High Court decision underlines that the English court may refuse to enforce a foreign judgment even if the relevant foreign rules on jurisdiction and service were complied with

The High Court has set aside an order registering a Canadian court judgment for enforcement under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (the 1933 Act) on the basis that: the necessary jurisdictional criteria were not met; the defendant did not have notice of the Canadian proceedings; and the claimant breached his duty of full and frank disclosure when applying to register the judgment: Siddik Mohammad v Mohammad Hilal Salim Bin Tarraf [2025] EWHC 776 (KB).

There is little value in a judgment that cannot be enforced. This case highlights the importance of thoroughly researching the process that is likely to apply to the enforcement of a foreign judgment at an early stage and ensuring that any requirements are met. For example, enforcement may be refused on jurisdictional grounds even if (as in this case) the foreign court was entitled to exercise jurisdiction under its own conflict of laws rules – and indeed even if (though it was not the case here) the English court would have been entitled to exercise jurisdiction in similar circumstances. Enforcement may also be refused if the defendant did not receive actual notice of the proceedings, even if there was valid service under the foreign court's rules.

The requirements for enforcing Canadian judgments are contained in the 1933 Act, which is one of a number of routes for enforcing foreign judgments in England. The rules attaching to each route differ and their application can be complex.

A further route to enforcement will become available in respect of proceedings commenced on or after 1 July 2025, when the Hague Judgments Convention 2019 (Hague 2019) comes into force for the UK. Where Hague 2019 applies, an English court judgment will be enforceable (subject to limited exceptions and the application of various jurisdictional filters) in all other contracting states and vice versa. The contracting states currently comprise all EU Member States (except Denmark), Ukraine and Uruguay. The list is expected to grow over time.

For more information on Hague 2019, see our previous blog post, and for a high level overview of the different regimes for the enforcement of foreign judgments, see our decision tree: Will an English court judgment be enforceable abroad?

Background

The claimant, Mr Mohammad, and the first defendant, Mr bin Tarraf, were partners in a business operated through the second defendant, a company incorporated in the UAE. Mr Mohammad alleged that the defendants had converted his interests in the business and made various allegations of intimidation and threats.

Mr Mohammad sought to recover damages for his alleged losses. After proceedings brought in New York were dismissed for lack of jurisdiction, he issued proceedings in Ontario, Canada, where he had been granted refugee status. Although the claim had no connection to Canada, the court took jurisdiction under the doctrine of forum of necessity. This doctrine, which is not recognised in England, allows a court to hear a case over which it would not otherwise have jurisdiction on the basis that there is no other forum in which a claimant can receive a fair trial.

Mr Mohammad was awarded default judgment by the Ontario court and successfully applied to have the judgment registered in the English High Court in accordance with CPR 74 and the 1933 Act.

Mr bin Tarraf applied to have the registration order set aside, submitting that:

• the Ontario court did not have jurisdiction in the circumstances of the case;
• he had not received notice of the Ontario proceedings; and
• Mr Mohammad had failed to comply with his duty of full and frank disclosure when applying to register the default judgment.

Mr Mohammad argued that setting aside the registration order would be contrary to his right to a fair trial under the European Convention on Human Rights (ECHR), and that the 1933 Act should be interpreted compatibly with those rights or else be declared incompatible.

Section 4(1)(a) of the 1933 Act requires registration of a judgment to be set aside in certain circumstances, including where the court is satisfied that (1) the original court had no jurisdiction in the circumstances of the case, or (2) the judgment debtor did not receive notice of the proceedings in sufficient time to enable them to defend the proceedings and did not appear (notwithstanding that process may have been served in accordance with the law of the original court).

Section 4(2)(a) sets out the circumstances in which the court that gave a judgment in personam will be deemed to have had jurisdiction, namely: where the judgment debtor was a plaintiff or counterclaimant, or submitted to the jurisdiction by voluntarily appearing, or agreed to submit before the proceedings commenced, or was resident in (or, if a company, had its principal place of business in) the relevant country, or had an office or place of business there (if the proceedings were in respect of a transaction effected through that office or place).

Section 4(2)(c) states that, in the case of a judgment given in an action other than (for current purposes) an in personam action, the original court shall be deemed to have had jurisdiction if the jurisdiction of the original court is recognised by the law of the registering court.   

Decision

The High Court (Constable J) set aside the order registering the default judgment.

Jurisdiction

The court held that the criteria in section 4(2)(a) of the 1933 Act were exclusive (applying Cooperative Sidmetal v Titan International Ltd [1966] 1 QB 828) and there was no basis for construing the provision less restrictively so as to permit the registration of foreign judgments founded on some other jurisdictional basis. On the facts, none of the section 4(2)(a) criteria were met.

Section 4(2)(c) of the 1933 Act was irrelevant to the analysis because the action was clearly in personam. In any event, the basis of jurisdiction of the original court, being the forum of necessity, was not recognised by the English courts.

The default judgment therefore could not be registered under the 1933 Act.

Notice of proceedings   

Section 4(1)(a) of the 1933 Act required that a defendant had received actual notice of proceedings, regardless of whether there had been lawful service. The court accepted Mr bin Tarraf's evidence that he did not know about the Ontario proceedings until six months after default judgment had been entered.

The question of whether Mr bin Tarraf had been validly served with the Ontario proceedings was not directly relevant to the issue of notice. However, the court accepted that it might be indirectly relevant because, where service had been effected properly, it might be more difficult for a party to establish that they did not have notice.

The court was not bound by the determination of the judge in the Ontario proceedings that service was valid. This was a matter of fact for the English court on the evidence before it for the purposes of determining the proper application of the 1933 Act. Nor was there any criticism of the Ontario court's decision, which was made on a without notice application on the basis of different evidence.

Having considered expert evidence as to Ontario law on service and the validity of service in Dubai, the court concluded that Mr Tarraf had not been validly served in accordance with the laws of Ontario. Therefore, regardless of whether the 1933 Act should be read to equate "notice" with lawful service, again this meant that the registration order must be set aside.

Duty of full and frank disclosure

As the application to register the default judgment was made without notice, Mr Mohammad had a duty to make full and frank disclosure of all matters, adverse or otherwise, of relevance to the application.

In the case of an application under the 1933 Act, CPR 74.4(4) required written evidence confirming that the registration could not be set aside under s.4. That included providing full information as to the satisfaction of the jurisdictional criteria and whether the defendant had received notice of the proceedings. There were a number of shortcomings in the evidence provided by Mr Mohammad, including:

• failure to draw attention to the fact that the Ontario court had not taken jurisdiction on any of the grounds stated in section 4(2)(a) of the 1933 Act, and a misstatement of the legal position on jurisdiction;
• failure to attach the Ontario court's reasons for entering default judgment, which might have revealed the limited nature of its assumption of jurisdiction; and
• failure to draw attention to issues with service on Mr bin Tarraf.

The court concluded that there had been a substantial failure to make full and frank disclosure in relation to both jurisdiction and service. Such a breach generally required that any order granted without such disclosure be set aside, so as to secure the integrity of the court's process, protect the interests of those affected by the order and deter others from similar conduct. In the present case, if the registering court had been properly apprised of the facts, it was unlikely that it would have registered the order. On this basis, it was even clearer that the registration order should be set aside.

Incompatibility with the ECHR

Mr Mohammad argued that denying him the opportunity to enforce his judgment in England by reason of the proper construction of the 1933 Act would mean that he would have to try his case in the UAE, where (as the court accepted for the purposes of the application) he could not receive a fair trial. It was therefore incompatible with his right to a fair trial under Article 6 of the ECHR.

The court accepted that it was arguable that rights under the 1933 Act were part of the procedural machinery of the state by which substantive rights were protected, and therefore Article 6 was engaged. However, it was reasonably clear that a failure to recognise the judgment of a foreign nation whose courts had assumed jurisdiction on the basis of necessity, when the UK (along with many other nations) did not recognise the concept, was insufficient of itself to amount to a breach of Article 6.

The court noted that the jurisdictional test for enforcement purposes in the 1933 Act was narrower than the circumstances in which an English court could itself accept jurisdiction over a claim, and the way in which the courts assume jurisdiction over international disputes had moved on since 1933. The court noted that, on the one hand, the greater restrictions on the assumption of jurisdiction imposed by the 1933 Act might be a disproportionate restriction on access. On the other hand, they provided important certainty to the process and may therefore be seen as proportionate.

It was significant that, in the present case, the defendant had not been given notice of the Ontario proceedings. This was a mandatory basis for setting aside a registration order under the 1933 Act, and clearly compatible with Article 6. Regardless of arguments as to jurisdiction, it could not be a breach of Article 6 for the court to set aside a default judgment in circumstances where a defendant had not been given notice in sufficient time to take part in the underlying proceedings.

In these circumstances, it would be unnecessary and wrong to rule on the potential incompatibility of the 1933 Act with the ECHR.