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The appellant (NML) is a Cayman Island Company.
It is an affiliate of a New York based hedge fund of a type sometimes described as a vulture fund.
Vulture funds feed on the debts of sovereign states that are in acute financial difficulty by purchasing sovereign debt at a discount to face value and then seeking to enforce it.
This appeal relates to bonds issued by the Republic of Argentina in respect of which, together with all its other debt, Argentina declared a moratorium in December 2001.
Between June 2001 and September 2003 affiliates of NML purchased, at a little over half their face value, bonds with a principal value of US$ 172,153,000 (the bonds).
On 11 May 2006, NML, as beneficial owner, obtained summary judgment on the bonds for a total, including interest, of US$ 284,184,632.30, in a Federal Court in New York.
NML brought a common law action on that judgment in this jurisdiction, and succeeded before Blair J in the Commercial Court.
That judgment was reversed by the Court of Appeal, which held that Argentina is protected by state immunity.
The question raised by this appeal is whether that finding was correct.
The bonds and the New York Judgment
The bonds were issued by Argentina in February and July 2000 pursuant to a Fiscal Agency Agreement between Argentina and Bankers Trust Company.
The terms applicable to the bonds were contained in the Agreement and the bonds themselves, both of which were expressly governed by the law of New York.
In November 2003, having declared events of default under the Fiscal Agency Agreement, relying on the moratorium and Argentinas subsequent failure to pay interest on the bonds, NML commenced proceedings against Argentina in the United States District Court, Southern District of New York, to recover principal and interest due under the bonds.
Jurisdiction was founded on an express submission to New York jurisdiction in the Fiscal Agency Agreement.
Argentina appeared and defended the proceedings.
Judge Thomas P Griesa granted NMLs motion for summary judgment.
Argentina does not, in these proceedings, challenge that judgment.
The proceedings in this jurisdiction
In order to serve a foreign sovereign state it is necessary to obtain the permission of the court to serve the claim form out of the jurisdiction.
On 14 March 2008 NML applied ex parte for this permission.
The witness statement supporting this application, and the draft particulars of claim exhibited to it, alleged two reasons why Argentina was not entitled to state immunity.
The first was that under clause 22 of the Fiscal Agency Agreement Argentina had waived, and agreed not to plead, any claim that it might have to state immunity.
The second was that NMLs claim was founded on the Fiscal Agency Agreement and the bonds, and consequently constituted proceedings relating to a commercial transaction for the purposes of the State Immunity Act 1978 (the 1978 Act).
On 2 April 2008, David Steel J granted NML permission to serve Argentina out of the jurisdiction, and service was duly effected.
On 5 September 2008 Argentina applied under CPR 11(1) to set the order for service aside on the ground that Argentina enjoyed state immunity from the jurisdiction of the English courts.
At the hearing of this application before Blair J NML conceded that it could rely, at first instance, on neither of the grounds for alleging that Argentina did not enjoy immunity that had been advanced in support of the application to serve out.
Instead NML sought to rely first on the provisions of section 31 of the Civil Jurisdiction and Judgments Act 1982 (the 1982 Act) and secondly on alternative provisions as to waiver and jurisdiction in the bonds themselves.
I shall follow the example of Aikens LJ in annexing in Appendix 1 the relevant provisions of section 31, in Appendix 2 Article 20 of the European Convention on State Immunity (ECSI), to which I shall refer in due course, and in Appendix 3 the relevant terms of the bonds.
Argentina contended that it was not open to NML to invoke alternative grounds for contending that immunity did not apply when these had not been relied on in the original ex parte application.
NMLs proper course was to make a fresh application for permission to serve Argentina out of the jurisdiction.
Blair J rejected this procedural objection and found in favour of NML on both the new substantive points [2009] EWHC 110 (Comm); [2009] QB 579.
The Court of Appeal reversed Blair J on all three issues [2010] EWCA Civ 41; [2011] 1 QB 8.
Aikens LJ gave the only reasoned judgment, with which Mummery and Elias LJJ agreed.
The issues
The following issues are raised by this appeal: (1) Whether the present proceedings for the recognition and enforcement of the New York courts judgment are proceedings relating to a commercial transaction within the meaning of section 3 of the State Immunity Act 1978. (As I shall explain, this issue was not open to NML in the courts below). (2) Whether Argentina is prevented from claiming state immunity in respect of the present proceedings by Section 31 of the Civil Jurisdiction and Judgments Act 1982. (3) Whether the bonds contain a submission to the jurisdiction of the English court in respect of these proceedings within the meaning of section 2 of the State Immunity Act 1978. (4) Whether NML was entitled to raise at the inter partes hearing the two new points not previously relied on in the ex parte application for permission to serve Argentina out of the jurisdiction. (5) Whether, having regard to the answers to the above questions, Argentina is entitled to claim state immunity in respect of these proceedings.
The resolution of the first two issues turns on statutory interpretation.
This must be carried out in the context of simultaneous developments in the law of sovereign immunity and of the recognition of foreign judgments.
State immunity
At the beginning of the 20th century state immunity was a doctrine of customary international law, applied in England as part of the common law.
Under this doctrine a state enjoyed absolute immunity from suit in the court of another state.
The property of the state was also immune from execution.
Because a state could not be sued, there was no procedural provision in this jurisdiction for service of process on a foreign state.
The Court of Appeal had, however, occasion to consider the law of state immunity when proceedings in rem were served on a mail packet owned by Belgium which had been involved in a collision in the case of The Parlement Belge (1880) LR 5 PD 197.
The Court held that the vessel, being the property of a foreign sovereign state, was immune from legal process.
Giving the judgment of the court Brett LJ explained the reason for this immunity, at pp 207 208 and 220: From all these authorities it seems to us, although other reasons have sometimes been suggested, that the real principle on which the exemption of every sovereign from the jurisdiction of every court has been deduced is that the exercise of such jurisdiction would be incompatible with his regal dignity that is to say, with his absolute independence of every superior authority.
By a similar examination of authorities we come to the conclusion, although other grounds have sometimes been suggested, that the immunity of an ambassador from the jurisdiction of the courts of the country to which he is accredited is based upon his being the representative of the independent sovereign or state which sends him, and which sends him upon the faith of his being admitted to be clothed with the same independence of and superiority to all adverse jurisdiction as the sovereign authority whom he represents would be.
It has been held that an ambassador cannot be personally sued, although he has traded; and in both cases because such a suit would be inconsistent with the independence and equality of the state which he represents.
If the remedy sought by an action in rem against public property is, as we think it is, an indirect mode of exercising the authority of the court against the owner of the property, then the attempt to exercise such an authority is an attempt inconsistent with the independence and equality of the state which is represented by such an owner.
The property cannot upon the hypothesis be denied to be public property; the case is within the terms of the rule; it is within the spirit of the rule; therefore, we are of opinion that the mere fact of the ship being used subordinately and partially for trading purposes does not take away the general immunity.
In Mighell v Sultan of Johore [1894] 1 QB 149 leave to effect substituted service on the Sultan of Johore in an action in personam was set aside on the ground that he enjoyed sovereign immunity.
To an argument that he had waived this immunity, the court held that the only way that a sovereign could waive immunity was by submitting to jurisdiction in the face of the court as, for example, by appearance to a writ.
If the sovereign ignored the issue of the writ, the court was under a duty of its own motion to recognise his immunity from suit.
In Compania Naviera Vascongado v Steamship Cristina [1938] AC 485 the House of Lords confirmed that a state owned ship that was used for public purposes could not be made the subject of proceedings in rem.
Lord Atkin started his judgment with the following definition of state immunity, at p 490: The foundation for the application to set aside the writ and arrest of the ship is to be found in two propositions of international law engrafted into our domestic law which seem to me to be well established and to be beyond dispute.
The first is that the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.
The second is that they will not by their process, whether the sovereign is a party to the proceedings or not, seize or detain property which is his or of which he is in possession or control.
There has been some difference in the practice of nations as to possible limitations of this second principle as to whether it extends to property only used for the commercial purposes of the sovereign or to personal private property.
In this country it is in my opinion well settled that it applies to both.
Three members of the House questioned, however, whether state immunity would protect a vessel that was used for the purposes of commercial trade.
This reflected a growing recognition around the world of the restrictive doctrine of state immunity under which immunity related to governmental acts in the exercise of sovereign authority (acta jure imperii) but not to commercial activities carried on by the state (acta jure gestionis).
The absolute doctrine of state immunity could pose a disincentive to contracting with a state and some states attempted to avoid this disadvantage by including in contracts an agreement not to assert state immunity.
The English courts held, however, that such a purported waiver was ineffective.
Immunity could only be lost by a submission to the jurisdiction when it was invoked, and not earlier see Duff Development Co v Kelantan Government [1924] AC 797 and Kahan v Pakistan Federation [1951] 2 KB 1003.
In Rahimtoola v Nizam of Hyderabad [1958] AC 379, 422 Lord Denning expressed, obiter, the view that judicial immunity should not apply to commercial transactions, but the other members of the House expressly dissociated themselves from this view, because the point had not been argued.
It was not until nearly I shall deal with the intervention of Parliament in the form of the 1978 and twenty years later that Lord Denning MR was able to carry the rest of the Court of Appeal with him in applying the restrictive doctrine of state immunity in Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529.
This decision was approved by the House of Lords in I Congreso del Partido [1983] 1 AC 244.
1982 Acts when I deal specifically with the first two issues.
Enforcement of foreign judgments
Prior to the 1982 Act the common law provided two alternative remedies to a plaintiff who had obtained a judgment against a debtor in a foreign jurisdiction.
He could bring a claim on the judgment or he could bring a claim on the cause of action in respect of which he had obtained the judgment.
The former did not merge in the latter.
In order to establish jurisdiction to sue on the judgment the plaintiff had to serve a writ in personam in accordance with the normal procedure.
The existence of a foreign judgment was not a ground upon which permission could be obtained to serve a writ out of the jurisdiction.
The plaintiff had to establish that a number of conditions were satisfied in order to claim successfully on the foreign judgment.
In particular, he had to establish that the foreign court had had jurisdiction over the defendant in accordance with the English rules of private international law and the judgment had to be final and conclusive on the merits.
Part II of the Administration of Justice Act 1920 (the 1920 Act) provides an alternative means of enforcing, in the United Kingdom, the judgment of a superior court in another part of His Majestys dominions.
Section 9 of that Act provides that, subject to the conditions there specified, the High Court may, if in all the circumstances of the case they think it is just and convenient that the judgment should be enforced in the United Kingdom order the judgment to be registered.
The conditions include a requirement that the foreign court should have had jurisdiction and preclude registration where the judgment is in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering court.
These conditions plainly preclude the registration of a judgment against a defendant who, under English law, is subject to state immunity.
Prior to 1978 there is no record, so far as I am aware, of any plaintiff having attempted to register such a judgment.
The Foreign Judgments (Reciprocal Enforcement) Act 1933 was passed to make provision for the enforcement in the United Kingdom of judgments given in foreign countries that accord reciprocal treatment to judgments given in the United Kingdom.
Section 2 of this Act provides for registration of such judgments on specified conditions, subject to the right of the judgment debtor to apply to have the judgment set aside.
The section provides that for the purposes of execution a registered judgment is to be treated as if it were a judgment of the registering court.
Section 4 makes provision for an application to set aside a registered judgment.
The section includes a provision that the judgment shall be set aside if the registering court is satisfied that the foreign court had no jurisdiction in the circumstances of the case.
The section further provides by subsection (3)(c) that the foreign court shall not be deemed to have had jurisdiction if the judgment debtor, being a defendant in the original proceedings, was a person who under the rules of public international law was entitled to immunity from the jurisdiction of the courts of the country of the original court and did not submit to the jurisdiction of that court.
This last provision is significant in the present context in that it implicitly provides for the registration of a judgment against a state, a state entity or an individual who was subject to state immunity in the foreign country if there has been a submission to the foreign jurisdiction.
The 1933 Act contains no provision, however, that permits enforcement of such a judgment against property owned by a state.
Furthermore section 2(1)(b) of the Act precludes recognition of a judgment that cannot be enforced by execution in the country of the original court, and section 4(1)(a)(v) requires the registration of a judgment to be set aside if enforcement would be contrary to the public policy of the registering court.
So long as the absolute doctrine of state immunity prevailed in the United Kingdom it is hard to envisage registration of a foreign judgment against a judgment debtor who had been entitled to state immunity, but who had submitted to the foreign jurisdiction, except perhaps a diplomat in respect of whom his state had waived diplomatic immunity.
There does not seem to be any recorded instance of such a case.
Issue 1: are the present proceedings proceedings relating to a commercial transaction within the meaning of the State Immunity Act 1978?
The 1978 Act had its origin in the need to give effect to the ECSI, but as the Bill passed through Parliament the scope of the legislation was widened so as to make provisions in relation to state immunity having effect on all states, and not just those party to the Convention.
Fox on The Law of State Immunity 2nd ed (2008), at p 241 and following, describes the genesis of the Act.
Section 3(1) of the 1978 Act provides: A State is not immune as respects proceedings relating to (a) a commercial transaction entered into by the state.
Section 3(3)(b) defines commercial transaction as including any loan or other transaction for the provision of finance.
In view of this definition it is not surprising that it is common ground that the action in respect of which NML obtained judgment in New York was a proceeding relating to a commercial transaction within the meaning of section 3(1)(a).
Permission to effect service on Argentina out of the jurisdiction was obtained from David Steel J on the basis of an averment that the common law action that was to be brought in England on the New York judgment was also a proceeding relating to a commercial transaction.
However before Blair J and the Court of Appeal NML conceded that this averment was not open to them short of the Supreme Court.
This was because of two reasoned decisions, one in the High Court and one in the Court of Appeal which, albeit that the latter was obiter, constrained NML to accept that, for the purposes of section 3(1)(a), the action that NML was seeking to bring was a proceeding relating to the New York judgment and not to the transaction to which that judgment related.
Before this Court Mr Sumption QC has challenged these authorities.
Issue 1 turns on the question of whether they were rightly decided.
The first of these cases is AIC Ltd v Federal Government of Nigeria [2003] EWHC 1357 (QB).
AIC registered under the 1920 Act a judgment that they had obtained in Nigeria against the Nigerian Government in relation to what AIC alleged to be a commercial transaction.
The Nigerian Government applied to have the registration set aside on the ground that registration was an adjudicative act and that Nigeria was protected by state immunity by reason of section 1 of the 1978 Act.
AIC argued that their application to register the judgment was a proceeding relating to a commercial transaction within section 3(1)(a).
Stanley Burnton J rejected this submission.
His reasoning appears in the following short passage in para 24 of his judgment In my judgment, the proceedings resulting from an application to register a judgment under the 1920 Act relate not to the transaction or transactions underlying the original judgment but to that judgment.
The issues in such proceedings are concerned essentially with the question whether the original judgment was regular or not.
Stanley Burnton J held that this conclusion was supported by two matters.
The first was that section 9 of the 1978 Act excludes immunity as respects proceedings which relate to [an] arbitration where the state has entered into a written arbitration agreement.
As most arbitrations relate to commercial transactions, section 9 would be unnecessary if a claim in respect of an arbitration constituted a proceeding relating to the commercial transaction to which the arbitration related, for that would fall within 3(1)(a).
The second matter was that it would be illogical to exempt from immunity the enforcement of a judgment in relation to a commercial transaction, but not the enforcement of a judgment in relation to any of the other matters in respect of which the 1978 Act provided exceptions to immunity under sections 3 to 11 of the Act.
Stanley Burnton J remarked at para 30 that it was unsurprising that the defendants were immune from proceedings for the registration of the Nigerian judgment: the underlying principle of the State Immunity Act is that a state is not immune from the jurisdiction of the courts of the United Kingdom if it enters into commercial transactions or undertakes certain activities having some connection with this jurisdiction.
Purely domestic activities of a foreign state are not the subject of any exception to immunity.
Sections 3(1)(b), 4, 5, 6, 7, 8 and 11 all contain territorial qualifications to the exceptions to immunity to which they relate.
Section 3(1)(a) does not include any such qualification, but even there the claimant wishing to bring proceedings must establish a basis for jurisdiction under CPR Part 6.20, normally under paragraphs (5) or (6), relating to contractual claims.
Stanley Burnton J went on to observe that Lord Denning MR when advancing the restrictive doctrine of state immunity in Rahimtoola v Nizam of Hyderabad [1958] AC 379, 422, in Thai Europe Tapioca Service Ltd v Government of Pakistan, Directorate of Agricultural Supplies [1975] 1 WLR 1485, 1491 and in Trendtex Trading v Bank of Nigeria [1977] 1 QB 529, 558 had emphasised the significance not merely of the fact that the proceedings related to a commercial transaction, but that the transaction was connected with the United Kingdom.
A similar issue to that considered by Stanley Burnton J arose in Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2005] EWHC 2437 (Comm); [2006] 1 Lloyds Rep 181.
There the relevant issue was whether a claim to enforce an arbitration award constituted proceedings relating to the transaction that gave rise to the award for the purposes of section 3(1)(a).
Gloster J followed Stanley Burnton Js reasoning in holding that it did not.
Her decision on the point was obiter, but it received reasoned approval, also obiter, when the case reached the Court of Appeal [2006] EWCA Civ 1529; [2007] QB 886.
The court held at para 137: In our view the expression relating to is capable of bearing a broader or narrower meaning as the context requires.
Section 3 is one of a group of sections dealing with the courts' adjudicative jurisdiction and it is natural, therefore, to interpret the phrase in that context as being directed to the subject matter of the proceedings themselves rather than the source of the legal relationship which has given rise to them.
To construe section 3 in this way does not give rise to any conflict with section 9, which is concerned with arbitration as the parties' chosen means of resolving disputes rather than with the underlying transaction.
In our view AIC Ltd v Federal Government of Nigeria was correctly decided and Gloster J was right to follow it in the present case.
I agree with the Court of Appeal that the expression relating to is capable of bearing a broader or narrower meaning as the context requires.
I disagree, however, with their conclusion as to the relevant context.
Sections 1 to 11 of the 1978 Act are a comprehensive statement of the scope of state immunity under the law of the United Kingdom.
Section 3(1)(a) makes it plain that the United Kingdom applies the restrictive doctrine of state immunity.
The context in which the question of the meaning of relating to has arisen in this case is the issue of whether Argentina is or is not protected by state immunity against the proceedings that NML seek to bring.
The object of bringing these proceedings is to enforce the New York judgment.
Argentina has not suggested that (subject to the issue of immunity) these proceedings did not fall within CPR 6.20(9), which provides for service out of the jurisdiction if a claim is made to enforce any judgment or arbitral award.
The only issue is whether Argentina is immune from the claim.
Whether a state is immune from such a claim should, under the restrictive doctrine of state immunity, depend upon the nature of the underlying transaction that has given rise to the claim, not upon the nature of the process by which the claimant is seeking to enforce the claim.
When considering whether a state is entitled to immunity in respect of a claim to enforce a foreign judgment the question does the claim constitute proceedings relating to a commercial transaction? can only be given a meaning that is sensible if relating to is given a broad, rather than a narrow, meaning.
The proceedings relate both to the foreign judgment and to the transaction underlying that judgment, but in the context of restrictive state immunity it only makes sense to focus on the latter.
The argument to the contrary accepted by Stanley Burnton J in AIC proceeds as follows.
There is a distinction between the adjudicative and the executionary stages of these proceedings.
First NML has to establish liability in this jurisdiction and then proceed to attempt to levy execution.
The question is whether Argentina enjoys immunity from the adjudicative stage.
That stage involves the conversion of the New York judgment into an English judgment.
The proceedings to effect this conversion do not turn on the nature of the underlying transaction, but on whether the judgment in respect of that transaction was regularly obtained.
Thus those proceedings do not relate to the underlying transaction.
The fallacy in this argument is that the issue raised in the present proceedings is not the regularity of the New York judgment but whether Argentina is immune to an action on that judgment.
Mr Howard QC put the matter more accurately at para 15 of his written case: It is important to bear in mind that the issue in these proceedings is not whether the English court had jurisdiction to entertain proceedings on the bonds.
It is common ground that it did not.
Rather, the issue is whether the present proceedings for the recognition and enforcement of the New York judgment are proceedings relating to that judgment, or are, instead, proceedings relating to a commercial transaction entered into by Argentina within the meaning of section 3(1)(a) on the grounds that the New York proceedings on which the New York judgment was based were proceedings relating to a commercial transaction entered into by Argentina (ie relating to the bonds).
The issue that Mr Howard identifies has to be answered in order to determine whether, under English law, Argentina enjoys state immunity in relation to these proceedings.
That question ought to be answered in the light of the restrictive doctrine of state immunity under international law.
There is no principle of international law under which state A is immune from proceedings brought in state B in order to enforce a judgment given against it by the courts of state C, where state A did not enjoy immunity in respect of the proceedings that gave rise to that judgment.
Under international law the question of whether Argentina enjoys immunity in these proceedings depends upon whether Argentinas liability arises out of acta jure imperii or acta jure gestionis.
This involves consideration of the nature of the underlying transaction that gave rise to the New York judgment.
The fact that NML is seeking to enforce that judgment in this jurisdiction by means of an action on the judgment does not bear on the question of immunity.
This leads to the conclusion that the context in which the issue of the meaning of the words relating to arises in this case requires one to look behind the New York judgment at the underlying transaction.
I must deal with the matters that Stanley Burnton J considered supported the narrower interpretation of relating to in AIC Ltd v Federal Government of Nigeria.
The first is that section 9 would not be needed if section 3(1)(a) applies to proceedings to enforce an arbitration award.
It is true, if relating to is given the wider meaning, that the circumstances covered by section 9 of the 1978 Act will often overlap with the circumstances covered by section 3(1)(a), but this will not In order to deal with the second matter to which Stanley Burnton J referred, always be the case.
Not all arbitrations relate to commercial transactions.
Furthermore, as Mr Sumption pointed out, section 9 relates not only to proceedings to enforce an award, but to all proceedings relating to an arbitration to which a state is party, and establishes jurisdiction of the English court in relation to all such proceedings.
it is necessary to quote the point that he made in his own words at para 26: Furthermore, if Parliament had intended the State Immunity Act to include an exception from immunity relating to the registration of foreign judgments, it would have been illogical to limit it to commercial transactions entered into by the state (which is the consequence of AICs contentions), with no provision for the registration of foreign judgments where the exception to immunity before the original court was the equivalent of one of the other exceptions to immunity in that Act.
In argument this point was, I believe, misunderstood.
It was assumed that Stanley Burnton J was suggesting that if a foreign judgment relating to a commercial transaction were enforceable here, so logically should a foreign judgment dealing with one of the other matters specifically exempted from immunity under the 1978 Act.
Thus, for instance, if in New York a judgment were given against Argentina in respect of personal injury caused to the claimant in the United Kingdom, one would expect that judgment to be enforceable here see section 5 of the 1978 Act.
Mr Sumptions answer was that the judgment would in fact be enforceable here.
An action on the New York judgment would be an action in respect of the personal injury caused in the United Kingdom.
I believe that we all misunderstood Stanley Burnton Js point.
It was not that it would be logical to be able to enforce here a New York judgment dealing with a personal injury caused in the United Kingdom, but a New York judgment where there was an exemption from immunity equivalent to that provided by section 5 ie a New York judgment in respect of a personal injury caused in New York.
As to that point, I agree with Stanley Burnton J.
It was illogical that the 1978 Act did not make provision for the enforcement in this country of such a judgment.
This was because the draftsman of the 1978 Act did not deal generally with foreign judgments.
That omission was made good by section 31 of the 1982 Act, as I shall show.
The other matter that impressed Stanley Burnton J was the desirability of giving section 3(1)(a) an interpretation which would have the effect of requiring a link between the defendant states commercial transaction and the United Kingdom jurisdiction.
He drew attention to the existence of such a link in the other exemptions to state immunity in the 1978 Act and to dicta of Lord Denning.
It is true that the need for such a link receives support from dicta of Lord Denning in the judgments prior to 1978 in which he sought to introduce the restrictive doctrine of state immunity into English law.
Thus in Thai Europe Tapioca Service v Government of Pakistan he said, [1975] 1 WLR 1485, 1491 1492: a foreign sovereign has no immunity when it enters into a commercial transaction with a trader here and a dispute arises which is properly within the territorial jurisdiction of our courtsBy this I do not mean merely that it can be brought within the rule for service out of the jurisdiction under RSC Ord, 11, r 1.
I mean that the dispute should be concerned with property actually situate within the jurisdiction of our courts or with commercial transactions having a most close connection with England, such that, by the presence of parties or the nature of the dispute, it is more properly cognisable here than elsewhere.
Fox on The Law of State Immunity at p 269 describes the academic criticism of what was alleged to be confusion by Lord Denning of the doctrine of state immunity with principles of extra territorial jurisdiction.
When Parliament enacted the 1978 Act the exemption from immunity under section 3(1)(a) in respect of proceedings relating to a commercial transaction entered into by the state was not qualified by any requirement for a link between the transaction and the United Kingdom.
This was not accidental.
The United Kingdom ratified the ECSI on the same day that the 1978 Act came into force, and the Act was designed to give effect to the Convention.
The original Bill followed closely the structure of the ECSI.
Its scope was, however, significantly enlarged by amendment.
The ECSI only applies as between contracting states.
The 1978 Act was expanded so as to apply to all states.
The ECSI does not give effect to the restrictive doctrine of sovereign immunity.
Article 24 provides, however, that any state may declare that its courts shall be entitled to entertain proceedings against another Contracting State to the extent that its courts are entitled to entertain proceedings against States not party to the present Convention.
Such declaration shall be without prejudice to the immunity from jurisdiction which foreign States enjoy in respect of acts performed in the exercise of sovereign authority (acta jure imperii).
The United Kingdom made such a declaration at the time of ratification of the Convention.
In Kuwait Airways Corporation v Iraqi Airways Corporation [1995] 1 WLR 1147, 1158 Lord Goff, with whom the rest of the Committee agreed, observed that the declaration: must have been intended to recognise the inapplicability in English law of the principle of sovereign immunity in cases in which the sovereign was not acting jure imperii, as had by then been recognised both in The Philippine Admiral [1977] AC 373 and in the Trendtex case [1977] QB 529, though the authoritative statement of the law by Lord Wilberforce in I Congreso del Partido [1983] 1 AC 244, 262, was not then available.
At all events, the consequential exception included in section 3 of the Act of 1978 related to commercial transactions, though in section 3(3) the expression commercial transactions is very broadly defined.
I can see no justification for giving section 3(1)(a) a narrow interpretation on the basis that it is desirable to restrict the circumstances in which it operates to those where the commercial transaction has a link with the United Kingdom.
The restrictive doctrine of sovereign immunity does not restrict the exemption from immunity to commercial transactions that are in some way linked to the jurisdiction of the forum.
For these reasons I have concluded that Stanley Burnton Js decision on this point in AIC and the Court of Appeals approval of it in Svenska was erroneous.
By reason of section 3(1)(a) of the 1978 Act Argentina is not immune from the proceedings that NML have commenced in this jurisdiction.
My conclusion accords with the decisions on the identical points of the Quebec Court of Appeal and the Supreme Court of Canada in Kuwait Airways Corporation v Republic of Iraq [2009] QCCA 728; [2010] SCC 40, [2010] 2 SCR 571.
Mr Howard relied upon the approaches taken in Holland v Lampen Wolfe [2001] 1 WLR 1573, 1587, per Lord Millett, in Australian Competition and Consumer Commission v P T Garuda Indonesia Ltd (2010) 269 ALR 98, paras 105 137 and Bouzari et al v Attorney General of Canada et al (Bouzari v Iran (Islamic Republic)) [2004] 243 DLR (4th) 406, para 51.
None of these cases concerned, however, the meaning of relating to in the context of an action on a foreign judgment.
Such an action is sui generis and I did not find the authorities in question of assistance.
For these reasons I differ from the Court of Appeal on the answer to the first issue.
My conclusion is that the present proceedings are proceedings relating to a commercial transaction within the meaning of section 3 of the 1978 Act.
The conclusion that I have reached resolves an issue that may not have occurred to the draftsman of the 1978 Act or to Parliament when enacting it.
While section 9 of the Act makes express provision for arbitration awards, the Act makes no mention of proceedings in relation to foreign judgments against states, other than Part II, which deals with judgments against the United Kingdom in the courts of other states party to the ECSI; there have been, in fact, only 8 ratifications of that Convention.
Prior to 1978 there had been no attempts to enforce in the United Kingdom foreign judgments against states.
As I have explained the 1920 and the 1933 Acts gave little scope for registering foreign judgments against states and there is no recorded instance of an attempt to do this before 1978.
In 1978 the Rules of Court made no provision for impleading a foreign sovereign, no doubt reflecting the previous absolute doctrine of state immunity.
Section 12(1) of the 1978 Act made provision for service on a state and section 12(7) made it plain that such service required permission, which could only be granted in accordance with the rules of court governing service out of the jurisdiction.
There was no provision in 1978 for service out of the jurisdiction of a claim to enforce a judgment.
In these circumstances it is perhaps not surprising that the Act made no express provision in relation to proceedings to enforce foreign judgments, other than judgments against the United Kingdom covered by the ECSI.
My decision on the first issue may make the other three issues academic, but they were fully argued and I propose to deal with them, not least because other members of the Court may not agree with me on the first issue.
Issue 2: Is Argentina prevented from claiming state immunity in respect of the present proceedings by section 31 of the Civil Jurisdiction and Judgments Act 1982?
The primary object of the 1982 Act was to give effect to the Brussels Convention of 1968.
This Convention made provision for the reciprocal recognition and enforcement of judgments.
The application of section 31 was not, however, restricted to the states who were parties to that Convention.
The following are the most significant provisions of that section: (1) A judgment given by a court of an overseas country against a state other than the United Kingdom or the state to which that court belongs shall be recognised and enforced in the United Kingdom if and only if (a) it would be so recognised and enforced if it had not been given against a state; and (b) that court would have had jurisdiction in the matter if it had applied rules corresponding to those applicable to such matters in the United Kingdom in accordance with sections 2 to 11 of the State Immunity Act 1978. (4) Sections 12, 13 and 14(3) and (4) of the State Immunity Act 1978 (service of process and procedural privileges) shall apply to proceedings for the recognition or enforcement in the United Kingdom of a judgment given by the court of an overseas country (whether or not that judgment is within subsection (1) of this section) as they apply to other proceedings.
It is NMLs case that section 31 provides comprehensively for the recognition and enforcement of the foreign judgments to which it applies.
If this is correct the first issue ceases to be of relevance but for the possible impact of the fourth issue.
My conclusion in relation to the first issue is, however, entirely in harmony with NMLs case on the second issue.
Blair J found in favour of NML on this issue, but his decision was reversed by the Court of Appeal.
If NMLs interpretation of section 31 is correct, it effected an addition to the categories of exemption from state immunity set out in the 1978 Act.
Aikens LJ could not accept that an extension would have been effected in this way, without any express amendment to the 1978 Act.
He interpreted section 31 as imposing an additional requirement to exemption from immunity where an action was brought to enforce a foreign judgment.
The claimant would first have to show that section 31 of the 1982 Act was satisfied and then that the proceedings fell within one of the exemptions from immunity set out in sections 2 to 11 of the 1978 Act.
I do not believe that Aikens LJs analysis is correct.
Section 31 provides for recognition of a foreign judgment against a state where there exists a connection between the subject matter of that judgment and the forum state that is equivalent to one that would give rise to an exception to immunity in this jurisdiction.
Thus, so far as foreign judgments are concerned, section 31 both reflects and, in part, replaces the exemptions from immunity contained in the 1978 Act.
The words if, and only if in section 31 are important.
Let me revert to the example that I gave in para 32 above.
Section 31 provides for the recognition and enforcement of a New York judgment against a state in respect of a personal injury caused in New York.
Conversely it would not permit recognition of a New York judgment against a state in respect of a personal injury caused by the state in the United Kingdom unless, as in reality would be likely to be the case, there was an alternative basis for recognition that satisfied section 31, such as submission to New York jurisdiction by the foreign state.
In short, far from providing an additional hurdle that the claimant has to cross before enforcing a foreign judgment against a state, section 31 provides an alternative scheme for restricting state immunity in the case of foreign judgments.
If Aikens LJ were correct, section 31 would be largely nugatory.
Even though, according to the British view of state immunity, the state against which the foreign judgment was given would have had no entitlement to immunity, this country would be prevented from recognising or enforcing the foreign judgment unless the case also fell within one of the exceptions in the 1978 Act.
If I am right on the first issue, one exception which would in practice be capable of application would be section 3(1)(a).
None of the other exceptions would be likely to be capable of application, with the exception of section 2.
Both the wording of section 31(1) and the scheme to which it gives effect appear to me to be clear.
State immunity cannot be raised as a bar to the recognition and enforcement of a foreign judgment if, under the principles of international law recognised in this jurisdiction, the state against whom the judgment was given was not entitled to immunity in respect of the claim.
There is, however, one complication.
The complication is as to the effect of section 31(4) of the 1982 Act.
The first problem that I have is reconciling the words in parenthesis in the subsection whether or not that judgment is within section 31(1) with the provision in section 31(1) that a foreign judgment shall be enforced if, and only if the requirements of the subsection are satisfied.
The second is as to how to make sense of the provisions of section 14(3) in the context of proceedings to enforce a foreign judgment.
Mr Howard QC for Argentina submitted that, with the aid of the application of a wet towel to the head, it was possible to determine that the provisions of section 14(3) were only consistent with Argentinas case on the construction of section 31(1).
This argument was considered by Aikens LJ at paras 80 to 86 of his judgment.
He concluded that the reference in section 31(4) of the 1982 Act to section 14(3), and so to 14(2) of the 1978 Act tends to support Argentinas case on the construction of section 31.
I agree with this conclusion.
It is not easy to reconcile the reference in section 14(3) to the submission by a separate entity to the jurisdiction in respect of proceedings in the case of which it is entitled to immunity with a scheme where any relevant submission to jurisdiction will be in a foreign forum.
Sections 14(2) and 14(3) are part of a particularly complex part of the 1978 Act.
It is not easy to make sense of all their provisions in the context of the 1978 Act itself, let alone section 31 of the 1982 Act.
Their general object is, however, clear, which is to provide the same protection for a separate entity acting in the exercise of sovereign authority as is accorded to a state, including the protection against enforcement in section 13.
I do not consider that it would be right to abandon an interpretation of section 31 which I find clear and compelling in order to attempt to give a coherent role to section 14(3) of the 1978 Act, as applied by section 31(4) of the later Act.
Section 31(4) made section 12 of the 1978 Act applicable to proceedings for the recognition or enforcement of a foreign judgment and thereby made such proceedings subject to the rules of court governing service out of the jurisdiction.
These rules were significantly amended in consequence of the passing of the 1982 Act by Rules of the Supreme Court (Amendment No 2) 1983 (SI 1983/1181).
In particular the following new provision was introduced into RSC, Ord 11, r (1)(1): service of a writ out of the jurisdiction is permissible with the leave of the court if in the action begun by the writ (m) the claim is brought to enforce any judgment or arbitral award.
It thus became possible to obtain leave to serve out of the jurisdiction proceedings in respect of an action on a foreign judgment in circumstances where this was not governed by any Convention.
No question appears to have been raised as to the fact that this opened the door to enforcement proceedings in this country of overseas judgments given against states.
For these reasons, in agreement with Blair J at para 26 of his judgment, and disagreement with Aikens LJ, I conclude that the effect of section 31 of the 1982 Act, together with the addition to RSC, Order 11 was accurately summarised by Dicey, Morris & Collins, The Conflict of Laws, 14th ed (2006), vol 1, para 14 095, as follows: The effect of [section 31] is that a foreign judgment against a state, other than the United Kingdom or the state to which the court which pronounced the judgment belongs, is to be recognised and enforced in the United Kingdom if [the judgment] would be so recognised and enforced if it had not been given against a state and the foreign court would have had jurisdiction in the matter if it had applied rules corresponding to those applicable to such matters in the United Kingdom in accordance with sections 2 to 11 of the [1978 Act].
A foreign judgment against a state will be capable of enforcement in England if both of the following conditions are fulfilled: first, that the foreign court would have had jurisdiction if it had applied the United Kingdom rules on sovereign immunity set out in sections 2 to 11 of the [1978 Act], the effect of which is that a state is not immune (inter alia) where it submits to the jurisdiction or where the proceedings relate to a commercial transaction; second, that under United Kingdom law the state is not immune from the processes of execution.
Section 31(4) of the 1982 Act gives to judgments against foreign states the benefit of (inter alia) the immunities from execution contained in sections 13 and 14(3), (4) of the 1978 Act; their effect is that there can be no execution against sovereign property without the written consent of the foreign state unless the property is in use or intended for use for commercial purposes.
Issue 3: Do the Bonds contain a submission to the jurisdiction of the English court in respect of these proceedings within the meaning of section 2 of the 1978 Act?
Section 2(2) of the 1978 Act varied the law of what was capable of amounting to a submission by a state to the jurisdiction of the English court, as I have described it at paras 9 and 11 above, in that it provided that a state could submit to the jurisdiction by a written agreement prior to any dispute arising.
The issue on this appeal is simply whether, on the true construction of the relevant provisions of the bonds, Argentina submitted to the jurisdiction of the English court.
The bonds were governed by New York law and that law applies a narrow construction in favour of the state to the construction of a term which is alleged to waive state immunity.
The relevant provisions of the bonds are set out in appendix 3 in two paragraphs.
Blair J at paras 32 to 38 of his judgment concluded that the first paragraph contained a submission to the jurisdiction of the English court.
Before Aikens LJ, NML relied on the second paragraph as supporting the conclusion that Blair J had drawn from the first.
They were, however, unsuccessful, for Aikens LJ ruled that, even when the two paragraphs were read together, they did not constitute a submission to the jurisdiction of the English court.
There was and is a degree of common ground.
It is accepted that the judgment of the New York court is a related judgment, that is a judgment in related proceedings.
The issue in relation to the provisions of the first paragraph is whether the following provision constitutes a submission to the jurisdiction of the English court: the related judgment shall be conclusive and binding upon [Argentina] and may be enforced in any specified court or in any other courts to the jurisdiction of which the republic is or may be
subject (the other courts) by a suit upon such judgment
Blair J considered at para 38 that this provision constituted a submission to the jurisdiction of the English court inasmuch as Argentina unambiguously agreed that a final judgment on the bonds in New York should be enforceable against Argentina in other courts in which it might be amenable to a suit on the judgment.
Aikens LJ did not agree.
He held at para 101 that the agreement that the New York judgment could be enforced in any courts to the jurisdiction of which Argentina is or may be subject by a suit upon such judgment was neither a waiver of jurisdiction nor a submission to the jurisdiction of the English court.
I do not follow this reasoning.
It seems to rob the provision of all effect.
Blair J held that this agreement was more than a mere waiver, and I agree.
If a state waives immunity it does no more than place itself on the same footing as any other person.
A waiver of immunity does not confer jurisdiction where, in the case of another defendant, it would not exist.
If, however, state immunity is the only bar to jurisdiction, an agreement to waive immunity is tantamount to a submission to the jurisdiction.
In this case Argentina agreed that the New York judgment could be enforced by a suit upon the judgment in any court to the jurisdiction of which, absent immunity, Argentina would be subject.
It was both an agreement to waive immunity and an express agreement that the New York judgment could be sued on in any country that, state immunity apart, would have jurisdiction.
England is such a country, by reason of what, at the material time, was CPR 6.20(9).
The provision in the first paragraph constituted a submission to the jurisdiction of the English courts.
If consideration of the first paragraph alone left any doubt that the terms of the bonds included a submission to this jurisdiction, this would be dispelled by the second paragraph.
Omitting immaterial words, this reads: To the extent that the republic shall be entitled, in any jurisdiction in which any other court is located in which any suit, action or proceeding may at any time be brought solely for the purpose of enforcing or executing any related judgment, to any immunity from suit, from the jurisdiction of any such court from execution of a judgment or from any other legal or judicial process or remedy, and to the extent that in any such jurisdiction there shall be attributed such an immunity, the republic has irrevocably agreed not to claim and has irrevocably waived such immunity to the fullest extent permitted by the laws of such jurisdiction solely for the purpose of enabling a holder of securities of this series to enforce or execute a related judgment.
The words may at any time be brought which I have emphasised once again constitute Argentinas agreement that the waiver of immunity applies in respect of any country where, immunity apart, there is jurisdiction to bring a suit for the purposes of enforcing a judgment on the bonds.
England is such a jurisdiction.
Thus the second paragraph constitutes an independent submission to English jurisdiction.
Both jointly and severally the two paragraphs amount to an agreement on the part of Argentina to submit to the jurisdiction of the English (no doubt among other) courts.
This conclusion does not involve a departure from the narrow approach to construction required by the law of New York.
It gives the provisions as to immunity in the bonds the only meaning that they can sensibly bear.
Neither Aikens LJ nor Mr Howard suggested any alternative meaning for the words.
The reality is that Argentina agreed that the bonds should bear words that provided for the widest possible submission to jurisdiction for the purposes of enforcement, short of conferring jurisdiction on any country whose domestic laws would not, absent any question of immunity, permit an action to enforce a New York judgment.
No doubt those responsible were anxious to make the bonds as attractive as possible.
Aikens LJ held at para 103 that because, in the present proceedings, NML had to bring an action in this jurisdiction to obtain recognition of the New York judgment, the proceedings here were not brought solely for the purpose of enforcing or executing any related judgment.
This was to confuse the means with the ends.
Obtaining recognition of the New York judgment is no more than an essential stepping stone to attempting to enforce it.
No suggestion has been made that there is any other purpose in bringing these proceedings.
For this reason I would reverse the decision of the Court of Appeal on the third issue also.
Issue 4: Were NML entitled to raise at the inter partes hearing the two new points not relied on in the ex parte application to serve Argentina out of the jurisdiction?
This issue has been described as the gateway issue.
It involves consideration of the effect of what I shall describe as the rule in Parker v Schuller (1901) 17 TLR 299.
A claimant has always been required by rules of court to include in the application for permission to serve proceedings out of the jurisdiction a statement of the ground for doing so.
This requirement is currently to be found in CPR 6.37 (1)(a), which expressly requires an application for permission to serve a claim form out of the jurisdiction to set out which of the grounds for service out (now contained in paragraph 3.1 of Practice Direction B) is relied on.
CPR 6.37 (3) provides: The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.
In Parker v Schuller the plaintiffs obtained leave to serve a writ out of the jurisdiction under Order 11, r 1(e) of the RSC on the ground that the claim was for breach of a contract within the jurisdiction.
The breach alleged was of a CIF contract, and the allegation was that the contract was broken by reason of a failure to deliver in Liverpool the goods that were the subject of the contract.
Leave was given ex parte and upheld inter partes.
In the Court of Appeal the plaintiffs conceded that the way that their claim had been advanced had been misconceived in that a CIF contract involves an obligation to deliver documents, not the goods to which the documents relate.
The plaintiffs sought to persuade the Court of Appeal to uphold the leave given to serve out on the basis of substituting for the original claim a claim for failure to deliver the relevant documents in Liverpool.
The Court of Appeal refused to permit this.
At p 300 A L Smith MR is reported as saying: It was not until the case came into this Court that the plaintiff set up another cause of action.
That could not be allowed.
Romer LJ added: an application for leave to issue a writ for service out of the jurisdiction ought to be made with great care and looked at strictly.
If a material representation upon which the leave was obtained in the first instance turned out to be unfounded, the plaintiff ought not to be allowed, when an application was made by the defendant to discharge the order for the issue of the writ and the service, to set up another and a distinct cause of action which was not before the judge upon the original application.
It should be noted that in this case the plaintiffs sought to rely upon different facts and not merely upon a different cause of action.
Parker v Schuller was soon lost from sight until it was applied with obvious reluctance by Sir Nicolas Browne Wilkinson V C in Re Jogia (A Bankrupt) [1988] 1 WLR 484.
Since then it has been referred to or applied in a significant number of decisions at first instance or in the Court of Appeal.
The most significant of these, for it expanded the scope of the original decision, was Metall und Rohstoff A G v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391.
The facts of that case are complex, but it suffices to record the response, at p 436, of Slade LJ, giving the judgment of the court, to one of the submissions of counsel for the plaintiffs: One of Mr Wallers responses to this contention has been to refer us to the general observations made by Lord Denning MR in In re Vandervells Trusts (No 2) [1974] Ch 269, 231, as to the modern practice concerning pleadings: 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 considerations apply.
In our judgment, if the draftsman of a pleading intended to be served out of the jurisdiction under Ord 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 Ord 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 had 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.
No rule of court requires a claimant, when seeking to serve a state out of the jurisdiction, to make clear, in the application for permission, the basis upon which it is alleged that the state does not enjoy immunity from suit.
The Practice Note at CPR para 6.37.24, repeating what at the material time was 6.21.24, states that the claimant must show distinctly (a) why the prospective defendant is not absolutely immune from suit.
It is Argentinas case that if the grounds relied upon in the application for permission for contending that the defendant state is not immune from suit prove to be unfounded, the rule in Parker v Schuller precludes the subsequent grant of permission to the claimant to rely on alternative valid grounds.
Blair J did not accept this submission.
He held that it involved an extension of the rule in Parker v Schuller, which he declined to make.
He held at para 48 that where permission to serve out is given on the basis of a mistaken legal analysis of the absence of state immunity, but on a correct legal analysis the state is not in fact immune from the jurisdiction, the court has a discretion whether or not to set aside the order giving permission to serve out.
He exercised that discretion in favour of NML because this involved no prejudice to Argentina, and to require NML to start proceedings afresh would be pointless and involve a waste of costs para 49.
Aikens LJ reversed this decision.
He held at para 61: the order of Steel J was made upon an incorrect basis of the court having jurisdiction in respect of the proposed claim against Argentina.
Logically therefore, that order has to be set aside for want of jurisdiction, just as it must when a claimant has relied on an incorrect cause of action or an incorrect ground for permission to serve out of the jurisdiction.
There can be no question of exercising a discretion to correct the error (in the absence of a new application on a different basis) because the lack of jurisdiction is fatal.
He added at para 66 if NML incorrectly identified the basis on which it asserted that Argentina was subject to the adjudicative jurisdiction of the English court, then the basis for the exercise of the jurisdiction was incorrect.
It is not a mere procedural error, because it goes to the very basis for invoking the jurisdiction against a sovereign state.
It is, qualitatively speaking, in the same position as a failure to identify the correct cause of action or the correct ground for obtaining permission to serve out of the jurisdiction.
Strictly, Aikens LJs decision involves an extension of the rule in Parker v Schuller, inasmuch as the requirement to identify the reason why a state is not immune when seeking permission to serve out is not found in the rules, but only in a Practice Note.
But I think that Aikens LJ was correct to find that there was no difference in principle between the two situations.
Mr Sumption sought to persuade the Court to distinguish Parker v Schuller, but at the same time he invited this Court to hold that there is no longer any justification for following that decision, if indeed there ever was.
I believe that Mr Sumption is correct.
Procedural rules should be the servant not the master of the rule of law.
Lord Woolf, by his Reports on Access to Justice, brought about a sea change in the attitude of the court to such rules.
This included the adoption of the overriding objective with which the new CPR begins.
CPR 1.1 states that the overriding objective of the Rules is to enable the court to deal with cases justly, and that this involves saving expense and ensuring that cases are dealt with expeditiously.
Where an application is made to amend a pleading the normal approach is to grant permission where to do so will cause no prejudice to the other party that cannot be dealt with by an appropriate order for costs.
This accords with the overriding objective.
Where all that a refusal of permission will achieve is additional cost and delay, the case for permitting the amendment is even stronger.
I can see no reason in principle why similar considerations should not apply where an application is made for permission to serve process out of the jurisdiction.
It is, of course, highly desirable that care should be taken before serving process on a person who is not within the jurisdiction.
But if this is done on a false basis in circumstances where there is a valid basis for subjecting him to the jurisdiction, it is not obvious why it should be mandatory for the claimant to be required to start all over again rather than that the court should have a discretion as to the order that will best serve the overriding objective.
Before Parker v Schuller there had been a relevant decision of a powerful Court of Appeal, of which A L Smith LJ was a member, which was not referred to and does not seem to have been cited in the later case.
In Holland v Leslie [1894] 2 QB 450 leave to serve out of the jurisdiction had been granted in relation to a bill of exchange which had been erroneously described in the statement of claim indorsed on the writ.
The Court of Appeal upheld an order giving leave to amend the writ.
In doing so Lord Esher MR said this at p 451: Leave was given for the issue of the writ so indorsed, and service of notice of it out of the jurisdiction; such notice was duly served upon the defendant abroad; and the defendant has in due course appeared in this country.
It is argued that, under these circumstances, the writ cannot be amended.
Why not? The rules with regard to amendments appear in terms to apply to such a case.
It is contended, nevertheless that there cannot be an amendment, because the writ was for service, and has been served, out of the jurisdiction.
But the defendant has now appeared in this country; and I can see no reason why an amendment such as this should not be made, just as in the case of a writ served within the jurisdiction.
We were pressed with the possibility that, if such a writ could be amended, it might be amended so as to introduce a cause of action in respect of which leave could not have been originally given for service out of the jurisdiction.
That is not the present case.
When that case arises, there may be good reason for refusing to allow the amendment.
The other two members of the Court agreed.
It is not easy to reconcile the approach in this decision with Parker v Schuller.
Certainly it is good reason to confine the latter decision to its particular facts.
There are a number of authorities which follow the approach of Lord Esher in suggesting that there is, in principle, no objection to amending a pleading which has been served out of the jurisdiction unless the effect will be to add a claim in respect of which leave could not, or would not, have been given to serve out: Waterhouse v Reid [1938] 1 KB 743, 747, 749; Beck v Value Capital Ltd (No 2) [1975] 1 WLR 6,15; Bastone & Firminger Ltd v Nasima Enterprises (Nigeria) Ltd [1996] CLC 1902, 1907; Donohue v Armco Inc [2001] UKHL 64; [2002] 1 All ER 749.
Masri v Consolidated Contractors International (UK) Ltd (No 3) [2008] EWCA Civ 625; [2009] QB 503, para 74.
While most of these cases involved proceedings which had progressed beyond the initial leave stage, I can see no reason for adopting a less generous approach to amendment at the earlier stage.
While amending to add a cause of action is not the same as amending to substitute one, in either case the amendment involves subjecting the overseas party to a claim other than the one that he entered an appearance to meet, and similar principles should apply in each case.
For all these reasons I would hold that the rule in Parker v Schuller should no longer be applied.
The same approach should be taken to an application to amend a pleading that has been served out of the jurisdiction as is adopted to any other application to amend a pleading.
If this conclusion is not shared by the majority, I would confine the rule in Parker v Schuller and not extend it to cover the different facts of the present case.
There is no question here of relying on a different cause of action to that in respect of which leave was obtained to serve out.
Nor is there any question of relying on facts that were not before David Steel J when he gave permission to serve Argentina out of the jurisdiction.
Nor is there any failure to comply with a rule of court.
It follows that I consider that the application to rely on alternative reasons why Argentina has no immunity was one to be determined by Blair J in the exercise of his discretion.
There are no valid grounds for challenging his decision.
It has not been suggested that Argentina will be any better off if NML is required to start proceedings afresh.
To require them to do so would be a waste of time and money.
Argentina agreed when the bonds were issued to a wide ranging waiver of immunity and submission to jurisdiction.
The court had an independent obligation to satisfy itself that Argentina is not entitled to immunity.
It had before it all the relevant material.
Any initial mistake on the part of NML in identifying the correct reason why Argentina enjoys no immunity should not preclude NML from proceeding with its action.
For these reasons, I would reverse the Court of Appeal on the fourth issue also.
Issue 5: Is Argentina entitled to claim state immunity in respect of these proceedings?
My answer is no.
I would allow this appeal.
LORD MANCE
Lord Phillips has set out the facts and, in para 7 identified the five issues to which they give rise.
I agree with his judgment on the second and third issues; that is, the effect of section 31 of the Civil Jurisdiction and Judgments Act 1978 and whether the bonds contain a submission to the English jurisdiction.
I also agree that NML was entitled to raise these two new issues, not having relied upon them on the ex parte application for permission to serve the Republic of Argentina out of the jurisdiction.
For reasons which Lord Collins has given, I do not think that the rule in Parker v Schuller (1901) 17 TLR 299 should be treated as extending to the present case, but I also agree that it should, in any event, no longer be followed.
In the result, I also agree with Lord Phillips answer to the fifth issue, namely that the Republic is not entitled to claim state immunity in the present proceedings to enforce against it the judgment obtained in New York proceedings.
But I do so by a different route to his primary route.
This is because I am unable to agree with Lord Phillips on the first issue: the scope of section 3 of the State Immunity Act 1978.
This represents his preferred basis for his answer to the fifth issue.
I do not consider that the drafters of that Act or Parliament contemplated that section 3(1)(a) of the 1978 Act had in mind that it would or should apply to a foreign judgment against a foreign state.
I understand Lord Phillips effectively to accept that (para 42), but, nonetheless, he and Lord Clarke treat the words as wide enough to cover such a judgment.
I do not consider this to be justified.
The pursuit of a cause of action without the benefit of a foreign judgment is one thing; a suit based on a foreign judgment given in respect of a cause of action is another.
In the present case, the only issue arising happens to be the issue of state immunity with which the Supreme Court is concerned.
But a claim on a cause of action commonly gives rise to quite different issues from those which arise from a claim based on a judgment given in respect of a cause of action.
A claim on a cause of action normally involves establishing the facts constituting the cause of action.
A suit based on a foreign judgment normally precludes re investigation of the facts and law thereby decided.
But it not infrequently directs attention to quite different matters, such as the foreign courts competence in English eyes to give the judgment, public policy, fraud or the observance of natural justice in the obtaining of the judgment.
These are matters discussed in rules 42 to 45 of Dicey, Morris & Collins, The Conflict of Laws 14th ed (2009) vol 1.
A recent example of their potential relevance is, in a Privy Council context, AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2011] UKPC 7, paras 48 and 109 to 121.
The exceptions from immunity provided by sections 2 to 11 of the 1978 Act focus on specific conduct (submission) in the domestic UK proceedings or on specific transactions, contexts or interests in relation to which causes of action may arise.
The recognition and enforcement of foreign judgments has long been recognised as a special area of private international law.
Careful statutory attention was given to it in the Administration of Judgments Act 1920 (judgments of courts from other parts of Her Majestys dominions) and the Foreign Judgments (Reciprocal Enforcement) Act 1933 (judgments from certain other countries) in terms which (as Lord Phillips points out in paras 16 to 18) respect the existence of state immunity, as well as in Part II of the 1978 Act itself (judgments against the United Kingdom in other states party to the European Convention on State Immunity, now Regulation EC44/2001) in terms specifically addressing state immunity.
In this context, it stretches language beyond the admissible to read proceedings relating to a commercial transaction as covering proceedings relating to a judgment which itself relates to a commercial transaction.
The improbability of so extended a construction is underlined by the extreme care that the drafters of the Act took to define in s.3, in the widest terms, the concept of commercial transactions.
I do not however agree with the view (expressed by Stanley Burnton J in AIC Ltd v The Federal Government of Nigeria [2003] EWHC 1357 (QB), paras 30 32) that the improbability can be supported on the basis of an implied limitation of section 3(1)(a) of the 1978 Act to commercial transactions with a domestic nexus.
That view ignores the clear contrast between the wording of section 3(1)(a) and (b).
If there were any doubt about the point (which there is not), it would be dispelled by the Parliamentary history.
In the original bill, clause 3(1), the precursor to section 3(1)(a), was territorially limited to commercial activity by a State through an office, agency or establishment maintained by it for that purpose in the United Kingdom.
Following strong criticism of this limitation by Lords Wilberforce and Denning (Hansard HL Deb 17 January 1978 vol 388 cc51 78), the Lord Chancellor moved an amendment inserting a clause in the form which became section 3(1), making expressly clear that this was to ensure that No qualifications, no jurisdictional links with the United Kingdom are to be required under sub clause (a) as distinct from sub clause (b): Hansard HL Deb 16 March 1978 vol 389 cc1491 540.
Even before the enactment of section 34 of the Civil Jurisdiction and Judgments Act 1982, it is extremely doubtful whether the principle that a cause of action did not merge in a foreign judgment survived in English law: Carl Zeiss Stiftung v Rayner & Keeler Ltd [1967] 1 AC 853, 966 per Lord Wilberforce.
This, to my mind, also makes unconvincing a reading of proceedings relating to (a) a commercial transaction which covers proceedings to enforce a judgment based on a cause of action arising from a commercial transaction.
Where a state has agreed in writing to submit a dispute to arbitration, section 9 of the 1978 Act provides that the state is not immune as respects proceedings in United Kingdom courts which relate to the arbitration.
This subsection addresses the consequences of submission, and leaves it to the court to determine whether such has occurred.
The subsection also covers ancillary or interlocutory applications relating to arbitration, and is not limited to arbitration relating to commercial transactions.
But very many arbitrations are commercial; and a major purpose of section 9 must on any view have been to lift state immunity in respect of the enforcement of arbitration awards against states, including foreign arbitration awards since the subsection is in general terms (see further on this last point para 90 below).
Section 9 thus reversed the effect of the House of Lords reasoning in Duff Development Co Ltd v Government of Kelantan [1924] AC 797 on the concept of submission as understood in Kahan v Federation of Pakistan [1951] 2 KB 1003, although section 13(2) to (4) restricts the issue of process against state property (principally, to property for the time being in or intended for use for commercial purposes).
I would endorse on these aspects what is said in paragraphs 117 to 122 of the judgment of the Court of Appeal handed down by Moore Bick LJ in Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2007] QB 886.
In case there were any room for doubt, paras 119 and 120 set out extracts from Hansard (HL Debs16 March 1978 vol 389 cc1516 1517 and 28 June 1978 c316), where the Lord Chancellor confirmed expressly the intention to remove state immunity in respect of the enforcement of arbitration awards.
On NMLs case, there is, as a result, an unlikely dichotomy between the express treatment of arbitration in Part I of the 1978 Act and the suggested tacit, but nonetheless (if achieved) very important, removal of state immunity in respect of judgments relating to commercial transactions.
At the time of the 1978 Act, the rules of court provided no basis for obtaining leave to serve out of the jurisdiction in respect of a claim to enforce any judgment or arbitral award.
Such a basis was only introduced, as what was then RSC O.11 r.1(1)(m), from 1 January 1984.
Section 12(7) of the 1978 Act maintained the need for leave to serve out of the jurisdiction where required by the rules of court.
The lifting by section 9 of the 1978 Act of state immunity in respect of arbitration awards had obvious relevance in a case, like Duff Development Co Ltd v Government of Kelantan itself, where a foreign state had by an English arbitration agreement undertaken to submit to the English jurisdiction in respect of an application to enforce any award as a judgment.
Indeed, as appears from the original bill and from the passages in Hansard quoted in the Svenska Petroleum Exploration case at paras 119 and 120, the clause in the original bill which became section 9 in the 1978 Act was confined to arbitration in or according to the law of the United Kingdom, and this phrase was only deleted in the House of Commons.
In relation to foreign judgments there was, however, no equivalent problem to that raised by the Duff Development and Kahan cases, and the absence when the 1978 Act was passed of any basis for obtaining leave to serve out in respect of a foreign judgment or award also points, I think, against a construction stretching the wording of section 3(1) to cover suits to enforce such judgments.
It is true that the 1978 Act adopted the restrictive theory of state immunity, but the question before the Supreme Court now is: how far and in respect of what transactions.
It is true that it is now well recognised that no principle of international law renders state A immune from proceedings brought in state B to enforce a judgment given against it in state C.
But the question is how far the drafters of the 1978 Act appreciated or covered the full possibilities allowed by international law, or, putting the same point in a different way, how far these were only covered a little later by section 31 of the 1982 Act.
As Lord Phillips records at para 12, English common law was at the time itself in development and not finally settled, on the point that states were not immune in respect of commercial transactions, until the House of Lords decision in I Congreso del Partido [1983] AC 244, some years after the 1978 Act.
The question whether a claim to enforce a judgment constitute[s] proceedings relating to a commercial transaction simply does not arise, unless one assumes that the wording of section 3(1)(a) of the 1978 Act covers proceedings on judgments.
But that is the very issue which is before the Supreme Court.
On NMLs case, which Lord Phillips favours, Parliament by section 3(1) of the 1978 Act achieved a partial and oddly imbalanced lifting of state immunity in respect of foreign judgments against foreign states.
First, it omitted to introduce any analogue of a most obvious situation in which a foreign judgment might be rendered against a state.
Under section 2, a state is not immune as respects proceedings in respect of which it has submitted to United Kingdom courts; but nothing in the 1978 Act lifts state immunity in the United Kingdom in respect of a foreign judgment on the basis of its submission in proceedings abroad.
Secondly, the Act either fails to lift immunity or, if it lifts immunity at all, does so in a partial and illogical way, in situations paralleling those covered by sections 4 to 11 of the Act.
To this, Mr Sumption QC responds on behalf of NML that, if relating to a commercial transaction can be read widely enough to cover relating to a foreign judgment relating to a commercial transaction, then phrases in other sub sections such as in respect of death or personal injury (section 5(a)) can be read widely enough to mean in respect of a foreign judgment in respect of death or personal injury caused by an act or omission in the United Kingdom.
However, as Mr Mark Howard QC points out on behalf of the Republic, even if this persistent stretching of words were to be accepted, it does not remove the anomalies which flow from NMLs case.
It does not, in particular, address the cases of a foreign judgment against a state where the contract of employment was not made in the United Kingdom or the work was not wholly or to be performed here (cf section 4); or in respect of death or personal injury or damage or loss of tangible property caused by an act or omission not occurring in the United Kingdom (cf section 5); or relating to immovable property not in the United Kingdom (cf section 6); or relating to any patent not registered in the United Kingdom (cf section 7); or relating to membership of any body corporate not incorporated or constituted under United Kingdom law (cf section 8).
Lord Phillips acknowledges the illogicality (para 34).
The territorial limits involved in these sections are understandable in proceedings actually relating to such contexts or interests.
But they make no real sense as a basis for distinguishing between foreign judgments in respect of which state immunity is and is not said to exist.
On NMLs analysis, section 3 of the 1978 Act therefore gave a very partial and haphazard mandate for enforcement of foreign judgments, while section 31 of the 1982 Act was necessary, though only necessary, to restore the comprehensive harmony which in that respect the 1978 Act had singularly failed to achieve.
There is however no trace of that in the 1982 Act itself.
On the contrary, section 31(1)(b) refers to sections 2 to 11 of the 1978 Act without discrimination and evidently without recognising that (on NMLs analysis) the legislator must, by reason of the words if and only if, have been replacing a partial scheme of enforcement of foreign judgments under the 1978 Act with a new scheme provided by section 31(1) of the 1982 Act.
Further, section 31(1) makes clear that the scheme it introduces is to apply to judgments by a foreign court against a state other than the United Kingdom or the state to which that court belongs.
Mr Sumption submits that this would, in consequence of the words if and only if, supersede section 3(1) as regards judgments against the state to which that court belongs.
If that were so, then the 1982 Act would for some unexplained reason be cutting down what is, on Mr Sumptions case, the width of section 3(1).
But I do not think that Mr Sumptions submission is correct.
All that the words if and only if achieve is the exclusion of judgments against the state to which that court belongs from the scheme of section 31.
They do not overrule or affect any provision of section 3(1) which, on NMLs case, already covered such judgments.
The patchwork provision of the two statutes, which arises on NMLs case, and which Lord Phillips and Lord Clarke are minded to accept, becomes even less probable as a matter of imputed Parliamentary intention.
I see no basis for giving the phrase relating to in section 3(1)(a) what is described as an updated meaning.
What constitutes a family or cruel or inhuman treatment or a true and fair view (to take three well known examples) may vary, and has varied, with social or professional attitudes from time to time.
But a connecting factor like relating to is most unlikely to have this elasticity, and it is implausible to suggest that Parliament intended that its meaning or application in or under section 3(1)(a) could, over time, expand to remove immunity in respect of judgments.
This would amount to altering the scope of the Act in a way not falling within the principles originally envisaged, contrary to the rule stated in Bennion on Statutory Interpretation (5th ed) section 288, para (6).
Further, even if (contrary to my view) any expansion were theoretically possible, no legal, social or other developments have been identified justifying it in this case.
On the contrary: the enactment of section 31(1) of the 1982 Act argues strongly against any such expansion of the ambit of relating to in section 3(1)(a) of the 1978 Act; and the only effect of expanding the scope of section 3(1)(a) would be partially to create an overlap with that section and/or the illogical patch work effect referred to in preceding paragraphs.
It is for these reasons that I am unable to follow Lord Phillips and Lord Clarkes answer to the first issue.
In my view, section 31 is the means by which the United Kingdom legislator achieved, for the first time, a comprehensive and coherent treatment of the issue of state immunity in respect of foreign judgments, and it enables the enforcement of the New York judgment in this case.
But the bonds also contain a comprehensive submission to the English jurisdiction in respect of the enforcement of the New York judgment, and this leads to the same result.
I would, on this basis, therefore allow the appeal.
LORD COLLINS (with whom Lord Walker agrees)
I agree with Lord Phillips that the appeal should be allowed, but, in agreement with Lord Mance, I would rest my conclusion on section 31 of the 1982 Act and on Argentinas submission and waiver of immunity, and not on section 3 of the 1978 Act.
Although I agree with Lord Phillips observations on the so called rule in Parker v Schuller (1901) 17 TLR 299, in my judgment the point does not, and did not, arise in these proceedings because there has never been a rule (as distinct from good practice) that the grounds for absence of immunity must be set out once and for all at the stage when an application for permission to serve the foreign State is made; and there is no analogy between the rules for applications for service out of the jurisdiction in general and good practice in relation to service on foreign States.
Introduction
The first widespread defaults on sovereign debt occurred in the early 19th century.
The newly independent former Spanish American colonies besieged London for loans in the years 1822 1825 and the proceeds were quickly expended on armaments, or otherwise wastefully dissipated, with little regard to the quite different purposes for which, in many instances, the loan had been ostensibly raised: see Borchard, State Insolvency and Foreign Bondholders, Vol 1 (1951), pp xx xxi, quoting Wynne (1935) 42 J Can.
Bankers Assn 472.
The Province of Buenos Aires defaulted in 1827 on loans raised for it by Baring Brothers: see Ferns, Britain and Argentina in the Nineteenth Century (1960), pp 141 et seq; Marichal, A Century of Debt Crises in Latin America (1989), p 59.
National courts of the debtor state and of the creditors were unable to secure the rights of unpaid bondholders.
In Twycross v Dreyfus (1877) LR 5 Ch D 605, a case concerning Peruvian bonds, Sir George Jessel MR said (at 616): [T]he municipal law of this country does not enable the tribunals of this country to exercise any jurisdiction over foreign governments as such.
Nor, so far as I am aware, is there any international tribunal which exercises any such jurisdiction.
The result, therefore, is that these so called bonds amount to nothing more than engagements of honour, binding, so far as engagements of honour can bind, the government which issues them, but are not contracts enforceable before the ordinary tribunals of any foreign government without the consent of the government of that country.
By the beginning of the 20th century only a few countries (including Belgium and Italy) had adopted a restrictive theory of sovereign immunity, but only with regard to jurisdiction, and not to execution: see Borchard, Diplomatic Protection of Citizens Abroad (1915), p 307.
The only remedy for countries whose citizens were affected by sovereign default was force, and in response to the blockade of Venezuelan ports by the United States, Italy, Germany and Britain, the Minister of Foreign Affairs of Argentina, Dr Drago, enunciated in 1902 what became known as the Drago doctrine, namely that the public debt [of an American nation] cannot occasion armed intervention by a European power: Hackworth, Digest of International Law, vol 5 (1927), p 625.
Venezuelan bond claims were subsequently submitted to mixed claims commissions: Borchard, op cit, pp 322 325.
But law and practice was revolutionised in the second half of the 20th century by the widespread (but by no means uniform) adoption of the restrictive theory of sovereign immunity, and the modern law now depends on the application of the restrictive theory of immunity and on the almost invariable use in international loan agreements and bond issues since the 1970s of clauses providing for submission to national jurisdiction and waivers of immunity.
NML is one of several bondholders who have obtained judgments in the New York Federal District Court against Argentina on the bonds: see also Lightwater Corp v Republic of Argentina, 2003 WL 1878420 (SDNY 2003); NW Global Strategy v Republic of Argentina, 2011 WL 1237538 (SDNY 2011).
The idea behind vulture funds is not new.
Borchard State Insolvency and Foreign Bondholders, Vol 1 (1951), pp.xx xxi, quotes Wynne, op cit, in relation to the early South American defaults: Meanwhile, however, the bonds had largely passed out of the hands of the original purchasers into the possession of speculators who bought them up at next to nothing and, in due time, reaped a handsome profit.
So also in the famous Greek bond cases in England in the 1960s and 1970s, the bondholders were speculators who had bought cheaply bonds issued by the Greek Government in the 1920s and unpaid since 1941: see eg National Bank of Greece SA v Westminster Bank Executor and Trustee Co (Channel Islands) Ltd [1971] AC 945; UGS Finance Ltd v National Mortgage Bank of Greece [1964] 1 Lloyds Rep 446.
So called vulture funds have given rise to at least two problems.
First, the ability of investors to acquire defaulted debt can be abused: see, eg, the Barcelona Traction case (Belgium v Spain), 1970 ICJ Rep 3; Highberry Ltd v Colt Telecom Group plc (No 1) [2002] EWHC 2503 (Ch), [2003] 1 BCLC 290; (No 2) [2002] EWHC 2815 (Ch), [2003] BPIR 324.
Second, particular attention has focussed on the ability of vulture funds to thwart loan re structuring by highly indebted poor countries: see Lumina, Report to the UN Human Rights Council on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social, and cultural rights, April 29, 2010 (A/HRC/14/21); Donegal International Ltd v Republic of Zambia [2007] EWHC 197 (Comm), [2007] 1 Lloyds Rep 397; and the Debt Relief (Developing Countries) Act 2010.
Argentina declared a sovereign debt moratorium in December 2001 and has restructured much of its debt through debt exchange, but that has no effect on these proceedings because (a) there is no international insolvency regime for States; and (b) the bonds are governed by New York law and are unaffected by any Argentine moratorium.
Issue 1: proceedings relating to a commercial transaction and the State
Immunity Act 1978, section 3
The proceedings in the present appeal are proceedings at common law for the enforcement of the New York judgment.
None of the statutory methods of enforcement is available for judgments rendered in the United States.
On this part of the appeal the only relevant question is whether the proceedings in England at common law on the New York judgment are proceedings relating to a commercial transaction entered into by the State, where commercial transaction includes any loan or other transaction for the provision of finance: section 3(1)(a); section 3(3)(b).
Whether the New York proceedings were themselves proceedings relating to a commercial transaction is not the relevant question.
The question on this issue is whether the expression relating to is to be given the meaning ascribed to it (in proceedings different from the present ones) by Stanley Burnton J in AIC Ltd v Federal Government of Nigeria [2003] EWHC 1357 (QB) (registration of a Nigerian judgment under the Administration of Justice Act 1920) and by Gloster J and the Court of Appeal in Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2005] EWHC 2437 (Comm), [2006] 1 Lloyds Rep 181, [2006] EWCA Civ 1529; [2007] QB 886 (enforcement of Danish arbitral award under Arbitration Act 1996, section 101).
The question, to what do the proceedings for enforcement of the New York judgment relate, can be given a narrow or a wide answer.
The narrow meaning would result in a conclusion that they relate to the enforceability of the New York judgment, which would involve such matters (not likely to be the subject of dispute in a case such as the present one) as whether the New York court had in personam jurisdiction (here there was a clear submission to the jurisdiction of the New York courts) or whether enforcement could be resisted on any of the traditional grounds (such as want of natural justice, fraud, or public policy), none of which has any arguable application.
The wider meaning would give effect to the practical reality that the proceedings relate to liability under the bonds, the issue of which was plainly a commercial transaction for the purposes of section 3.
My conclusion that the narrower meaning is the one which must be ascribed to Parliament rests on considerations somewhat different from the reasons articulated by Stanley Burnton J in AIC.
I do not consider that a potential overlap with the arbitration provision in section 9 supports a narrow interpretation of section 3.
The overlap would not be complete, and it would be artificial and over technical to use the potential overlap to cut down the scope of section 3.
Nor do I consider that the narrow construction is supported by an argument that section 3(1)(a) should be interpreted so as to require a link with the territorial jurisdiction of the United Kingdom.
No such link is required in the 1978 Act in relation to the head of commercial transactions covered by section 3(3)(b).
Both the Quebec Court of Appeal and the Supreme Court of Canada in Kuwait Airways Corporation v Republic of Iraq [2009] QCCA 728; revd [2010] SCC 40, [2010] 2 SCR 571, although reaching different conclusions on the facts, decided that, in an action to enforce an English judgment, the question whether the proceedings in Canada relate[d] to any commercial activity of the foreign state (State Immunity Act RSC 1985, c 18, section 5) depended on the nature of the underlying proceedings in England.
But neither judgment articulates the reasons for that conclusion, and they are therefore unhelpful on this appeal.
What is not likely to be in doubt is that at the time the 1978 Act was enacted it would not have been envisaged that section 3 would have applied to the enforcement at common law of a foreign judgment against a foreign State based on a commercial transaction.
That was because until RSC Order 11, r 1(1)(m) (now CPR PD6B, para 3.1(10)) was enacted in 1982 (and came into force on January 1, 1984) a defendant outside the jurisdiction could not be served in an action on a foreign judgment even if there were assets within the jurisdiction to satisfy the judgment (and consequently no freezing injunction could be made in relation to those assets: Perry v Zissis [1977] 1 Lloyds Rep 607).
Nor is it likely that section 31 of the Civil Jurisdiction and Judgments Act 1982 would have been enacted in the form that it was enacted if Parliament had thought that the 1978 Act already applied to a class of foreign judgments.
I accept that neither of those points is conclusive as to the meaning of section 3.
There is no impediment in public international law to the institution of proceedings to enforce a foreign judgment based on commercial transactions.
It is now possible to serve a foreign sovereign out of the jurisdiction in such proceedings, and the 1978 Act could be construed in the light of present circumstances: Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27, 49; Yemshaw v Hounslow London Borough Council (Secretary of State for Communities and Local Government intervening) [2011] UKSC 3, [2011] 1 WLR 433, paras 5 27.
But for section 31 of the 1982 Act, and the almost invariable employment of wide express waivers of immunity, it might have been desirable as a matter of policy to give section 3 the wider meaning.
There would, however, be no principled basis on which to found such a conclusion.
The proceedings in England relate to the New York judgment and not to the debt obligations on which the New York proceedings were based.
Issue 2: section 31 of the Civil Jurisdiction and Judgments Act 1982
This is a very short point.
If the Court of Appeal was right to accept Argentinas argument, the section has such limited effect that it would not have been worth enacting, and certainly would not have justified the attention that it was given in the Parliamentary process: see Fox (2009) 125 LQR 544, at 547 548 for some of the history.
The natural meaning of section 31(1) is that it requires recognition and enforcement of a foreign judgment against a foreign State (other than the United Kingdom or the State in which the foreign proceedings were brought) if (a) the normal conditions for recognition and enforcement of judgments are fulfilled, and (b) mutatis mutandis the foreign State would not have been immune if the foreign proceedings had been brought in the United Kingdom.
That meaning is the one which text writers have propounded since the section was enacted: Collins, Civil Jurisdiction and Judgments Act 1982 (1983), p 140; Dicey & Morris, Conflict of Laws 11th ed (1987), pp 454 455 (now Dicey, Morris & Collins, 14th ed (2006), para 14 095); Cheshire, North & Fawcett, Private International Law, 14th ed (2008), pp 588 589.
It is true that there are some drafting infelicities, including the reference to such matters in section 31(1)(b), and the words in parentheses in section 31(4), but they give no support to the Court of Appeals surprising conclusion that, in the absence of an express amendment to the 1978 Act, section 31 does not affect the law of immunity, and therefore has no discernible purpose.
Issue 3: submission
As late as 1957 Delaume, Jurisdiction of Courts and International Loans (1957) 6 Am J Comp L 189, 203, said there was no consensus of opinion as to whether contractual waivers of immunities are valid and binding upon a foreign sovereign or as to what acts are necessary to constitute such a waiver.
In 1965 the Restatement Second, Foreign Relations Law of the United States, section 70(1) stated that a foreign State might waive its immunity by agreement with a private party, including an agreement made before the institution of proceedings.
The Reporters Note accepted that there had been no judicial decision to this effect, but that it was believed that United States courts would apply a waiver rule.
As indicated above (para 103), it was only in the 1970s that it became almost invariable practice for syndicated bank loans to States and international bonds issued by States to contain wide submissions to the jurisdiction of national courts and express waivers of immunity.
The position in English law prior to the enactment of the 1978 Act was that it was thought that a prior contractual submission to the jurisdiction of the court was ineffective to amount to a waiver of immunity and that nothing less than an appearance in the face of the court would suffice: Duff Development Co v Government of Kelantan [1924] AC 797 and Kahan v Federation of Pakistan [1951] 2 KB 200, relying on Mighell v Sultan of Johore [1894] 1 QB 149, 159, 160.
In Mighell v Sultan of Johore [1894] 1 QB 149 the argument for the unfortunate Miss Mighell was that the Sultan had waived his immunity by coming to England as Albert Baker and making contracts as a private individual.
That argument was rejected.
Submission had to be when the Court is about or is being asked to exercise jurisdiction over him and not any previous time (Lord Esher MR at 159); the only mode in which a sovereign can submit to the jurisdiction is by a submission in the face of the court, as, for example, by appearance to a writ (Lopes LJ at 161); or unless upon being sued he actively elects to waive his privilege and to submit to the jurisdiction (Kay LJ at 164).
In Duff Development Co Ltd v Government of Kelantan [1924] AC 797 the question was whether the Government had waived immunity in relation to an application to the court to enforce an arbitration award by agreeing to the arbitration clause in the deed of concession and by applying to the court to set aside the award.
The effect of the decision was that a submission to arbitration was not a submission to enforcement.
Only Viscount Cave and Lord Sumner relied on the approach in Mighell.
Cf Lord Dunedin at 821.
In Kahan v Federation of Pakistan [1951] 2 KB 1003, in a contract for the supply of Sherman tanks Pakistan agreed to submit for the purposes of this agreement to the jurisdiction of the English courts and agreed a method of service within the jurisdiction.
Relying on three of the speeches in Duff Development and the decision in Mighell, the Court of Appeal held that there was no submission in the absence of an undertaking given to the court at the time when the other party asked the court to exercise jurisdiction over it.
As Dr F A Mann said, the proposition that a waiver or submission had to be declared in the face of the court was a peculiar (and unjustifiable) rule of English law: (1991) 107 LQR 362, at 364.
In a classic article (Cohn, Waiver of Immunity (1958) 34 BYIL 260) Dr E J Cohn showed that from the 19th century civil law countries had accepted that sovereign immunity could be waived by a contractual provision, and that the speeches in Duff Development on the point were obiter (and did not constitute a majority) and that both Duff Development and Kahan v Federation of Pakistan had overlooked the fact that submission in the face of the court was not the only form of valid submission since the introduction in 1920 in RSC Ord 11, r 2A (reversing the effect of British Wagon Co Ltd v Gray [1896] 1 QB 35) of a rule that the English court would have jurisdiction to entertain an action where there was a contractual submission.
In particular, in Duff Development Lord Sumner had overlooked the fact that British Wagon Co v Gray was no longer good law.
The principle enunciated in Kahan v Federation of Pakistan was reversed by section 2(2) of the 1978 Act, which provided that a State could submit to the jurisdiction by a prior written agreement.
This is consistent with international practice: United States Foreign Sovereign Immunities Act 1976, section 1605(a)(1) (State not immune if it has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver . ); European Convention on State Immunity 1972, Art 2(b) (no immunity if it has undertaken to submit to the jurisdiction of [the] court by an express term contained in a contract in writing); UN Convention on Jurisdictional Immunities of States and their Property 2004, Art 7(1)(b) (no immunity if the State has expressly consented to the exercise of jurisdiction by the court with regard to the matter or case in a written contract).
The Waiver and Jurisdiction Clause in the bonds provided that a related judgment: shall be conclusive and binding upon [Argentina] and may be enforced in any Specified Court or in any other courts to the jurisdiction of which the Republic is or may be subject (the Other Courts) by a suit upon such judgment.
The New York judgment was on any view a related judgment.
Argentina agreed that it could be enforced in any other courts to the jurisdiction of which the Republic is or may be subject.
This was the clearest possible waiver of immunity because Argentina was or might be subject to the jurisdiction of the English court since the English court had a discretion to exercise jurisdiction in an action on the New York judgment by virtue of CPR 6.20(9) (now CPR PD6B, para 3.1(10)).
The waiver is confirmed by the second paragraph of the clause, which provides: To the extent that the Republic shall be entitled, in any jurisdictionin which anyOther Court is located in which any suit, action or proceeding may at any time be brought solely for the purpose of enforcing or executing any Related Judgment, to any immunity from suit, from the jurisdiction of any such courtfrom execution of a judgment or from any other legal or judicial process or remedy, and to the extent that in any such jurisdiction there shall be attributed such an immunity, the Republic has hereby irrevocably agreed not to claim and has irrevocably waived such immunity to the fullest extent permitted by the laws of such jurisdiction solely for the purpose of enabling the Fiscal Agent or a holder of Securities of this Series to enforce or execute a Related Judgment.
Again England is a jurisdiction in which an action may be brought to enforce the New York judgment and Argentina agreed not to claim any immunity in that jurisdiction.
The contrary conclusion of the Court of Appeal is not readily explicable.
Issue 4: The Parker v Schuller point
As I have said, in my judgment the point in Parker v Schuller (1901) 17 TLR 299 does not arise.
As Lord Walker said in Roberts v Gill & Co [2010] UKSC 22, [2011] 1 AC 240, at [94], the law of procedure and practice has traditionally been regarded as the province of the Court of Appeal rather than the House of Lords (or, now, the Supreme Court), and this court should be especially hesitant to decide points of procedure in appeals in which they do not even arise.
The reason why the point does not arise is as follows.
The current CPR 6.37(1)(a) provides that an application for permission to serve a claim form out of the jurisdiction must set out which ground in paragraph 3.1 of Practice Direction 6B is relied on.
There was substantially the same rule under the RSC, where Order 11, r 4(1) provided that an application for the grant of leave to serve a writ out of the jurisdiction had to be supported by an affidavit stating the grounds on which the application is made.
If there is such a rule as the so called rule in Parker v Schuller (1901) 17 TLR 299 it is a rule that the court must decide an application for permission to serve out of the jurisdiction on the basis of the cause or causes of action expressly mentioned in the pleadings and the claimant will not be allowed to rely on an alternative cause of action which he seeks to spell out of the facts pleaded if it has not been mentioned: see now Civil Procedure 2011, vol 1, para 6.37.15.1 (or under the RSC, Supreme Court Practice 1999, para 11/1/10).
But there is no analogous rule relating to the exceptions to State immunity.
There is simply a note in Civil Procedure, vol 1 (now para 6.37.24, and formerly, eg at Supreme Court Practice 1999, Vol 1, para 11/1/17) indicating that the practitioner should note that an application for permission to serve the foreign State should show distinctly why the prospective defendant is not absolutely immune from suit.
This is neither a rule nor a Practice Direction nor has it ever been.
There is no analogy between the specific rule for service out of the jurisdiction and the good practice note and therefore no basis for the conclusion of the Court of Appeal that because the basis for absence of immunity was incorrectly identified the English court had no jurisdiction.
That is why the point simply does not arise.
If it had arisen, I would have agreed with the general approach of Lord Phillips.
It is to be noted in particular that in Parker v Schuller itself Romer LJ (at 300) based his decision on the ground very close to that of non disclosure.
He said an application for leave to issue a writ for service out of the jurisdiction ought to be made with great care and looked at strictly.
If a material representation upon which the leave was obtained in the first instance turned out to be unfounded, the plaintiff ought not to be allowed, when an application was made by the defendant to discharge the order for the issue of the writ and the service, to set up another and a distinct cause of action which was not before the judge on the original application.
It was on the representation that the defendants were bound to deliver the goods in England that leave had originally been granted.
In cases of non disclosure, the court has a discretion (a) to set aside the order for service and require a fresh application; or (b) to treat the claim form as validly served, and deal with the non disclosure if necessary by a costs order: Macaulay (Tweeds) Ltd v Independent Harris Tweed Producers Ltd [1961] RPC 184; Kuwait Oil Co (KSC) v Idemitsu Tankers KK, The Hida Maru [1981] 2 Lloyds Rep 510.
By analogy, where the so called rule in Parker v Schuller (1901) 17 TLR 299 might apply in a case where the ground for service out has been incorrectly identified, the court would also have power to grant permission to serve out on a fresh basis and dispense with re service.
LORD CLARKE
I agree that the appeal should be allowed for the reasons given by Lord Phillips.
I add a short judgment of my own because of the difference of opinion between Lord Phillips and Lord Mance, Lord Collins and Lord Walker on the first issue.
As to the fourth issue, I agree with Lord Collins that the point does not arise but, if it does, like him I agree with Lord Phillips observations on the so called rule in Parker v Schuller (1901) 17 TLR 299.
The question raised by the first issue is whether these proceedings are proceedings relating to a commercial transaction entered into by the state of Argentina within the meaning of section 3(1)(a) of the State Immunity Act 1978 (the 1978 Act).
The Court of Appeal held that they are not.
As Lord Phillips observes at para 20, it is common ground that the New York proceedings in which NML obtained judgment against Argentina were such proceedings.
The contrary would have been unarguable because they were brought in order to establish Argentinas liability under the bonds described by Lord Phillips.
NMLs argument is that, if the New York proceedings related to a commercial transaction, it is but a short step to hold that these proceedings, which were brought in order to enforce a judgment in respect of a liability under the bonds, are also proceedings relating to a commercial transaction.
I agree.
As ever, all depends upon the context, but it seems to me to follow naturally from the conclusion that the New York proceedings were such proceedings that the same is true of these.
Both have the same purpose, namely to enforce Argentinas liabilities under commercial bonds.
There is nothing in the language of section 3(1) to lead to any other conclusion.
The Court of Appeal reached its conclusion in the light of the decision of Stanley Burnton J in AIC Ltd v Federal Government of Nigeria [2003] EWHC 1357 (QB) and in the light of dicta in the Court of Appeal in Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2006] EWCA Civ 1529, [2007] QB 886.
Lord Phillips has set out the relevant parts of the judgments in those cases at paras 21 and 23 and para 25 respectively.
In Svenska the judgment of the court was given by Moore Bick LJ.
Scott Baker LJ and I were the other two members of the court.
I have now reached the conclusion that the decision in AIC and the dicta in para 137 of Svenska (to which I was a party) were wrong, essentially for the reasons given by Lord Phillips at paras 26 to 41 which I adopt without repeating.
Lord Mance has reached a different view.
He notes in para 84 that in para 42 Lord Phillips recognises that the conclusion that he has reached may not have occurred to the draftsman of the 1978 Act or to Parliament.
Lord Mance concludes that Lord Phillips approach and conclusions are not justified.
He does so principally by looking at circumstances as they existed at the time the 1978 Act was enacted.
However, in my opinion, that is to approach the construction of section 3(1)(a) of the Act too narrowly.
It is stated in Bennion on Statutory Interpretation, 5th ed (2008) at section 288 that, unless a contrary intention appears, an enactment is intended to develop in meaning with developing circumstances and should be given what Bennion calls an updating construction to allow for changes since the Act was initially framed.
Bennion distinguishes that case, which he calls the usual case, from the comparatively rare case of the Act which is intended to be of unchanging effect.
The commentary to section 288 states that the court must, in interpreting an Act, make allowances for the fact that the surrounding legal conditions prevailing on the date of its passing have changed.
That approach seems to me to be entirely consistent with that of Lady Hale in Yemshaw v Hounslow London Borough Council (Secretary of State for Communiteis and Local Government intervening) [2011] UKSC 3, [2011] 1 WLR 433, paras 25 to 28, where she was considering whether words such as violence in a statute could be given an updated meaning.
She concluded that the question was whether an updated meaning was consistent with the statutory purpose.
See also Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27, per Lord Clyde at 49 50, where he said in the context of the meaning of family in the Rent Acts: The judges in Helby vs Rafferty [1979] 1 WLR 13 had difficulty in accepting that a word which had been repeated throughout the successive Rent Acts could change its meaning from time to time.
But as a matter of construction I see no grounds for treating the provisions with which we are concerned as being in the relatively rare category of cases where Parliament intended the language to be fixed at the time when the original Act was passed.
The rule of contemporary exposition should be applied only in relation to very old statutes (Governors of Campbell College, Belfast v Commissioner Northern Ireland Valuation [1964] 2 All ER 705).
The general presumption is that an updating construction is to be applied (Bennion on Statutory Interpretation, 3rd ed p 686).
Such an approach was recently adopted by this House in Reg v Ireland [1988] AC 147.
In my opinion it is appropriate and consistent with the statutory purpose of the 1978 Act to give it an updated meaning.
The question is whether, viewed at the time the question arises, particular proceedings for the enforcement of a particular foreign judgment are proceedings relating to a commercial transaction.
At the time the 1978 Act was enacted there was no machinery for seeking permission to serve proceedings out of the jurisdiction in respect of a claim to enforce either an arbitration award or a foreign judgment.
It could thus be said with force that at that time it was not contemplated that proceedings could be brought in England on a foreign judgment, at any rate unless the defendant accepted service of them.
I note that section 12(6) of the 1978 Act permits a state to accept service of proceedings against it in a particular manner, including no doubt proceedings to enforce a foreign judgment.
As Lord Phillips says at para 42, prior to 1978 there had been no attempts to enforce in the United Kingdom judgments against states.
However, he adds that section 12(7) makes it plain that service on a sovereign state requires permission, which could only be granted in accordance with the rules of court governing service out of the jurisdiction.
In my opinion, Parliament must have recognised that those rules, then RSC Order 11, would be likely to be amended from time to time and, indeed, may well have contemplated that at some future date a rule would be introduced permitting permission to be given allowing service out of the jurisdiction.
As Lord Collins explains at para 114, such a rule was introduced with effect from January 1 1984 in RSC Order 11 r 1(1)(m).
It subsequently became CPR 6.20(9) and is now CPR 6BPD para 3.1(10), which provides for service of proceedings out of the jurisdiction where a claim is made to enforce any judgment or arbitral award.
As I see it, the question is whether such proceedings are proceedings relating to a commercial transaction within section 3(1)(a) in circumstances where such proceedings are contemplated by the present rules of court.
I would answer that question in the affirmative.
As Lord Phillips has explained, there was during the 20th century a growing recognition round the world of the restrictive doctrine of state immunity under which immunity related to government acts in the exercise of sovereign authority (acta jure imperii) but not to commercial activities carried on by the state (acta jure gestionis).
As I see it, the conclusion that these proceedings are proceedings relating to a commercial transaction is no more than a further example of that growing recognition.
The question arises in the context of the particular proceedings in this case.
As Lord Phillips observes at para 29, the question in these proceedings is whether Argentina enjoys state immunity.
I agree with him that, there being no principle of international law under which state A is immune from proceedings brought in state B in order to enforce a judgment given against it by the courts of state C where state A did not enjoy immunity in respect of the proceedings that gave rise to that judgment, under international law the question whether Argentina enjoys immunity in these proceedings depends upon whether its liability arises out of acta jure imperii or acta jure gestionis.
That involves a consideration of the nature of the underlying transaction and demonstrates that the proceedings, at any rate on the facts of this case, relate to a commercial transaction.
I agree with Lord Collins that the expression relating to in section 3(1)(a) can be given a narrow or wide meaning.
I also agree with him that these are proceedings relating to the foreign judgment.
The question is whether they are also proceedings relating to a commercial transaction entered into by Argentina.
I agree with Lord Collins in para 111 that the wider meaning would give effect to the practical reality that the proceedings relate to liability under the bonds, the issue of which was plainly a commercial transaction for the purposes of section 3.
For my part, I see no reason why, in construing the meaning of relating to, the court should not reflect that practical reality.
I agree with Lord Collins in para 112 that a potential overlap with the arbitration provision in section 9 does not support a narrow interpretation and that there is no warrant for holding that section 3(1)(a) should be interpreted as requiring a link with the territorial jurisdiction of the United Kingdom.
I also agree with him that the absence of reasoning in the Canadian case to which he refers in para 113 makes it of little assistance.
In para 114 Lord Collins notes that it was decided in Perry v Zissis [1977] 1 Lloyds Rep 607 that, since a defendant could not be served out of the jurisdiction in an action on a foreign judgment, no freezing injunction could be granted in respect of assets within the jurisdiction.
I agree that that was indeed the position at that time.
The position would surely be different now that the rules have been changed.
Finally I agree with Lord Collins that it is not likely that section 31 of the Civil Jurisdiction and Judgments Act 1982 would have been enacted in the form in which it was if Parliament had thought that the 1978 Act already applied to a class of foreign judgments.
However, Lord Collins accepts at para 115 that neither of those points is conclusive as to the meaning of section 3.
That is because there is no impediment in international law to the institution of proceedings to enforce a foreign judgment.
Lord Collins adds that it is now possible to serve a foreign sovereign out of the jurisdiction and that the 1978 Act could be construed in the light of present circumstances.
He cites Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27, 49 and Yemshaw [2011] 1 WLR 433, paras 5 to 27 for that proposition.
As stated in para 144 above, I would go further and hold that it should be given an updated meaning.
As Lord Clyde said in Fitzpatrick in the passage quoted above, the general presumption is that an updating construction is to be applied.
As I see it, once it is concluded that an updating construction should be applied, the wider meaning would give effect to the practical reality that the sole purpose of the proceedings is to enforce Argentinas liability under a commercial transaction and that there is no impediment to such a construction in international law, both policy and principle lead to the conclusion that the wider interpretation is to be preferred.
APPENDIX 1 State Immunity Act 1978 Immunity from jurisdiction "1.(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act. (2)A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.
Exceptions from immunity 2.(1)A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom. (2)A State may submit after the dispute giving rise to the proceedings has arisen or by a prior written agreement; but a provision in any agreement that it is to be governed by the law of the United Kingdom is not to be regarded as a submission. (3)A State is deemed to have submitted (a) if it has instituted the proceedings; or (b) subject to subsections (4) and (5) below, if it has intervened or taken any step in the proceedings. (4)Subsection (3)(b) above does not apply to intervention or any step taken for the purpose only of (a) claiming immunity; or (b) asserting an interest in property in circumstances such that the State would have been entitled to immunity if the proceedings had been brought against it. (5)Subsection (3)(b) above does not apply to any step taken by the State in ignorance of facts entitling it to immunity if those facts could not reasonably have been ascertained and immunity is claimed as soon as reasonably practicable. (6)A submission in respect of any proceedings extends to any appeal but not to any counter claim unless it arises out of the same legal relationship or facts as the claim. (7)The head of a State's diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to submit on behalf of the State in respect of any proceedings; and any person who has entered into a contract on behalf of and with the authority of a State shall be deemed to have authority to submit on its behalf in respect of proceedings arising out of the contract. 3.(1)A State is not immune as respects proceedings relating to (a) a commercial transaction entered into by the State; or (b)an obligation of the State which by virtue of a contract (whether a commercial transaction or not) falls to be performed wholly or partly in the United Kingdom. (2)This section does not apply if the parties to the dispute are States or have otherwise agreed in writing; and subsection (1)(b) above does not apply if the contract (not being a commercial transaction) was made in the territory of the State concerned and the obligation in question is governed by its administrative law. (3)In this section "commercial transaction" means (a)any contract for the supply of goods or services; (b)any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and (c)any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority; but neither paragraph of subsection (1) above applies to a contract of employment between a State and an individual. 4.( 1) A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work to be wholly or partly performed there. (2) Subject to subsections (3) and (4) below, this section does not apply if (a) at the time when the proceedings are brought the individual is a national of the State concerned; or (b) at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or (c) the parties to the contract have otherwise agreed in writing. (3) Where the work is for an office, agency or establishment maintained by the State in the United Kingdom for commercial purposes, subsection (2)(a) and (b) above do not exclude the application of this section unless the individual was, at the time when the contract was made, habitually resident in that State. (4) Subsection (2)(c) above does not exclude the application of this section where the law of the United Kingdom requires the proceedings to be brought before a court of the United Kingdom. (5) In subsection (2)(b) above "national of the United Kingdom " means a citizen of the United Kingdom and Colonies, a person who is a British subject by virtue of section 2, 13 or 16 of the British Nationality Act 1948 or by virtue of the British Nationality Act 1965, a British protected person within the meaning of the said Act of 1948 or a citizen of Southern Rhodesia. (6) In this section "proceedings relating to a contract of employment" includes proceedings between the parties to such a contract in respect of any statutory rights or duties to which they are entitled or subject as employer or employee. 5.
A State is not immune as respects proceedings in respect (a) death or personal injury; or (b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom. 6. (1) A State is not immune as respects proceedings relating to (a) any interest of the State in, or its possession or use of, immovable property in the United Kingdom; or (b) any obligation of the State arising out of its interest in, or its possession or use of, any such property. (2) A State is not immune as respects proceedings relating to any interest of the State in movable or immovable property, being an interest arising by way of succession, gift or bona vacantia. (3) The fact that a State has or claims an interest in any property shall not preclude any court from exercising in respect of it any jurisdiction relating to the estates of deceased persons or persons of unsound mind or to insolvency, the winding up of companies or the administration of trusts. (4) A court may entertain proceedings against a person other than a State notwithstanding that the proceedings relate to property (a) which is in the possession or control of a State; or (b) in which a State claims an interest, if the State would not have been immune had the proceedings been brought against it or, in a case within paragraph (b) above, if the claim is neither admitted nor supported by prima facie evidence. 7.
A State is not immune as respects proceedings relating to (a) any patent, trade mark, design or plant breeders rights belonging to the State and registered or protected in the United Kingdom or for which the State has applied in the United Kingdom; (b) an alleged infringement by the State in the United Kingdom of any patent, trade mark, design, plant breeders' rights or copyright; or (c) the right to use a trade or business name in the United Kingdom. 8.( 1) A State is not immune as respects proceedings relating to its membership of a body corporate, an unincorporated body Membership or a partnership which (a) has members other than States; and (b) is incorporated or constituted under the law of the United Kingdom or is controlled from or has its principal place of business in the United Kingdom, being proceedings arising between the State and the body or its other members or, as the case may be, between the State and the other partners. (2) This section does not apply if provision to the contrary has been made by an agreement in writing between the parties to the dispute or by the constitution or other instrument establishing or regulating the body or partnership in question. 9. (1)Where a State has agreed in writing to submit a dispute which has arisen, or may arise, to arbitration, the State is not immune as respects proceedings in the courts of the United Kingdom which relate to the arbitration. (2)This section has effect subject to any contrary provision in the arbitration agreement and does not apply to any arbitration agreement between States. 10(l) This section applies to (a) Admiralty proceedings ; (b) proceedings on any claim which could be made the subject of Admiralty proceedings. (2) A State is not immune as respects (a) an action in rem against a ship belonging to that State; or (b) an action in personam for enforcing a claim in connection with such a ship, if, at the time when the cause of action arose, the ship was in use or intended for use for commercial purposes. (3) Where an action in rem is brought against a ship belonging to a State for enforcing a claim in connection with another ship belonging to that State, subsection (2)(a) above does not apply as respects the first mentioned ship unless, at the time when the cause of action relating to the other ship arose, both ships were in use or intended for use for commercial purposes. (4) A State is not immune as respects (a) an action in rem against a cargo belonging to that State if both the cargo and the ship carrying it were, at the time when the cause of action arose, in use or intended for use for commercial purposes ; or (b) an action in personam for enforcing a claim in connection with such a cargo if the ship carrying it was then in use or intended for use as aforesaid. (5) In the foregoing provisions references to a ship or cargo belonging to a State include references to a ship or cargo in its possession or control or in which it claims an interest; and, subject to subsection (4) above, subsection (2) above applies to property other than a ship as it applies to a ship. (6) Sections 3 to 5 above do not apply to proceedings of the kind described in subsection (1) above if the State in question is a party to the Brussels Convention and the claim relates to the operation of a ship owned operated by that State, the carriage of cargo or passengers on any such ship or the carriage of cargo owned by that State on any other ship. 11.
A State is not immune as respects proceedings relating to its liability for (a) value added tax, any duty of customs or excise or any agricultural levy; or (b) rates in respect of premises occupied by it for commercial purposes. 12. (1)Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry. (2)Any time for entering an appearance (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the writ or document is received as aforesaid. (3)A State which appears in proceedings cannot thereafter object that subsection (1) above has not been complied with in the case of those proceedings. (4)No judgment in default of appearance shall be given against a State except on proof that subsection (1) above has been complied with and that the time for entering an appearance as extended by subsection (2) above has expired. (5)A copy of any judgment given against a State in default of appearance shall be transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of that State and any time for applying to have the judgment set aside (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the copy of the judgment is received at the Ministry. (6)Subsection (1) above does not prevent the service of a writ or other document in any manner to which the State has agreed and subsections (2) and (4) above do not apply where service is effected in any such manner. (7)This section shall not be construed as applying to proceedings against a State by way of counter claim or to an action in rem; and subsection (1) above shall not be construed as affecting any rules of court whereby leave is required for the service of process outside the jurisdiction. 13. (1)No penalty by way of committal or fine shall be imposed in respect of any failure or refusal by or on behalf of a State to disclose or produce any document or other information for the purposes of proceedings to which it is a party. (2)Subject to subsections (3) and (4) below (a)relief shall not be given against a State by way of injunction or order for specific performance or for the recovery of land or other property; and (b)the property of a State shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for its arrest, detention or sale. (3)Subsection (2) above does not prevent the giving of any relief or the issue of any process with the written consent of the State concerned; and any such consent (which may be contained in a prior agreement) may be expressed so as to apply to a limited extent or generally; but a provision merely submitting to the jurisdiction of the courts is not to be regarded as a consent for the purposes of this subsection. (4)Subsection (2)(b) above does not prevent the issue of any process in respect of property which is for the time being in use or intended for use for commercial purposes; but, in a case not falling within section 10 above, this subsection applies to property of a State party to the European Convention on State Immunity only if (a)the process is for enforcing a judgment which is final within the meaning of section 18(1)(b) below and the State has made a declaration under Article 24 of the Convention; or (b)the process is for enforcing an arbitration award. (5)The head of a State's diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to give on behalf of the State any such consent as is mentioned in subsection (3) above and, for the purposes of subsection (4) above, his certificate to the effect that any property is not in use or intended for use by or on behalf of the State for commercial purposes shall be accepted as sufficient evidence of that fact unless the contrary is proved. (6)In the application of this section to Scotland (a)the reference to "injunction" shall be construed as a reference to "interdict"; (b)for paragraph (b) of subsection (2) above there shall be substituted the following paragraph "(b) the property of a State shall not be subject to any diligence for enforcing a judgment or order of a court or a decree arbitral or, in an action in rem, to arrestment or sale."; and (c)any reference to "process" shall be construed as a reference to "diligence", any reference to "the issue of any process" as a reference to "the doing of diligence" and the reference in subsection (4)(b) above to "an arbitration award" as a reference to "a decree arbitral".
Supplementary provisions 14. (1)The immunities and privileges conferred by this Part of this Act apply to any foreign or commonwealth State other than the United Kingdom; and references to a State include references to (a)the sovereign or other head of that State in his public capacity; (b)the government of that State; and (c)any department of that government, but not to any entity (hereafter referred to as a "separate entity") which is distinct from the executive organs of the government of the State and capable of suing or being sued. (2)A separate entity is immune from the jurisdiction of the courts of the United Kingdom if, and only if (a)the proceedings relate to anything done by it in the exercise of sovereign authority; and (b)the circumstances are such that a State (or, in the case of proceedings to which section 10 above applies, a State which is not a party to the Brussels Convention) would have been so immune. (3)If a separate entity (not being a State's central bank or other monetary authority) submits to the jurisdiction in respect of proceedings in the case of which it is entitled to immunity by virtue of subsection (2) above, subsections (1) to (4) of section 13 above shall apply to it in respect of those proceedings as if references to a State were references to that entity. (4)Property of a State's central bank or other monetary authority shall not be regarded for the purposes of subsection (4) of section 13 above as in use or intended for use for commercial purposes; and where any such bank or authority is a separate entity subsections (1) to (3) of that section shall apply to it as if references to a State were references to the bank or authority. (5)Section 12 above applies to proceedings against the constituent territories of a federal State; and Her Majesty may by Order in Council provide for the other provisions of this Part of this Act to apply to any such constituent territory specified in the Order as they apply to a State. (6)Where the provisions of this Part of this Act do not apply to a constituent territory by virtue of any such Order subsections (2) and (3) above shall apply to it as if it were a separate entity.
PART II JUDGMENTS AGAINST UNITED KINGDOM IN CONVENTION STATES . 18.( 1) This section applies to any judgment given against the United Kingdom by a court in another State party to the European Convention on State Immunity, being a judgment (a) given in proceedings in which the United Kingdom was not entitled to immunity by virtue of provisions corresponding to those of sections 2 to 11 above; and (b) which is final, that is to say, which is not or is no longer subject to appeal or, if given in default of appearance, liable to be set aside. (2) Subject to section 19 below, a judgment to which this PAn ill section applies shall be recognised in any court in the United Kingdom as conclusive between the parties thereto in all proceedings founded on the same cause of action and may be relied on by way of defence or counter claim in such proceedings. (3) Subsection (2) above (but not section 19 below) shall have effect also in relation to any settlement entered into by the United Kingdom before a court in another State party to the Convention which under the law of that State is treated as equivalent to a judgment. (4) In this section references to a court in a State party to the Convention include references to a court in any territory in respect of which it is a party. 19.( 1) A court need not give effect to section 18 above in the case of a judgment (a) if to do so would be manifestly contrary to public policy or if any party to the proceedings in which the judgment was given had no adequate opportunity to present his case; or (b) if the judgment was given without provisions corresponding to those of section 12 above having been complied with and the United Kingdom has not entered an appearance or applied to have the judgment set aside. (2) A court need not give effect to section 18 above in the case of a judgment (a) if proceedings between the same parties, based on the same facts and having the same purpose (i) are pending before a court in the United Kingdom and were the first to be instituted; or (ii) are pending before a court in another State party to the Convention, were the first to be instituted and may result in a judgment to which that section will apply; or (b) if the result of the judgment is inconsistent with the result of another judgment given in proceedings between the same parties and (i) the other judgment is by a court in the United Kingdom and either those proceedings were the first to be instituted or the judgment of that court was given before the first mentioned judgment became final within the meaning of subsection (1)(b) of section 18 above; or (ii) the other judgment is by a court in another State party to the Convention and that section has already become applicable to it. (3) Where the judgment was given against the United Kingdom in proceedings in respect of which the United Kingdom was not entitled to immunity by virtue of a provision corresponding to section 6(2) above, a court need not give effect to section 18 above in respect of the judgment if the court that gave the judgment (a) would not have had jurisdiction in the matter if it had applied rules of jurisdiction corresponding to those applicable to such matters in the United Kingdom; or (b) applied a law other than that indicated by the United Kingdom rules of private international law and would have reached a different conclusion if it had applied the law so indicated. (4) In subsection (2) above references to a court in the United Kingdom include references to a court in any dependent territory in respect of which the United Kingdom is a party to the Convention, and references to a court in another State party to the Convention include references to a court in any territory in respect of which it is a party. " Civil Jurisdiction and Judgments Act 1982 ".
Provisions relating to recognition and enforcement of judgments 31 Overseas judgments given against states, etc (1)A judgment given by a court of an overseas country against a state other than the United Kingdom or the state to which that court belongs shall be recognised and enforced in the United Kingdom if, and only if (a)it would be so recognised and enforced if it had not been given against a state; and (b)that court would have had jurisdiction in the matter if it had applied rules corresponding to those applicable to such matters in the United Kingdom in accordance with sections 2 to 11 of the State Immunity Act 1978. (2)References in subsection (1) to a judgment given against a state include references to judgments of any of the following descriptions given in relation to a state (a)judgments against the government, or a department of the government, of the state but not (except as mentioned in paragraph (c)) judgments against an entity which is distinct from the executive organs of government; (b)judgments against the sovereign or head of state in his public capacity; (c)judgments against any such separate entity as is mentioned in paragraph (a) given in proceedings relating to anything done by it in the exercise of the sovereign authority of the state. (3)Nothing in subsection (1) shall affect the recognition or enforcement in the United Kingdom of a judgment to which Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933 applies by virtue of section 4 of the Carriage of Goods by Road Act 1965, section 17(4) of the Nuclear Installations Act 1965, section [166(4) of the Merchant Shipping Act 1995], [regulation 8 of the Railways (Convention of International Carriage by Rail) Regulations 2005] (4)Sections 12, 13 and 14(3) and (4) of the State Immunity Act 1978 (service of process and procedural privileges) shall apply to proceedings for the recognition or enforcement in the United Kingdom of a judgment given by a court of an overseas country (whether or not that judgment is within subsection (1) of this section) as they apply to other proceedings. (5)In this section "state", in the case of a federal state, includes any of its constituent territories. 50.
In this Act, unless the context otherwise requires . " Contracting State " has the meaning given by section 1(3) ; " the 1968 Convention " has the meaning given by section 1(1), and references to that Convention and to provisions of it are to be construed in accordance with section 1(2) (a) ; " the Conventions " has the meaning given by section 1(1) ; . " overseas country " means any country or territory outside the United Kingdom ; .
Civil Procedure Rules 2008 . 6.20(9) In any proceedings to which rule 6.19 does not apply, a claim form may be served out of the jurisdiction with the permission of the court if a claim is made to enforce any judgment or arbitral award. " APPENDIX 2 EUROPEAN CONVENTION on STATE IMMUNITY Chapter III Effect of Judgment "Article 20 1.
A Contracting State shall give effect to a judgment given against it by a court of another Contracting State: a. if, in accordance with the provisions of Articles 1 to 13, the State could not claim immunity from jurisdiction; and b. if the judgment cannot or can no longer be set aside if obtained by default, or if it is not or is no longer subject to appeal or any other form of ordinary review or to annulment. 2.
Nevertheless, a Contracting State is not obliged to give effect to such a judgment in any case: a. where it would be manifestly contrary to public policy in that State to do so, or where, in the circumstances, either party had no adequate opportunity fairly to present his case; b. where proceedings between the same parties, based on the same facts and having the same purpose: i. are pending before a court of that State and were the first to be instituted; ii. are pending before a court of another Contracting State, were the first to be instituted and may result in a judgment to which the State party to the proceedings must give effect under the terms of this Convention; c. where the result of the judgment is inconsistent with the result of another judgment given between the same parties: i. by a court of the Contracting State, if the proceedings before that court were the first to be instituted or if the other judgment has been given before the judgment satisfied the conditions specified in paragraph 1.b; or ii. by a court of another Contracting State where the other judgment is the first to satisfy the requirements laid down in the present Convention; d. where the provisions of Article 16 have not been observed and the State has not entered an appearance or has not appealed against a judgment by default. 3.
In addition, in the cases provided for in Article 10, a Contracting State is not obliged to give effect to the judgment: a. if the courts of the State of the forum would not have been entitled to assume jurisdiction had they applied, mutatis mutandis, the rules of jurisdiction (other than those mentioned in the annex to the present Convention) which operate in the State against which judgment is given; or b. if the court, by applying a law other than that which would have been applied in accordance with the rules of private international law of that State, has reached a result different from that which would have been reached by applying the law determined by those rules.
However, a Contracting State may not rely upon the grounds of refusal specified in sub paragraphs a and b above if it is bound by an agreement with the State of the forum on the recognition and enforcement of judgments and the judgment fulfils the requirement of that agreement as regards jurisdiction and, where appropriate, the law applied. " APPENDIX 3 The terms of the bonds " The republic has in the fiscal agency agreement irrevocably submitted to the jurisdiction of any New York state or federal court sitting in the Borough of Manhattan and the courts of the republic of Argentina ('the specified courts') over any suit, action or proceeding against it or its properties, assets or revenues with respect to the securities of this series or the fiscal agency agreement (a 'related proceeding') The republic has in the fiscal agency agreement waived any objection to related proceedings in such courts whether on grounds of venue, residence or domicile or on the ground that the related proceedings have been brought in an inconvenient forum.
The republic agrees that a final non appealable judgment in any such related proceeding ('the related judgment') shall be conclusive and binding upon it and may be enforced in any specified court or in any other courts to the jurisdiction of which the republic is or may be subject (the 'other courts') by a suit upon such judgment." "To the extent that the republic or any of its revenues, assets or properties shall be entitled, in any jurisdiction in which any specified court is located, in which any related proceeding may at any time be brought against it or any of its revenues, assets or properties, or in any jurisdiction in which any specified court or other court is located in which any suit, action or proceeding may at any time be brought solely for the purpose of enforcing or executing any related judgment, to any immunity from suit, from the jurisdiction of any such court, from set off, from attachment prior to judgment, from attachment in aid of execution of judgment, from execution of a judgment or from any other legal or judicial process or remedy, and to the extent that in any such jurisdiction there shall be attributed such an immunity, the republic has hereby irrevocably agreed not to claim and has irrevocably waived such immunity to the fullest extent permitted by the laws of such jurisdiction provided further that such agreement and waiver, in so far as it relates to any jurisdiction other than a jurisdiction in which a specified court is located, is given solely for the purpose of enabling the fiscal agent or a holder of securities of this series to enforce or execute a related judgment." . " Lord Collins suggests at para 116 that, but for section 31 and the almost invariable employment of wide express waivers of immunity, it might have been desirable as a matter of policy to give section 3 the wider meaning.
He adds that there would, however, be no principled basis for doing so.
I respectfully disagree.
I do not think that either the enactment of section 31 or the fact that some parties use wide submission and waiver clauses points to a narrow meaning of relating to, whether as a matter of policy or as a matter of principle.
In my opinion, viewed as at the time the question has to be decided these proceedings relate both to the New York judgment and to the underlying commercial transaction. ".
| This appeal relates to bonds issued by the respondent, the Republic of Argentina (Argentina), in respect of which, together with all its other debt, Argentina declared a moratorium in December 2001.
The appellant NML Capital Limited (NML) is an affiliate of a New York based hedge fund, which purchased the bonds at little over half their face value between June 2001 and September 2003 and then pursued the respondent for the return of their full principal value and interest in the New York courts.
On 11 May 2006 NML obtained summary judgment on the bonds from a Federal Court in New York for over $284m.
It then sought to enforce the judgment against assets held by Argentina in England by bringing a common law action on the judgment in London.
NML applied for permission to serve the claim form out of the jurisdiction on Argentina, initially alleging two reasons why Argentina was not entitled to state immunity.
The first was that Argentina had waived immunity as a term of its agreement with Bankers Trust to issue the bonds, and the second that the claim constituted proceedings relating to a commercial transaction and so fell within the exception in section 3(1)(a) of the State Immunity Act 1978 (the 1978 Act).
Permission was granted and the proceedings were served.
Argentina then applied to have the order for service set aside.
NML resisted this application by reliance on two different grounds: the provisions of section 31 of the Civil Jurisdiction and Judgments Act 1982 (the 1982 Act) and terms as to waiver and jurisdiction in the bonds themselves.
The High Court dismissed Argentinas application but this decision was reversed by the Court of Appeal, which held that Argentina was protected by state immunity from the claim.
The Supreme Court unanimously allows the appeal.
Lord Phillips and Lord Clarke find that the claim falls within the scope of section 3(1)(a) of the 1978 Act.
Lord Mance, Lord Collins and Lord Walker disagree on this point but all agree that the appeal should in any event succeed by reason of the provisions of s 31 of the 1982 Act and by Argentinas submission and waiver of immunity in the bonds.
The scope of s 3(1)(a) of the 1978 Act Sections 1 11 of the 1978 Act are a comprehensive statement of the scope of state immunity under the law of the United Kingdom.
During the twentieth century there was a growing recognition around the world of the restrictive doctrine of state immunity, under which immunity was given to governmental acts in the exercise of sovereign authority but not to commercial activities carried on by the state [10].
S 3(1)(a) made it clear that the UK was adopting the restrictive doctrine.
The context for interpreting the phrase proceedings relating to a commercial transaction in this case was the enforcement of a judgment which absent state immunity would be permitted by Civil Procedure Rule 6.20(9).
Lord Phillips and Lord Clarke considered that the words relating to should be given a broad rather than a narrow meaning.
The proceedings related both to the foreign judgment and to the transaction underlying that judgment [26].
Although Parliament was unlikely to have thought the 1978 Act to apply to a class of foreign judgments at a time when there was no procedural machinery to serve a defendant out of the jurisdiction, s 3(1)(a) should be given an updated meaning consistent with the statutory purpose of the act [152].
Lord Mance did not think it was justified to treat the wording of s 3(1)(a) as applying to a foreign judgment against a foreign state, which had long been recognised as a special area of private international law [80].
S 31 of the 1982 Act was the means by which Parliament had achieved for the first time a comprehensive treatment of the issue of state immunity in respect of foreign judgments [98][118].
Lord Collins (with whom Lord Walker agreed) pointed to the almost invariable use in international loan agreements and bond issues since the 1970s of clauses providing for submission to national jurisdiction and waivers of immunity [103].
He preferred a narrow interpretation of s 3(1)(a).
There was no policy reason to give it a wider meaning in the light of s 31 of the 1982 Act and the widespread use of express waivers [116].
Effect of s 31 of the 1982 Act S 31 of the 1982 Act reflected and in part replaced the categories of exemption from state immunity set out in the 1978 Act as far as foreign judgments were concerned.
It was an alternative scheme rather than an additional hurdle [47].
State immunity could not be raised as a bar to the recognition and enforcement of a foreign judgment if, under the principles of international law recognised in this jurisdiction, the state against whom the judgment was given was not entitled to immunity in respect of the claim [49].
Did the bonds contain a submission to the jurisdiction of the English court? The High Court had correctly held that the agreement in the bond was more than a mere waiver and amounted to a submission to jurisdiction [59].
It was the only meaning the provision could sensibly bear [62] [128].
Could NML rely on new issues at the High Court hearing? Lord Phillips considered that the rule in Parker v Schuller (1901) should no longer be applied.
Allowing a party to amend a pleading where no prejudice was caused to the other party that could not be dealt with by an appropriate order for costs accorded with the overriding objective [75].
The other justices did not think that the rule applied on the facts of this case, but agreed with his observations.
|
This appeal raises difficult and important issues about the effect of adjudication pursuant to provisions implied into a construction contract under section 108(5) of the Housing Grants, Construction and Regeneration Act 1996, read with the Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998 No 649).
The construction contract (within the broad meaning assigned by section 104(2) of the 1996 Act) was a contract by the respondent, Aspect Contracts (Asbestos) Ltd (Aspect), to carry out an asbestos survey and report on blocks of maisonettes in Hounslow which the appellant building contractor, Higgins Construction Plc (Higgins), was considering redeveloping.
The survey was conducted in March 2004 and the report was dated 27 April 2004.
During the redevelopment in early 2005, Higgins allegedly found and had to have removed asbestos containing materials which had not been identified in the report.
A dispute consequently arose with Aspect.
Negotiation and mediation having failed, Higgins referred the dispute to adjudication, claiming 822,482 damages plus interest.
The claim was for breach of contractual and/or conterminous tortious duties to exercise reasonable skill and care.
By a decision dated 28 July 2009, the adjudicator, Ms Rosemary Jackson QC, concluded that Aspect had been in breach of such duties causing Higgins loss in various, though not all, respects alleged by Higgins, and ordered that Aspect pay Higgins 490,627, plus interest which amounted, at the date of the decision, to 166,421.05.
She also ordered Aspect to pay her own fees of 8,750 plus VAT.
On 6 August 2009 Aspect duly paid Higgins 658,017, a sum which included further interest from the date of the decision.
Higgins did not commence any proceedings, whether to recover the balance of its claim, 331,855 plus interest, or otherwise.
The limitation period expired on the face of it on or about 27 April 2010 for any action by Higgins founded on breach of the construction contract and at the very latest by early 2011 for any action founded on tort: Limitation Act 1980, sections 2 and 5.
Higgins was evidently content to let matters rest.
It did not, so far as appears, ask Aspect to agree, and Aspect did not agree, to treat the adjudicators decision as final.
Aspects claim
Only after the expiry of both the above mentioned limitation periods did Aspect on 3 February 2012 itself commence the present proceedings seeking to recover the sum it paid on 6 August 2009.
It did so without giving prior notice that it was dissatisfied with Ms Jacksons decision or going through any pre action protocol procedure.
Aspect confines itself expressly to a contention that no sum was due to Higgins on an examination of the merits of the original dispute, regarding the alleged failure to identify and report the existence of asbestos containing materials beyond those mentioned in its report.
It claims that the sum of 658,017 is repayable accordingly.
Higgins however seeks to counterclaim for the 331,855 balance of its claim and interest.
Only in relation to this balance does Aspect raise a limitation plea, under sections 2 and 5 of the Limitation Act.
These sections provide that any action founded on, respectively, tort or simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.
Aspect rests its claim on an implied term, alternatively in restitution.
The implied term is that: in the event that a dispute between the parties was referred to adjudication pursuant to the Scheme and one party paid money to the other in compliance with the adjudicators decision made pursuant to the Scheme, that party remained entitled to have the decision finally determined by legal proceedings and, if or to the extent that the dispute was finally determined in its favour, to have that money repaid to it.
The present proceedings
By consent on 31 January 2013 Akenhead J ordered the trial of a preliminary issue as to (a) the existence of the implied term, (b) the limitation period applicable to any such implied term, (c) the limitation period applicable to the counterclaim, and (d) the existence or otherwise of a claim for restitution.
By a clear and comprehensive judgment dated 23 May 2013, he held that there was no such implied term as alleged, that Aspect could have claimed a declaration of non liability at any time within six years after performance of the contract, upon the grant of which declaration the court would then have had ancillary and consequential power to order repayment, but that any such claim was now time barred.
He also held that there was, in these circumstances and in the absence of any recognised basis like mistake or duress and of any right to have the adjudicators decision set aside, no claim in restitution.
The Court of Appeal (Longmore, Rimer and Tomlinson LJJ) [2014] 1 WLR 1220, in a concise judgment given by Longmore LJ, reached an opposite conclusion.
It held that the Scheme implied that any overpayment could be recovered.
It noted that Higginss contrary case faced a number of difficult questions, such as, first, the fairness of a conclusion that required any claim for repayment to be made within six years of the original contractual performance, second, the juridical basis for a conclusion that a declaration of non liability would carry with it a right to order repayment and, third, the correctness of the judges conclusion that a declaration of non liability was liable to be time barred.
Aspect did not pursue its pleaded restitutionary claim before the Court of Appeal.
The present appeal follows by this courts permission.
In giving permission, the court informed the parties that: without prejudging whether it would be open to [Aspect] to raise any positive point on restitution, the Supreme Court may wish as part of the context to have explained the legal position regarding restitution.
The parties accordingly exchanged cases which addressed the position regarding restitution, and, during the course of the hearing, Miss Fiona Sinclair QC for Aspect sought permission to raise a case in restitution based on the payment made.
Mr Andrew Bartlett QC for Higgins resisted this, and the court heard submissions on it de bene esse.
In the event, since the issue was raised at first instance and is one of pure law, I consider that permission should be granted to Aspect to rely upon restitution as an alternative to its primary claim based on an implied term.
The legislation
Section 108 of the Housing Grants, Construction and Regeneration Act 1996 (in its original form, as in force before its presently immaterial amendment by the Local Democracy, Economic Development and Construction Act 2009) provides: 108.
Right to refer disputes to adjudication. (1) A party to a construction contract has the right to refer a dispute arising under the contract for adjudication under a procedure complying with this section.
For this purpose dispute includes any difference. (2) The contract shall (a) enable a party to give notice at any time of his intention to refer a dispute to adjudication; (b) provide a timetable with the object of securing the appointment of the adjudicator and referral of the dispute to him within 7 days of such notice; (c) require the adjudicator to reach a decision within 28 days of referral or such longer period as is agreed by the parties after the dispute has been referred; (d) allow the adjudicator to extend the period of 28 days by up to 14 days, with the consent of the party by whom the dispute was referred; (e) impose a duty on the adjudicator to act impartially; and (f) enable the adjudicator to take the initiative in ascertaining the facts and the law. (3) The contract shall provide that the decision of the adjudicator is binding until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement.
The parties may agree to accept the decision of the adjudicator as finally determining the dispute. (5) If the contract does not comply with the requirements of subsections (1) to (4), the adjudication provisions of the Scheme for
Construction Contracts apply
Section 114 provides that: (1) The Minister shall by regulations make a scheme (the Scheme for Construction Contracts) containing provision about the matters referred to in the preceding provisions of this Part. (4) Where any provisions of the Scheme for Construction Contracts apply by virtue of this Part in default of contractual provision agreed by the parties, they have effect as implied terms of the contract concerned.
The Scheme contained in the Schedule to the Regulations is in parallel terms to those indicated in section 108(1) to (4), with slight differences which no one suggests are significant.
It provides: 1(1) Any party to a construction contract (the referring party) may give written notice (the notice of adjudication) at any time of his intention to refer any dispute arising under the contract, to adjudication. (3) The notice of adjudication shall set out briefly the nature and a brief description of the dispute (a) and of the parties involved, (b) details of where and when the dispute has arisen, 19(1) The adjudicator shall reach his decision not later than twenty eight days after receipt of the referral (a) notice mentioned in paragraph 7(1), or (b) if the referring party so consents, or forty two days after receipt of the referral notice (c) such period exceeding twenty eight days after receipt of the referral notice as the parties to the dispute may, after the giving of that notice, agree. 23(2) The decision of the adjudicator shall be binding on the parties, and they shall comply with it until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement between the parties.
By providing that the decision of an adjudicator is binding and that the parties shall comply with it, paragraph 23(2) of the Scheme makes the decision enforceable for the time being.
It is enforceable by action founded on the contractual obligation to comply with the decision combined, in a normal case, with an application for summary judgment.
The limitation period for enforcement will be six years from the adjudicators decision.
But the decision is only binding and the obligation to comply with it only lasts until the dispute is finally determined in one of the ways identified.
By use of the word until, paragraph 23(2) appears to contemplate that there will necessarily be such a determination.
The short time limits provided by paragraph 19(1) also indicate that adjudication was envisaged as a speedy provisional measure, pending such a determination.
But there is nothing to prevent adjudication being requested long after a dispute has arisen and without the commencement of any proceedings.
Further, it seems improbable that the Scheme imposes on either party any sort of obligation to start court or arbitration proceedings in order to confirm its entitlement.
Either or both of the parties might understandably be content to let matters rest.
Section 108(3) of the Act and paragraph 23(2) of the Scheme might in the above circumstances have been more realistic if they had expressed the binding nature of an adjudicators decision as extending unless and until.
As already explained, it seems clear that neither party is obliged ever to commence legal proceedings, and that if neither does the adjudicators decision continues to bind.
In this respect, an adjudication cannot be equated with an interim payment ordered by the court in the course of court proceedings.
The recipient of such an interim payment cannot discontinue the proceedings without the payers consent or the courts permission, and is therefore at risk of being ordered to make repayment as a condition of discontinuance: see CPR 25.8(2)(a) and 38.2(2)(b).
Analysis of the question on this appeal
The key question is how far a paying party, here Aspect, is able to disturb the provisional position established by an adjudicators decision, by itself commencing proceedings after the time has elapsed when Higgins could bring any claim founded on the original breach of contract or tort.
That depends upon the basis of any claim by Aspect to recover the sum it has provisionally paid under the adjudicators decision.
Just as Higgins has a right to enforce payment pursuant to an adjudicators decision, so Aspect must on some basis be able to recover such a payment, if it is established, by legal proceedings, arbitration or agreement, that such sum was not due in respect of the original dispute.
Without the ability to recover such a payment, the Scheme makes no sense.
Adjudication is conceived as a provisional measure.
At a cash flow level, Higgins remains entitled to the payment unless and until the outcome of legal proceedings, arbitration or negotiations, leads to a contrary conclusion.
But at the deeper level of the substantive dispute between the parties, the parties have rights and liabilities, which may differ from those identified by the adjudication decision, and on which the party making a payment under an adjudication decision must be entitled to rely in legal proceedings, arbitration or negotiations, in order to make good a claim to repayment on some basis.
Aspects case is, as I have noted, that this entitlement arises from the payment, to the extent that this is subsequently shown not to have been due, and is based on an implied term or alternatively restitution.
Higginss primary case
In contrast, on Higginss case, Aspects only entitlement is to seek declaratory relief, and, after obtaining a declaration, to rely on a power in the court to grant consequential relief by way of an order for repayment.
Higgins submits that any such claim to declaratory relief became time barred in contract in April 2010 and in tort at the same date (or at latest by early 2011), so that there is now no way in which Aspect can in the present proceedings ask the court to order repayment.
That corresponds with the result at which Akenhead J arrived.
It involves in Higginss submission an appropriate correlation of the time limits within which Higgins can pursue claims against Aspect and Aspect can pursue claims against Higgins.
I have no difficulty in accepting that Aspect could at any time, from at least the development in early 2005 of the original dispute, have asked the court to declare that it had not committed any breach of contract or incurred any tortious liability to Higgins, and that the court would have regarded proceedings of this nature for a declaration as entirely admissible and appropriate.
But, in common with the Court of Appeal, I cannot accept that this is a complete analysis of the route by which Aspect could and should have pursued the claim which it now brings.
It ignores a core ingredient of and the immediate trigger to Aspects current claim, which is that it has been ordered to make and has made a large payment in 2009.
It is artificial to treat a claim to recover that sum as based on an alleged cause of action accruing in 2004 or early 2005.
To treat Aspects remedy as being to seek a declaration, and then to invite the court to use its alleged consequential powers in order to grant the relief which is the true object of the proceedings, is equally artificial.
Mr Bartlett did not, to my mind, identify any authority for the proposition that a court can or should make orders consequential upon a declaration of non liability for the payment of any sums which the recipient would not have a right to claim on some independent juridical basis.
The majority judgments in Guaranty Trust Company of New York v Hannay [1915] 2 KB 536 do not support such a proposition.
They show that declarations may be given in situations where there is, or is as yet, no cause of action.
A common example is where a claim is made by an insured against liability insurers seeking a declaration that they will be liable to indemnify him in respect of any third party liability which he may be found to have.
But consequential relief depends, as Pickford LJ indicated at pp 558 559, upon the existence of a cause of action, or interference, actual or threatened, with a right.
When Bankes LJ said at p 572 that the word relief was not confined to relief in respect of a cause of action, he was referring to the requirement under the Judicature Act 1873, section 100 and the then RSC O XVI rule 1 that there must in every action be a person seeking relief, and to the possibility of claiming relief by way of a declaration when no such cause of action exists.
He was not suggesting that a claim for such a declaration could be accompanied by consequential relief ordering a payment to which there was no independent right.
I am furthermore unable to accept that a claim for a declaration that a person has not committed a tort or breach of contract is a claim falling within, respectively, section 2 or 5 of the Limitation Act 1980, or that either section could be applied by analogy as Higgins also submitted.
A claim for a declaration that a contractual right has accrued has been held at first instance to be a claim involving a cause of action founded on simple contract: P&O Nedlloyd BV v Arab Metals Co (The UB Tiger) [2005] EWHC 1276 (Comm), [2005] 1 WLR 3733, para 20.
Accepting without considering that analysis, a claim for a declaration that a person has not broken a contract might also be regarded as a claim founded on simple contract (though a claim that a person was not party to any contract certainly could not be); however a claim that a person has not broken a contract could not be a claim in respect of which it could sensibly be said that any cause of action had accrued, still less accrued on any particular date.
On that basis section 5 could not apply, directly or by analogy.
As to section 2, a claim that a person had not committed a tort could not in any circumstances sensibly be regarded as a claim founded on tort, quite apart from the impossibility of identifying any date on which the cause of action accrued, for the purpose of applying section 2 either directly or by analogy.
The special time limit for negligence claims provided by section 14A of the Limitation Act 1980 would also be impossible to apply in relation to a claim for negative declaratory relief as to the absence of any liability in tort.
Miss Sinclair submitted that what the adjudicator described as Higginss coterminous tort claim was capable of being submitted to adjudication, along with its contract claim.
In support of that proposition, Miss Sinclair referred to Premium Nafta Products Ltd v Fili Shipping Co Ltd [2007] UKHL 40, as superseding the more limited approach taken in Fillite (Runcorn) Ltd v Aqua lift (1989) 45 BLR 27 (CA) see also Woolf v Collis Removal Service [1948] 1 KB 11, 18 19, Astro Vencedor Co Na SA v Mabanaft GmbH [1971] 2 QB 588, 595, Empresa Exportadora de Azucar v Industria Azucarera Nacional SA [1983] 2 Lloyds Rep 171, 183 and Chimimport plc v G DAlexio Sas [1994] 2 Lloyds Rep 366, 371 372; Mr Bartlett did not accept that the approach taken in Premium Nafta could apply to statutory adjudication, but I am very content to proceed on that basis.
But Mr Bartlett went on to submit, with reference to section 108(1) of the 1996 Act and paragraph 1(1) of the Scheme, that this would necessarily mean that any tort claim which Higgins has must, even if it could be the subject of adjudication at all, be capable of being regarded as a claim arising under the contract, and to submit that such a claim would not be subject to section 14A of the 1980 Act (or, presumably, to section 2).
It is unnecessary to say more than that I do not, as at present advised, accept this submission.
Assuming, as I am presently prepared to, that a coterminous tort claim can fall within the language of section 108(1) of the 1996 Act and paragraph 1(1), it does not follow that it ceases to be a tort claim for limitation purposes.
So the usual rule would apply that limitation periods in contract and tort are separate matters, even where the tort claim is based essentially on negligence in the performance of contractual obligations: see eg Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, esp at p 185E G per Lord Goff.
Finally, I understand Mr Bartlett also to suggest that, whatever the limitation position, Aspect, having been adjudicated liable in both contract and tort, would need to bring proceedings to establish that it was not liable within the limitation periods applicable to both, if it was to recover anything.
Suffice it to say that I am unpersuaded by this suggestion, though this is not critical to the decision of this appeal in view of what follows below.
In my view, it is a necessary legal consequence of the Scheme implied by the 1996 Act into the parties contractual relationship that Aspect must have a directly enforceable right to recover any overpayment to which the adjudicators decision can be shown to have led, once there has been a final determination of the dispute.
I agree with the Court of Appeal that the obvious basis for recognition of this right is by way of implication arising from the Scheme provisions which are themselves implied into the construction contract.
I prefer to express the implication in the way I have, because it focuses on the core element of Aspects claim which is to recover an alleged overpayment.
The implied term which Aspect pleads tends to open the way to Higginss argument, which I reject, that the essence of Aspects claim is to declaratory relief and that this is relief which Aspect has always been (remained) entitled to pursue, since the contract was first performed, and has now become time barred.
I emphasise that, on whatever basis the right arises, the same restitutionary considerations underlie it.
If and to the extent that the basis on which the payment was made falls away as a result of the courts determination, an overpayment is, retrospectively, established.
Either by contractual implication or, if not, then by virtue of an independent restitutionary obligation, repayment must to that extent be required.
The suggested implication, on which the preliminary issue focuses, goes to repayment of the sum (over)paid.
But it seems inconceivable that any such repayment should be made in a case such as the present, years later without the payee having also in the meanwhile a potential liability to pay interest at an appropriate rate, to be fixed by the court, if not agreed between the parties.
In restitution, there would be no doubt about this potential liability, reflecting the time cost of the payment to the payer and the benefit to the payee: see eg Sempra Metals Ltd v Inland Revenue Commissioners [2007] UKHL 34, [2008] AC 561.
Whether by way of further implication or to give effect to an additional restitutionary right existing independently as a matter of law, the court must have power to order the payee to pay appropriate interest in respect of the overpayment.
This conclusion follows from the fact that, once it is determined by a court or arbitration tribunal that an adjudicators decision involved the payment of more than was actually due in accordance with the parties substantive rights, the adjudicators decision ceases, retrospectively, to bind.
Since Aspects cause of action arises from payment and is only for repayment, it is, whether analysed in implied contractual or restitutionary terms, a cause of action which could be brought at any time within six years after the date of payment to Higgins, ie after 6 August 2009.
For this purpose an independent restitutionary claim falls to be regarded as founded on simple contract within section 5 of the Limitation Act: Kleinwort Benson Ltd v Sandwell Borough Council [1994] 4 All ER 890, 942 943, per Hobhouse J, not questioned by the House of Lords in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, when it had to consider whether, in the circumstances of that case, section 32(1)(c) of the Act operated so as to extend the normal six year limitation period.
Higgins complains that this gives Aspect a one way throw and undermines finality.
By delaying commencement of the present claim until 2012, Aspect can sue to recover all or part of the 658,017 paid to Higgins, without having the risk of ending up worse off, since Higgins is barred by limitation from pursuing the 331,855 balance of its original claim.
That consequence follows, however, from Higginss own decision not to commence legal proceedings within six years from April 2004 or early 2005 and so itself to take the risk of not confirming (and to forego the possibility of improving upon) the adjudication award it had received.
Adjudication was conceived, as I have stated, as a provisional mechanism, pending a final determination of the dispute.
Understandable though it is that Higgins should wish matters to lie as they are following the adjudication decision, Higgins could not ensure that matters would so lie, or therefore that there would be finality, without either pursuing legal or arbitral proceedings to a conclusion or obtaining Aspects agreement.
Further, as Akenhead J pointed out in para 43 of his judgment, this is not one of those very typical building contract cases where there are set offs and cross claims on each side, each allegedly over topping the other.
In such cases, if there is an adjudication award within six years from performance, without any further proceedings being commenced, both sides are after the six year period time barred in respect of any claim to any balance which they originally contended to be due them.
Any further proceedings would be limited to a claim for repayment by the party required by the adjudication to pay a net balance to the other.
Aspect accepts by its pleadings and Miss Sinclair confirmed in her oral submissions that what Aspect contends for, in support of its claim for repayment, is the determination of the parties original rights and liabilities as they stood when they were adjudicated upon by the adjudicator.
Aspect does not suggest that it is of any relevance that the limitation period would now have expired, if Higgins were now assumed to be bringing an action for the total of 822,482 plus interest originally claimed, or for the 490,627 plus interest awarded by the adjudicator.
Aspect is in my view correct in this approach.
What the Scheme contemplates is the final determination of the dispute referred to the adjudicator, because it is that which determines whether or not the adjudicator was justified in his or her assessment of what was due under the contract.
The Scheme cannot plausibly mean that, by waiting until after the expiry of the limitation period for pursuit of the original contractual or tortious claim by Higgins, Aspect could automatically acquire a right to recover any sum it had paid under the adjudicators award, without the court or arbitration tribunal having to consider the substantive merits of the original dispute, to which the adjudicators decision was directed, at all.
If and so far as the adjudicator correctly evaluated a sum as due between the parties, such sum was both due and settled.
A subsequent court or arbitration determination to the same effect would simply confirm that such sum was due and was correctly settled as being due.
Any limitation period which would apply to a claim for such a sum, if it had not yet been settled, is in these circumstances quite irrelevant.
I accept, without further examination, that the final determination of the dispute might be affected in a particular case by circumstances occurring after the adjudicators decision, and that in such a case any payment ordered by the adjudicator might be shown now to have been more than was, in the light of subsequent events, justified.
A claim for an adjustment could then exist, but it would exist on the basis of those subsequent events.
As I have already indicated, the justification for an adjudicators decision cannot however be undermined by pointing out that, if payment of a sum which was due when ordered had not in fact been ordered and made, it would have become too late by virtue of limitation to pursue a separate claim for such sum by whatever date the proceedings for final determination were begun.
If the adjudicators order was justified on the basis of the underlying dispute, the payment made pursuant to it was due: the payment met obligations which the payer had.
It meant that the payee had no claim to any further payment, while retaining the right to ask the court finally to determine that this was the case.
One further point requires stating.
In finally determining the dispute between Aspect and Higgins, for the purpose of deciding whether Higgins should repay all or any part of the 658,017 received, the court must be able to look at the whole dispute.
Higgins will not be confined to the points which the adjudicator in his or her reasons decided in its favour.
It will be able to rely on all aspects of its claim for 822,482 plus interest.
That follows from the fact that the adjudicators actual reasoning has no legal or evidential weight.
All that matters is that a payment was ordered and made, the justification for which can and must now be determined finally by the court.
Similarly, if Aspects answer to Higginss claim to the 490,627 plus interest ordered to be paid had been not a pure denial of any entitlement, but a true defence based on set off which the adjudicator had rejected, Aspect could now ask the court to re consider and determine the justification for that defence on its merits.
Higginss alternative case
Higgins also submitted that, if, as I conclude, Aspect had six years from the making of payment under the adjudication in which to commence proceedings for repayment, asking the court for this purpose to determine the original dispute, the corollary ought to be that Higgins also has a fresh six year period from the making of such payment in which to bring proceedings for any balance which the adjudicator refused to award.
But there is no basis upon which to recognise a payee as acquiring by virtue of the receipt of a payment a fresh right to claim any further balance allegedly due.
Higgins argued that the adjudicators refusal of the balance might be regarded as an allowance, analogous to a payment.
Even if, contrary to the fact, the balance had been disallowed because of some set off which Aspect had asserted, I would not accept this argument.
Higgins would have had a claim to the balance which it could and should have pursued within six years of the cause of action for such balance first arising on performance of the contract or the commission of any tort by Aspect.
Conclusion
It follows that, in my opinion, the Court of Appeal was correct in its disposal of the present appeal.
A differently constituted Court of Appeal in Walker Construction (UK) Ltd v Quayside Homes Ltd [2014] EWCA Civ 93, [2014] 1 CLC 121 indicated, obiter, that it would follow the decision of Akenhead J in the present case, without having had drawn to its attention the present Court of Appeals decision, given during the interlude between submissions and judgment in Walker.
It follows from the present judgment that the obiter observations in Walker were wrong and must be over ruled, and that the present appeal should be dismissed.
| Aspect Contracts (Asbestos) Limited (Aspect) contracted with Higgins Construction Plc (Higgins) to survey and report on a block of maisonettes which Higgins was considering redeveloping.
Aspects report was dated 27 April 2004.
During the redevelopment in 2005, Higgins discovered asbestos not identified in Aspects report and a dispute arose between the parties [1 2].
The contract contained an implied term (under sections 108 and 114 of the Housing Grants, Construction and Regeneration Act 1996, read with The Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998 No 649)) enabling disputes to be referred to adjudication [1].
Higgins referred the dispute to adjudication and claimed 822,482 plus interest for breach of Aspects contractual and/or tortious duties to exercise reasonable skill and care in carrying out the survey.
On 20 July 2009, the adjudicator found that Aspect had been in breach of such duties and awarded Higgins 490,627 plus interest.
Aspect duly paid Higgins 658,017 on 6 August 2009 [3].
It was also an implied term of the contract, under sections 108(3) of the 1996 Act and paragraph 23(2) of the 1998 Regulations, that the decision of the adjudicator is binding until the dispute is finally determined by legal proceedings, by arbitration or by agreement.
The parties did not agree to treat the adjudicators decision as final.
Higgins did not commence any proceedings to recover the 331,855 balance of its claims.
The limitation period for any such claim by Higgins expired in contract on or about 27 April 2010, and in tort by early 2011 [4].
On 3 April 2012 Aspect issued proceedings to recover the sum it had paid to Higgins, claiming that no payment had been due to Higgins on the merits of the original dispute.
Higgins then sought to counterclaim the 331,855 balance of its original claims.
Aspect responded that any such counterclaim became time barred after six years in 2010 or latest 2011.
The High Court (Akenhead J) rejected Aspects claim on the basis that there was no implied term for repayment and no entitlement to restitution after the expiry in 2010 or 2011 of a six year limitation period during which Aspect could have claimed a declaration of non liability with consequential relief.
The Court of Appeal allowed Aspects appeal on the basis that the contract contained an implied term for repayment by Higgins of any sum paid by Aspect which Aspect could show had not been due on the merits, and that this attracted a six year limitation period running from the date of Aspects payment.
The alternative restitutionary basis was not pursued by Aspect in the Court of Appeal.
Both courts held Higgins counterclaim for 331,855 to be time barred.
Permission having been granted to Higgins to appeal to the Supreme Court, the Supreme Court invited submissions on restitution as well as on the implied term.
The Supreme Court unanimously dismisses Higgins appeal in a judgment given by Lord Mance.
The Court concludes that: (1) Adjudication is intended to be a speedy provisional measure, pending final determination.
The decision of an adjudicator is binding from the time it is given, but lasts only until the dispute is finally determined by one of the ways identified in paragraph 23(2) of 1998 the Regulations or section 108 of the 1996 Act [14 15]. (2) Higgins argument that Aspects only claim was for declaratory relief and consequential orders and that such relief is time barred in the same way as Higgins own counterclaim is misconceived.
Consequential orders cannot be made for the repayment of money to which there is no independent basis for claiming [19 20]. (3) Aspect has an independent basis for having the original dispute finally determined, and for repayment, arising on an implied contractual or restitutionary basis.
That right arises upon and from Aspects payment [16 17].
It was an implied contractual term that Aspect, having made payment as ordered by the adjudicator, would have a directly enforceable right to recover such payment if, on a final determination on the merits of the original dispute, those sums were shown not to have been due to Higgins [23].
Repayment can also be claimed by way of restitution, it being retrospectively established by final determination that the sums paid pursuant to the adjudication amounted to an overpayment [24]. (4) The limitation periods for Aspects claims in contract and restitution are six years from the date of payment [21 22] and [25].
Aspect can require repayment by reference to a determination of the parties original rights and liabilities as they stood when they were adjudicated upon. (5) Higgins on the other hand is time barred from pursuing its counterclaim for the balance of its original claim.
This is the consequence of Higgins own decision not to commence legal proceedings to have the dispute finally determined within the limitation periods applicable to its claims [26 29 and 33]. (6) The Court of Appeals obiter observations in Walker Construction Ltd v Quayside Homes Ltd [2014] EWCA Civ 93, approving Akenhead Js decision in the present case, were wrong [34].
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