The parties have been litigating with each other since 2009 in various jurisdictions around the world, about matters which occurred in the United Kingdom, Kazakhstan and surrounding areas, where the plaintiff company, Michael Wilson & Partners Ltd, conducted business and the defendant, Mr Emmott, had performed work: Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315 at [8]-[16]. Those jurisdictions include England, the British Virgin Islands, New Zealand, this State, the ACT and Australia's High Court. The parties were also involved in arbitral proceedings in England.
Mr Emmott was for some time a director and shareholder of the Company, a relationship which appears to have come to an end in 2006. Mr Wilson remains a director and shareholder and appears to be the Company's controlling mind.
Proceedings in the Equity Division of this Court, the British Virgin Islands and the High Court of Justice, Business and Property of England and Wales remain on foot and the Company has also foreshadowed the pursuit of bankruptcy proceedings in Australia against Mr Emmott. Such proceedings are already on foot in England, although they were stayed by order of the High Court of England and Wales on 25 April 2024.
Both parties have had various costs orders made in their favour in the foreign proceedings, as well as those in which they have engaged in Australia, which have not been paid.
By summons filed in August 2023, the Company sought orders under the Foreign Judgments Act 1991 (Cth) and under the Trans-Tasman Proceedings Act 2010 (Cth) in this Court, for the registration of a number of foreign judgments and orders that it and others had obtained against Mr Emmott. Mr Emmott was not given prior notice of the application, which was heard by the Registrar in February 2024. By orders made on 2 February 2024, some of those judgments were registered and others were refused registration, for reasons which the Registrar then gave, including that the Company was not a party to the proceedings in which some of the judgments it sought to register were made. The judgments of the New Zealand High Court which the Company sought to enforce were among those refused registration for the reason that the Registrar does not hold the requisite delegation to register judgments under the Trans-Tasman Proceedings Act.
Not disclosed to the Registrar prior to the making of his decision was that the Company had already taken steps to enforce disputed judgments and orders in the English bankruptcy proceedings. Nor that Mr Emmott has sought, by application filed in the High Court of England and Wales on 22 July 2022, set off orders in relation to various of those judgments, given costs orders which have been made in his favour. After the Registrar's orders were made, Mr Emmott applied in England to amend his set off application to include an order staying all costs orders in that jurisdiction pending determination of his set off application. The English bankruptcy proceedings were subsequently adjourned on 25 April 2024, pending resolution of the set off application.
The English set off application was due to be heard in July 2024, but was adjourned until February 2025 because of problems with Mr Wilson's appearance on the day fixed for the hearing. There in issue is costs orders made in favour of the Company, which it claims total almost 6 million pounds, as well as the costs orders made in favour of Mr Emmott, which he claims total over 2.4 million pounds.
For its part, the Company also pursues a debarring application in respect of Mr Emmott's claimed costs, which is also to be heard at the February 2025 hearing.
Also yet undecided in England is the enforcement of the arbitral award made in favour of Mr Emmott with the sum awarded now claimed to exceed 5 million pounds. There, the question of the set off of costs orders made in favour of the Company also arises to be determined. This was also not disclosed on the application before the Registrar.
This judgment deals with a February 2024 motion whereby Mr Emmott sought to have the registration of the foreign judgments pursuant to the Registrar's 2 February 2024 orders set aside and these proceedings stayed. As well as an April 2024 motion (as amended in May 2024) by which the Company sought a review of the Registrar's orders and leave to amend its pleadings, in order to have other foreign judgments and orders (including the New Zealand judgments) registered, as well as effectively joining Mr Wilson as a party to the proceedings.
The Company also relies on Mr Emmott's failure to pay the costs of a High Court special leave application which was refused, where costs awarded against Mr Emmott have been assessed. Mr Emmott also, however, had a costs order made in his favour in respect of the Company's failed special leave application. Those costs have not yet been assessed, but will no doubt be relevant in the foreshadowed Australian bankruptcy proceedings.
Mr Emmott anticipates that his assessed costs on the Company's special leave application will be somewhat less than those which the Company has assessed in respect of his application, given their respective representation in the High Court. That it is likely that there will be the need to consider a set off in respect of those costs orders must be accepted: Miller v Director of Public Prosecutions [No 2] [2004] NSWCA 249 at [24]-[27].
There, the Court's inherent discretion to order a set off of costs when it is equitable to do so arose to be considered. That being a discretion which may be exercised even if the orders are made in different proceedings. The Court of Appeal then followed long settled English authority, observing at [28] that "[a] common reason for making an order for set-off is that because of insolvency, an unfair result will be reached unless an order for set-off is made".
This forms part of what will undoubtedly arise to be considered in respect of Mr Emmott's English set off application and the proceedings concerning the arbitral award, as well as in any bankruptcy proceedings which the Company pursues in Australia.
In Miller, Beazley JA, as her Honour then was, explained the operation of the Court's broad discretion to order a set off of costs, which entitles it to have regard to a variety of factors, including the public interest, the efficient administration of justice, and the parties' conduct on a set off application: at [13]-[17]. Her Honour also observed that, there being a legal right to set off, it was sensible and efficient for parties to agree about costs and to have them taxed if they cannot agree, in order that the party in debit can be required to pay the difference between the two sets of costs to the other. Failing this, enforcement proceedings will have to be pursued in order to resolve what remains in issue.
This is the process already being pursued in England.
Given what the parties have advanced, despite this, it appears that they are incapable of sensible agreement about costs orders made in Australia. That has had the result that despite what is on foot elsewhere in respect of the Company's English enforcement proceedings and Mr Emmott's set off application, the Company intends to pursue Mr Emmott's bankruptcy in Australia, relying on the disputed foreign judgments, despite the impending hearing in England.
Since the judgments were registered in February, the Company has served an Australian bankruptcy notice on Mr Emmott. It has also notified him and indicated to the Court that it intends to pursue those bankruptcy proceedings here, irrespective of the English proceedings.
Were the Company to proceed as it intends in Australia, it appears inevitable that Mr Emmott, who will also be entitled to rely on unpaid costs orders made in his favour in other jurisdictions, as well as the orders which resulted from the arbitral proceedings, will resist such enforcement. As explained in Porter, in the matter of Slater (No 3) [2021] FCA 688 at [152], in bankruptcy proceedings the Court also having power to set off a costs order against a judgment sum.
That being so, it follows that in the foreshadowed bankruptcy proceedings issues of the same kind as those which have to be determined in the proceedings presently listed for hearing in the High Court of England and Wales in February 2025, will arise. Although once they are decided in England, it appears that the outcome will bind them.
It should be observed that the prospect of these parties litigating the same matters in both England and Australia, which seems entirely likely, does not accord with the public interest. That is reinforced by the factual complexity of the parties' litigious history, which the evidence and submissions led in these proceedings has shed some light on. Still, the Company is intent on pursuing the course it has embarked on here, rather than awaiting the outcome of the English set off application listed for hearing in February.
At the hearing the parties were urged to find a common way forward, but none was found, other than in respect of a small number of judgments which it was agreed should not have been registered.
That was despite there being no issue that the likely outcome of the February 2025 hearing of the set off application will be a "balancing costs order" being made by the High Court of England and Wales, of the kind discussed by Markovic J in Porter, referring to Miller, at [151]. Even if that Court's conclusions are later disturbed by an appeal, some type of balancing order will result.
In Porter Mr Wilson argued, unsuccessfully, that there was no right of set off, Markovic J concluding that the Court did have power to order a set off of costs when it is equitable to do so, as an incidence of that Court's inherent jurisdiction over its suitors. That being consistent with its broader discretion with regard to costs under s 43 of the Federal Court of Australia Act 1976 (Cth). That power includes the power to set off a costs order against a judgment sum: Huang v Deputy Commissioner of Taxation [2020] FCAFC 160 at [15].
In the case of the Company and Mr Emmott, such an order would resolve the question of whether the unpaid arbitral award and costs orders made in favour of Mr Emmott, satisfied costs orders made in favour of the Company and what net amount, if any, either owed the other.
It follows that in England, once a balancing order is made in respect of the disputed judgments which are also there in issue, consequential orders will be made. Logically, such orders are likely to set aside earlier orders which arise to be considered in these proceedings. If he is successful, once made, Mr Emmott will be entitled to rely on such orders to set aside the registration of the disputed judgments in this Court and to resist their enforcement here. If he is not, the parties ought then to be capable of resolving much of what remains in issue in these proceedings.
The real question which now has to be resolved by this Court is thus whether the current situation is such that the registration of the disputed judgments should be set aside and/or the proceedings stayed.
It was in February 2024, after service of the Registrar's challenged orders, that Mr Emmott applied by motion to have them stayed or set aside. That motion was supported by an affidavit he had sworn.
It was in April that the Company filed its motion, out of time, seeking a review of the Registrar's orders and leave to amend its August 2023 summons, including to join Mr Wilson as second plaintiff. In May it filed a further amended motion in its own right and as the assignee of a number of individuals by which it also sought, in addition to that which it sought in its original motion, a review of orders made on 3 April 2024 and 9 May 2024 and leave to file a further amended summons, seeking the registration of a number of additional judgments, rulings, orders, default and final costs certificates. That motion was supported by an affidavit sworn by Mr Wilson.
By that time the English bankruptcy proceedings had been adjourned, pending the July hearing of the set off application. That set off hearing had to be deferred to February 2025 to accommodate Mr Wilson's problems.
Despite this, shortly before the hearing of these motions the Company filed a second further amended notice of motion. It there sought leave to further amend its summons, seeking the registration of other foreign judgments which will be relied on in the English set off application.
That this approach accords with the obligations imposed on the parties by s 56 of the Civil Procedure Act 2005 (NSW), to assist the Court in facilitating the just, quick and cheap resolution of the real issues in the proceedings, is not apparent.
[2]
The Registrar's orders
The Registrar made two sets of orders on 2 February 2024. The first lists the foreign judgments and orders which were registered, reasons for which were not given.
It is not now in issue that some of them were wrongly registered and that their registration must thus be set aside, as Mr Emmott seeks. That the Registrar fell into error reflects the difficulty of the task presented, given the way in which the Company's application was made.
I am satisfied that the approach adopted also had the result that the Company did not make necessary disclosure of all of the information relevant to its application, as the Uniform Civil Procedure Rules 2005 (NSW) required, to which I will return.
The Registrar's second order listed the judgments whose registration had been refused, for which reasons were given. They included that the Company had sought to register orders when the application was made out of time; where the Company had no right to seek registration, because the order had not been made in its favour (having been made in favour of Mr Wilson in his personal capacity); or the document it sought to have registered was not capable of registration under the Act, for reasons including that they were not final or conclusive. In one case (the registration of New Zealand judgments pursuant to the Trans-Tasman Proceedings Act) registration was refused because the Registrar did not have the required delegation.
Mr Emmott's case is, amongst other things, that this Court was not the proper court for the registration of the judgments and orders, and that the Registrar failed to identify that other of the judgments which were registered ought not to have been. Further, that the Company had obtained the challenged registration, having failed to comply with its obligations under the Rules by failing to disclose Mr Emmott's English set off application to the Registrar.
[3]
Issues
What was in issue thus included whether:
1. this Court is the appropriate Court in which to register the judgments;
2. the registration of any further judgments should be entertained before the English proceedings are determined;
3. Mr Wilson should be joined as a party to these proceedings;
4. the extensions of time sought to file the Company's notice of motion should be granted;
5. in obtaining the registration orders, the Company made the disclosures required by the Rules and, if not, whether the failure to do so involved any abuse of process;
6. the Registrar's orders made on 2 February 2024 should be set aside; and
7. the proceedings should be stayed pending determination of the set off application in the High Court of England and Wales.
The parties also disputed the proper construction of aspects of the Foreign Judgments Act, as well as how the Court should manage the problems which have arisen for consideration. Although it was finally accepted that the Registrar had erred in registering some of the judgments.
[4]
Conclusions
For reasons which follow, I have concluded that:
this Court is the appropriate Court in which to pursue the registration of the disputed foreign judgments;
the proceedings should be stayed pending determination of the set off application which is listed for hearing in the High Court of England and Wales;
Mr Wilson should not now be joined as a party to these proceedings, his joinder not being relevant to the resolution of the real issues now lying between the parties; and
other issues (including whether an extension of time should be granted and whether further judgments should be registered) should not, at this stage, be determined.
That is because the resolution of the English proceedings in the near future will impact the rights of both the Company and Mr Emmott and result in orders affecting some, at least, of the judgments and orders which remain in dispute.
I am satisfied that even if the disputed judgments were capable of being registered in February 2024, the adjournment of the English bankruptcy proceedings until the resolution of the set off application, currently prevents their enforcement in England, until further order. Justice does not permit some different practical result in Australia.
It rather requires that the enforcement of the challenged judgments in Australia should likewise be prevented, until the English proceedings have been determined. That can best be achieved by these proceedings being stayed until final orders in respect of the set off application have been made in England.
Given the parties' history, there is of course a real prospect that the final outcome of what is being litigated in England will not be known until the outcome of an appeal.
Despite this, once the outcome of the English litigation is known, the Company will be in a position to know what judgments and orders it is entitled to pursue further in Australia. The parties should then confer about an appropriate way forward, in accordance with the obligations imposed on them by s56 of the Civil Procedure Act.
At this stage I am satisfied that this course is likely to help best achieve the just, quick and cheap resolution of the real issues lying between these parties, bearing in mind the Court resources that litigation here will otherwise utilise, potentially only to be overtaken by the outcome of the English litigation.
[5]
The requirements of the regulatory regime
The Foreign Judgments Act permits the registration of certain foreign judgments and orders, including those made by courts of the United Kingdom and the British Virgin Islands, in an appropriate Australian court. That this Court was the appropriate court for registration of the foreign judgments and orders was not accepted by Mr Emmott.
The Rules also deal with the circumstances in which judgments may be registered and set aside: rr 53.2, 53.3, 53.5-53.7. That these were complied with by the Company was disputed.
Applications for the registration of a foreign judgment may be made by a judgment creditor within 6 years of such a judgment or a judgment of an appeal therefrom: s 6(1) Foreign Judgments Act. The Court has a discretion to extend that time: s 6(5). Registration is to follow proof of the matters prescribed by the applicable Rules of Court: s 6(3).
It is Pt 53 of the Rules which permits the judgment creditor to proceed without service of the summons by which the application for enforcement is made unless the Court orders otherwise: r 53.2(3).
The evidence that a judgment creditor must put on when making a registration application includes evidence that it is entitled to enforce the judgment in the country of the original court and the extent to which it is unsatisfied: r 53.3. Evidence about such matters will be relevant to the Court's consideration of whether the judgment creditor ought to be permitted to proceed ex parte and so must be provided.
Evidence which casts doubt on either an entitlement to enforce, or that a judgment has not been satisfied will, no doubt, as a matter of justice, lead the Court to require service of a registration application, before it is heard and determined. "Enforcement" is defined in s 3 of the Act to mean enforcement by execution, where there is an amount of money payable under the judgment.
In this case the Company's original summons (filed in August 2023) listed the judgments and orders sought to be registered, together in some cases with a short explanation of the English and British Virgin Island proceedings in which they were made. Mr Wilson's supporting affidavit deposed to his Australian citizenship and admission as a solicitor in this State, Victoria, the High Court of Australia, the Supreme Court of England and Wales, as well as being an "AIFC" in Kazakhstan.
The affidavit provided information about the Company's registration, Mr Emmott's claimed circumstances, including his domicile in Australia for tax purposes and assets he holds here, together with a further explanation of the judgments sought to be registered, which repeated much of the summons. Mr Wilson claimed that the entire balance of the judgments remained outstanding, unpaid and payable. There was also a table by which claimed interest as well as unpaid principle, was calculated.
But this affidavit made no reference to the unpaid 2015 arbitral award, or costs orders and judgments payable by the Company to Mr Emmott, the dispute about his right to any set off, or that it had become the subject of his set off application.
Given what the parties agreed about some of the challenged judgments it is apparent that the affidavit was in parts inaccurate.
I am satisfied that when it made its registration application the Company was aware of, but did not disclose to the Court, the costs judgments which were the subject of Mr Emmott's set off application, notwithstanding that it was aware that he relied on them to argue that they had satisfied judgments and orders which the Company sought to have registered in this State.
It must be accepted that compliance with r 53.3 required the Company to disclose what it knew was then in issue in the English proceedings about its right to enforce the costs judgments and orders it sought to have registered. Given that set off application ultimately led to the adjournment of its attempt to enforce those orders in the English bankruptcy proceedings (albeit subsequently to the making of the Registrar's orders), its obligation to disclose the set off application to this Court on its registration application cannot be doubted.
What was in issue between the parties about the right to enforce had been crystallised, beyond question, by the July 2022 set off application. Enforcement of the disputed judgments and orders in this Court should not have been pursued without disclosure of the circumstances in which the Company was then unable to enforce them in England.
It must also be accepted that had the Company disclosed on its registration application, as it ought to have, what it knew about its disputed right to enforce the costs orders and judgments it sought to have registered, the hearing of the Company's application would not have proceeded ex parte.
That is because registration is not permitted if, at the date of the application, a judgment has been wholly satisfied, or could not have been enforced: s 6(6). That this was the position in relation to some, at least, of the judgments and orders the Company sought to have registered, will be determined on the set off application now listed for hearing in February 2025.
This is relevant to Mr Emmott's application to stay these proceedings, pursuant to the Court's general power to do so contained in s 67 of the Civil Procedure Act, and his application in the alternative to set aside the registration of the disputed judgments, which is regulated by s 7 of the Foreign Judgments Act.
Registration must be set aside if the Court is satisfied of specified matters. They include, relevantly, that the judgment is not, or has ceased to be, a judgment to which this Part applies: s 7(2)(a)(i). The Part applies to "enforceable money judgments" given by specified courts that are final and conclusive, even when an appeal is pending or the judgment is still subject to appeal, as well as certain non-money judgments: s 5.
"Appeal" is widely defined in s 3 to include "a proceeding by way of discharging or setting aside a judgment or an application for a new trial or a stay of execution". The set off application is a proceeding, I consider, which falls within this definition, having the effect, if successful, that the underlying orders or judgments will be set aside and a new judgment for the balance owing by the Company or Mr Emmott to the other be entered into. The set off application, of itself, thus did not preclude registration, but permits a stay: s 8 Foreign Judgments Act.
"Enforceable money judgments" are defined in s 3 to mean a money judgment under which an amount is payable, other than specified taxes, charges, fines and penalties. It follows that if a judgment has been satisfied, whether by payment or set off, it will no longer be one under which an amount is payable.
Registration must also be set aside if the judgment was registered for an amount greater than the amount payable under it at the date of registration: s 7(2)(ii).
If a judgment has been reversed on appeal or otherwise set aside in the courts of the country of the original court, it must also be set aside: s 7(2)(vii).
Registration must also be set aside once a judgment has been discharged or wholly satisfied: s 7(2)(ix) and (x). There is a dispute about the latter which will be resolved by the determination of the set off application in England, which may then result in discharge orders. But that has not yet occurred.
What is there sought is a judgment which replaces the challenged orders with one which resolves the parties' dispute about which of them owes the other any amount in respect of unpaid costs and the arbitral award. The result of making such an order will necessarily result in the orders it replaces being set aside. The parties will certainly not be left bound by both the original order and any consolidating order made in the set off proceedings.
Registration may also be set aside if enforcement of the judgment would be contrary to public policy: s 7(2)(xi).
Enforcement of a judgment registered under that Act may be stayed pending determination of an appeal: s 8.
The principles governing applications for a stay pending the hearing of an appeal are well settled and it was not in issue that they apply to the stay sought in these proceedings, pending the determination of the issues remaining to be resolved in the appeal in England in relation to set off.
The determination of the issues raised by the motions must be approached in light of the requirements of s 56 of the Civil Procedure Act, which requires the parties to assist the Court to further the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings. Surrounding provisions, to which I will return, must also be considered in resolving those issues.
[6]
Is this Court the appropriate court to register the judgments?
The appropriate court for the registration of a foreign judgment under the Foreign Judgments Act is, if the judgment is a money judgment, the Supreme Court of a State or Territory: s 6(2). I am satisfied that this Court is an appropriate Court in which to register the disputed judgments, the parties having already litigated here as they have and still continuing to do so: s 6(2).
While the Company relied on what was decided in Yee v O'Dea [2015] NSWSC 1752, which Mr Emmott sought to distinguish, I consider what there arose for consideration sheds little light on what is here in issue.
Costs orders have already been made in the Equity and Court of Appeal proceedings, as well as in the High Court proceedings, and further costs orders are likely to be made in the Equity proceedings. It appears that steps to enforce those orders may now be taken by pursuit of bankruptcy proceedings in the Federal Court. What the parties owe each other in respect of other costs dealt with in foreign judgments, as well as in respect of the arbitral award, may all be relevant to Australian enforcement proceedings, given the general right to set off, which may thus also arise for consideration.
It follows that the registration of the judgments in this Court will permit reliance upon them in any Australian enforcement or bankruptcy proceedings. That makes this an appropriate court for their registration.
[7]
The consequences of the failure to disclose the ongoing English set off proceedings
I am satisfied that given the requirements of the Rules, the Company ought to have disclosed the position in relation to the ongoing proceedings in the English courts which are considering the parties' rights of set off, including in relation to the disputed judgments.
On the Company's approach, that only became relevant in the event that it sought to enforce the judgments in Australia, after their registration.
I do not accept this, given that s 56 imposes a duty on it to assist the Court to give effect to the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings and the provisions of the Foreign Judgments Act and the Rules which I have earlier discussed.
One possible outcome of the set off application appears to be an order which subsumes all of the disputed judgments and orders into one judgment which specifies the amount, if any, Mr Emmott is liable to pay the Company in respect of all of these costs judgments and orders. That is no doubt part of the reason for the adjournment of the English bankruptcy proceedings.
It follows that knowing that its enforcement of the disputed judgments in England could not proceed until after resolution of the set off dispute, the Company ought to have disclosed this to the Registrar. Section 6(6)(b) of the Foreign Judgments Act precluded their registration if they could not, in February 2024, be enforced in England. Mr Emmott's set off application had been filed in the High Court of England and Wales a year and a half earlier, on 22 July 2022.
It is in those circumstances that the question of whether the registration of the judgments should be set aside or stayed must be resolved.
[8]
Should the proceedings be stayed?
The essential question to be resolved is thus whether these proceedings should be stayed, pending the resolution of the English set off proceedings. This depends on what justice requires in all of the circumstances, s 58(1) of the Civil Procedure Act requiring the Court to act in accordance with the dictates of justice, having regard to the matters specified in s 58(2)(b):
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56(3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.
Section 56(3) imposes a duty on the parties to assist the Court to further the overriding purpose specified in s56(1), facilitating the just, quick and cheap resolution of the real issues in the proceedings.
That it would accord with that overriding purpose to permit the Company to pursue, in Australian courts, arguments which are set to be heard and determined in the High Court of England in February 2025 in respect of the challenged judgments, may not be accepted.
Not only would that put the parties to unnecessary cost, it would risk contradictory judgments being given by English and Australian courts about the same matters, at unnecessary cost and inconvenience to the Australian community. The parties will be bound by the resolution of their dispute in the English courts in which they have repeatedly litigated with each other. It would be contrary to public policy to permit the same matters to be litigated in Australian courts, before the outcome of the English set off application is known.
I am thus satisfied that justice requires that these proceedings be stayed, pending the determination of the proceedings in the High Court of England and Wales, given that the hearing of the English enforcement proceedings has been deferred, pending the determination of what is in issue in the High Court of England and Wales in relation to set off.
That reflects the impact which its resolution may have, not only in the English enforcement proceedings, but also on what remains in issue in relation to the registration of the challenged judgments.
It is also pertinent that there is no issue that as the result of arbitral proceedings between the parties, Mr Emmott obtained money orders in his favour of in excess of 5 million pounds and that costs orders have also been made in his favour, as well as in favour of the Company. There is also a dispute about the impact of the assignment of a debt which Mr Emmott owed a litigation funder to the Company, which it claims that it is entitled to set off against the arbitral award. That dispute is not, apparently, yet listed for hearing in any English Court.
What is listed for hearing in February 2025 is Mr Emmott's claim about the set off of unpaid judgment debts in respect of costs which he owes the Company, against those which it owes him. There is also a dispute about the respective amounts of those costs, as well as in relation to the arbitral award.
On the Company's case it is owed costs in excess of 5,911,934 pounds, but Mr Emmott claims it is owed some one tenth of this amount. What the correct figure is need not be determined in these proceedings, that being the subject of the hearing listed in the High Court in February 2025.
There is no issue that what was not disclosed to the Registrar when the Company pursued the registration of the foreign judgments was that it had already taken steps to enforce them in England. Or that the dispute about the set off of the costs which had been ordered in favour of each of the parties was listed to be heard in the High Court of England and Wales in July 2024 and had resulted in the deferral of the English enforcement proceedings.
The registration of the foreign judgments was obtained ex parte. In those circumstances Mr Emmott contended that the Company had a duty of candour, which ought to have resulted in its disclosure of these matters to the Registrar, relevant as they were to the question of whether the hearing of the registration application should proceed ex parte and whether the foreign judgments should be registered.
This was in issue, the Company contending that such matters only needed to be disclosed in the event that it took steps to enforce the judgments after their registration. I am satisfied that this cannot be accepted, given the requirements of the Rules.
The Rules permit a judgment which was given or made in the absence of a party to be set aside after it is entered: r 36.16(2)(b). Mr Emmott was not given notice of the registration application or its hearing. That is not required by the Foreign Judgments Act or by the Rules, but it is a relevant consideration on an application under the Rules to set aside the registration of a judgment, or a stay.
In all of the circumstances I have discussed, I am satisfied that these proceedings should be stayed, at least until the English set off application has been heard and determined, despite the Company's submissions that Mr Emmott has insufficient prospects of success to permit this conclusion. Given all that I have explained, I cannot accept this submission.
[9]
Should the registration of the judgments be set aside?
I am not persuaded that it is necessary to also resolve the dispute about the registration of the judgments which remain in issue, at this stage.
The parties advanced submissions about various of the judgments and orders registered, they having been tabulated in a schedule which the submissions addressed. Mr Wilson explained why he considered Mr Emmott was still bound to pay what they dealt with.
Mr Emmott disputed that the was bound to pay some 2,839,883.70 pounds of the sums Mr Wilson still pursued. That was for reasons which included that in some cases orders had been made more than six years ago and so could not be registered without an extension of time, which had not been sought or obtained; that he was not a party bound by some judgments; that he had not been ordered to pay all of the costs dealt with in other judgments which had been registered; that some judgments had already been satisfied and were thus no longer capable of enforcement, an issue due to be resolved in the February hearing; that in other cases credit had not been given for amounts which had been paid; that one judgment has been challenged on an appeal which has not yet been heard; that others have been stayed pending hearing of the set off application; and that in other cases no orders requiring Mr Emmott to pay any sums have been made.
Mr Wilson provided a detailed response, which he sought leave to advance, which was opposed. I am inclined to give that leave, given the conclusions I have reached. His written submission revisiting that which Mr Emmott had responded to; further explaining why his position in relation to various of the matters Mr Emmott had raised was still disputed; and arguing that it was relevant that various orders had not been stayed and so remained in force and enforceable, despite the set off application. That depends, of course, on all that is pursued in the bankruptcy proceedings, which have been stayed.
There are thus significant issues lying between the parties about matters not easily resolved, many of them due to be resolved in the English proceedings in February 2025. That being the case I am satisfied that these issues would better await the resolution of those proceedings, that likely to significantly reduce what is really in issue between the parties in these proceedings.
I am satisfied that justice requires that the parties have the opportunity to consider the outcome of the English proceedings, which ought to put them into a position where the disagreement about the registration of the remaining of the challenged judgments, can relatively shortly be agreed. Unless set aside on an appeal the parties will, after all, be bound by the orders made in the English proceedings.
Compliance with the obligations imposed on them by s 56 of the Civil Procedure Act should thus result in an agreement about the further orders which should then be made in these proceedings.
In all those circumstances I am satisfied that the appropriate order now to make is to stay the proceedings, rather than to determine, at this stage, what other judgments and orders, if any, must have their registration set aside.
[10]
Costs
The usual order under the Rules is that costs follow the event. In this case that is an order that the Company bear Mr Emmott's costs.
[11]
Orders
For these reasons the parties should bring in short minutes of the orders necessary to be made to reflect what was agreed in relation to setting aside some of the judgments; the stay of these proceedings until further order, following the hearing and determination of the set off application presently listed for hearing in February 2025; and costs.
If there is any disagreement the parties should approach within 14 days with short written submissions.
[12]
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Decision last updated: 10 October 2024