment of a superior Court of a foreign country to which this Part of this Act extends, other than a judgment of such a Court given on appeal from a Court which is not a superior Court, shall be a judgment to which this Part of this Act applies, if—

  1. (a) it is final and conclusive as between the parties thereto; and
  2. (b) there is payable thereunder a sum of money, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty; and
  3. (c) it is given after the coming into operation of the Order in Council directing that this Part of this Act shall extend to that foreign country.

(3) For the purposes of this section, a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may he pending against it, or that it may still be subject to appeal, in the Courts of the country of the original Court.

VISCOUNT BERTIE OF THAME moved, in paragraph (a) of subsection (2), to leave out "and conclusive". The noble Viscount said: Tautology in private conversation is odious; in an Act of Parliament, I venture to say, it is inexcusable. If the noble and learned Viscount will refer to the dictionary he will find that "final" means "conclusive" and "conclusive" means "final."

Amendment moved— Page 2, line 6, leave out ("and conclusive")—(Viscount Bertie of Thame.)


I am sure the House is always grateful to the noble Viscount for the vigilance with which he surveys every Act of Parliament, and I think we often have to thank him for his labours; but upon the present occasion I am afraid he is not right, and I hope that, when I have explained the circumstances to him, he will see his way to withdrawing the series of Amendments which he has on the Paper. I am not quite sure what dictionary the noble Viscount referred to.


The Oxford Dictionary in the Library.


I have also referred to the Oxford Dictionary in the Library, but there are also a number of dictionaries of legal matters only, and if the noble Viscount will refer to some of these I think he will agree with me that it is necessary to have both these words. In fact, if he will look up the fourth meaning of the word in the Oxford Dictionary he will see why. It is perfectly true that there are many words in the English language which have acquired technical meanings and which are words of art, and there are many legal terms which have consequently got rather different meanings from those which, if you merely looked in the Oxford Dictionary, you would think were the only meanings. It is necessary, as a matter of fact, to have both these meanings, even though some dictionaries show that "final" means "conclusive" and "conclusive" means "final." Owing to a great number of decisions in our Courts, and indeed in a great number of Acts of Parliament, these two words "final" and "conclusive" always find their place in collocation, and I am sorry to say they cannot be separated. I rather agree with the noble Viscount that it would be well if they could.

May I now explain it to him? The expression "final and conclusive" has become a term of art in connection with the enforcement of foreign judgments, and its meaning cannot adequately be represented by the one word "final" for this reason. It is required to express two different ideas. The judgment must be final in the sense that it is not interlocutory. It must also be conclusive in the sense that if an attempt were to be made to litigate the same point between the same parties in the same country, the defendant could defeat the attempt by pleading res judicata—that the point had been decided by the previous judgment. Even a learned Judge once went wrong on this point and therefore the noble Viscount has every excuse. The learned Judge had to deal with a Spanish judgment which was final in the one sense but not in the other, and he gave judgment in favour of enforcing it. If the noble Viscount would like the reference the case is Nouvion versus Freeman, 15 Appeal Cases, page 1. But a strong Court of Appeal reversed this decision and explained the double requirement. It was not enough that it should be final in the first sense, but it must be final and conclusive between the parties.

I have here a text book of the greatest authority, the late, Professor Dicey, in which he goes far to codify the law, and says that a foreign judgment may be enforced if it is final and conclusive, but both words must be used. There is a similar judgment by one of my predecessors in this House, the late Lord Herschell, about 1893 to the same effect. I do not wish to waste your Lordships' time but I would put one further point to my noble friend. Take a judgment, for example, for a weekly payment of 15s. which can be reduced, or increased, by application to the Court. Is that a final judgment? Or take a judgment in personam or in rem. I am sorry to use these technical terms, but I am sure the noble Viscount, who is a distinguished counsel, will appreciate them. For these reasons both words; are required in the three places where the noble Viscount wishes to leave out one of them. But in the fourth case, Clause 8, page 9, line 1, where the noble Viscount wishes to substitute "final" for "conclusive" only one word is required, and that should be "conclusive" and not "final." Here, stress is laid upon the second meaning—namely, conclusive between the parties and not on the first meaning "final" as opposed to interlocutory.

May I say in conclusion, apologising for wearying your Lordships, that these two words are not only extremely well known in all cases of foreign judgments—there are dozensand dozens of decisions on them—but they also come in many Acts of Parliament and also in Colonial Statutes and all the Continental lawyers know them perfectly well? As this is a measure which will be greatly Scanned by foreign lawyers it would, I think, give them great uneasiness and cause great difficulty in the Courts if we dropped the word "conclusive" or the Word "final." This is one of those cases where, unfortunately we have to drive in double harness, and I am sorry I cannot accept the Amendment.


Of course, after what my noble and learned friend has said I should not think of pressing the Amendment standing in my name. I should like to express my gratitude to him for the very comprehensive reasons he has given.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clauses 2 and 3 agreed to.

Clause 4:

Cases in which registered judgments must, or may, he set aside.

4.—(1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment—

(b) may be set aside if the registering Court is satisfied that the matter in dispute in the proceedings in the original Court had previously to those proceedings been the subject of a final and conclusive judgment by a Court having jurisdiction in the matter.

THE LORD CHANCELLOR moved, in paragraph (b) of subsection (1), to leave out "those proceedings" and insert "the date of the judgment in the original Court." The noble and learned Viscount said: This is a formal Amendment. I am sorry to have to trouble your Lordships with it. It is to remove an ambiguity which has been discovered in the wording of the paragraph. The provision enables the registering Court to set aside the registration if the matter in dispute in the proceedings in the original Court had, prevously to those proceedings, been the subject of a final and conclusive judgment by a Court having jurisdiction in the matter. The expression "previously to those proceedings" is intended to mean previously to the judgment of the original Court in those proceedings, but it has been pointed out be one of the distinguished lawyers in the Foreign Office that it might also mean "previously to the commencement of those proceeding." The ambiguity ought to be removed. I have consulted the learned Lord Justice Greer who was responsible for the drafting of the Bill, and he agrees that the Amendment is necessary in order to avoid a clash between the Bill and the proposed Conventions. I beg to move.

Amendment moved— Page 5, line 32 leave out ("those proceedings") and insert ("the date of the judgment in the original Court.")—(The Lord, Chancellor.)

On Question, Amendment agreed to.


On this clause I want to ask the noble and learned Lord Chancellor if he will be good enough to answer a few questions. The queries I want to raise are upon subsection (2)—page 6. Subsection (2) provides for when the Court should begin to have jurisdiction and is a list of the conditions under which a judgment against the defendant can he registered here. Paragraph (iv) provides that the Court can be deemed to have jurisdiction if the judgment debtor, being a defendant in the original Court, had an office or place of business in the country of that Court and at the time when the proceedings were instituted was resident in the country of that Court, and the proceedings in the Court were in respect of transactions to or at that office. That appears to me to somewhat narrow the ordinary way in which foreign judgments are enforced.

For instance, if an Englishman went to France and without having an office or place of business borrowed money from a Frenchman for the purpose of paying his hotel bill, and the Frenchman obtained judgment against him in a French Court, there would seem to be no reason why such a judgment as that should not be registered here. The great point about this Bill is, I understand, that it is to be reciprocal—that is to say, you would not register judgments here unless you give reciprocal rights here and so forth, and there is no doubt that in that case the English Court's judgment for money borrowed here by a foreigner on a contract to be performed here would be served upon him out of the jurisdiction and you would get judgment against him. It would seem rather to weaken the operation of the measure that such a judgment as that should not be capable of being registered. I only desire the noble and learned Lord Chancellor to consider this.


I am grateful to my noble and learned friend for raising this point. I ventured to send him a copy of the Bill and asked him to give us his help. It is a highly technical matter which he has raised and I do not propose to give an opinion upon it straight off. It would be absurd to do so, particularly as this is a Bill which will be very carefully scanned in foreign countries and we must get it right. Therefore, if the noble and learned Lord will allow me to say so I think what he has stated is probably right, but I would like to look into it to see if it in any way runs contrary to the proposed Conventions. We have Conventions provided for with Belgium, Germany and France and of course we must not put anything in this Bill which is contrary to the proposed Conventions. Therefore I would like, if the noble and learned Lord will allow me, to consider the matter with my advisers and communicate with him and if it is necessary or possible I will bring up an Amendment on Report.


I am very much obliged to the noble and learned Lord Chancellor. That will meet my point. No doubt your Lordships will remember that on the terms of the Bill you cannot sue on a debt which is otherwise capable of registration.

Clause 4 agreed to.

Remaining clauses agreed to.