Desert Sun Loan Corporation v Hill

JurisdictionEngland & Wales
JudgeStuart-Smith,Evans,Roch L JJ.
Judgment Date15 February 1996
CourtCourt of Appeal (Civil Division)
Date15 February 1996

Court of Appeal

Before Lord Justice Stuart-Smith, Lord Justice Evans and Lord Justice Roch

Desert Sun Loan Corporation
and
Hill

Practice - foreign judgment - issue estoppel cannot be relied on

Issue not decided in foreign court

Where a defendant against whom plaintiffs sought to enforce a foreign judgment had unsuccessfully challenged the foreign court's jurisdiction over him but that court had not decided the specific issue now raised, namely whether the defendant had voluntarily appeared before the foreign court, the plaintiffs could not rely on issue estoppel to establish their case.

The Court of Appeal so held in a reserved judgment dismissing, subject to a condition, an appeal by the plaintiffs, Desert Sun Loan Corporation, against leave to defend the action granted by Mr Walter Aylen, QC, sitting as a deputy judge of the Queen's Bench Division, to the defendant, David Walter Hill, of Boden's Ride, Swinley Forest, South Ascot, Berkshire.

Mr Charles Falconer, QC, for the plaintiffs; Mr Christopher Semken for the defendant.

LORD JUSTICE EVANS said that the plaintiff bank obtained judgment in Arizona against a limited partnership for the amount due under a promissory note and against certain of the partners, including the defendant, as guarantors.

US attorneys acting for the partnership accepted service of the proceedings on behalf of the defendant as well as the partnership and the other guarantors. The defendant said that he did not authorise them to do that. He applied to the Arizona court to set aside the judgment but his application failed. The plaintiffs' claim in the present proceedings was to enforce the judgment against the defendant, who was resident here.

The plaintiffs said that the defendant was barred by the Arizona court's ruling from raising the same issue here, and that he had no arguable defence so that they were entitled to summary judgment under Order 14 of the Rules of the Supreme Court.

Their plea of issue estoppel raised a question of some general interest and importance, but the first question was whether the defendant had shown that he had an arguable defence. Only if he had did it become necessary to decide whether the rules regarding issue estoppel prevented him from raising the defence in the present proceedings.

The judgment sued upon was that of the Superior Court for the State of Arizona dated January 2, 1992. The other named guarantors were Mr William J Graham and Mrs Kerry R Graham. The formal judgment...

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42 cases
2 firm's commentaries
5 books & journal articles
  • Enforcement of Judgments in Bermuda
    • United Kingdom
    • Wildy Simmonds & Hill Offshore Commercial Law in Bermuda - 2nd Edition Part IV. Relations with the onshore world
    • 30 August 2018
    ...issues and interlocutory issues which were or ought to have been decided by foreign judgments. In Desert Sun Loan Corpn v Hill [1996] 2 All ER 847, Evans LJ described what he considered to be the established common law position as follows: “Issue estoppel has a long history, in England as w......
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill Offshore Commercial Law in Bermuda - 2nd Edition Preliminary Sections
    • 30 August 2018
    ...8.83–8.84, 8.92, 9.15 Derry v Peek (1889) 14 App Cas 337, [1886–90] All ER Rep 1, 58 LJ Ch 864, HL 9.45 Desert Sun Loan Corpn v Hill [1996] 2 All ER 847, [1996] CLC 1132, (1996) 5 Bank LR 98, CA 23.86 Deutsche Schachtbau und Tiefbohrgesellschaft mbH v R’as al-Khaimah National Oil Co (No 2) ......
  • THE HAGUE JUDGMENTS CONVENTION
    • Singapore
    • Singapore Academy of Law Journal No. 2020, December 2020
    • 1 December 2020
    ...265, 2001 Rev Ed) s 2(1). 54 Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra [2019] 2 SLR 372 at [101]; Desert Sun Loan Corp v Hill [1996] 2 All ER 847 at 858, per Evans LJ. 55 Desert Sun Loan Corp v Hill [1996] 2 All ER 847 at 856, per Evans LJ, and 863, per Stuart-Smith LJ. 56 Bi Xiaoqio......
  • The Recognition, and Res Judicata Effect, of a United States Class Actions Judgment in England: A Rebuttal of V ivendi
    • United Kingdom
    • The Modern Law Review No. 75-2, March 2012
    • 1 March 2012
    ...ies plc [1990] Ch 433,513 per Slade LJ (Adams), citing PembertonvHughes [1899] 1 Ch 781, 791;and see too Desert Sun Loan Corp vHill [1996] CLC 1132, 1145per Roch LJ (Desert Sun). In the US,Bersch vDrexel Firestones Inc 519 F 2d 974, 996–997 (2d Cir1975) (Bersch).20 Sir Lawrence Collins (ed)......
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