Henry v Geoprosco International Ltd

REVISED JUDGMENT

Lord Justice Roskill will give the judgment of the Court.

This appeal by the plaintiff from a judgment of Mr. Justice Willis dated 25th June, 1974 raises an important question as to the circumstances in which the English Courts will permit a plaintiff who has obtained a judgment against a defendant in a country to which the Foreign Judgments (Reciprocal Enforcement) Act, 1933 does not apply, to enforce that judgment by action against the defendant in the English Courts. The plaintiff at all material times lived at Calgary in Alberta. The defendants are a limited company registered in Jersey but having their head office in London. We were told they are a member of the Trafalgar House group. By an agreement in writing dated 27th May, 1970 and entered into in Calgary between the plaintiff and the defendants, the defendants agreed to employ the plaintiff as a member of an "oil well work over party" in the Trucial States. A copy of that service agreement appears at pages 23-31 of the bundle. Clause 13 (b) of that agreement (page 30) was an arbitration clause. It provided for a reference to a single arbitrator though no place for the holding of any arbitration was named. In default of agreement the single arbitrator was to be appointed by the President for the time being of the institute of Arbitrators. It was accepted before us that that reference was to the Institute of arbitrators in London and it was not suggested that the absence of any reference to a place for an arbitration to be held affected the validity of the clause. Clause 14 provided that the agreement was governed by English law. The plaintiff duly took up his appointment and went to the Trucial States. On 22nd September, 1970 the defendants summarily dismissed the plaintiff - page 35. They say thatthey had good reason so to do - page 38. The plaintiff then returned to Calgary and consulted a firm of barristers and solicitors in that city. On 13th October, 1970 (page 36) in a letter to the defendants which never reached them and again on 13th November, 1970 (page 37A) in a letter which did reach the defendants, that firm advanced a claim on the plaintiff's behalf for damages for alleged wrongful dismissal totalling $42,502.22. The letter expressed the opinion that the Alberta Courts had jurisdiction to entertain the claim since the contract had been entered into in Alberta. The letter further asserted that since the defendants had been guilty of a fundamental breach of contract, the plaintiff was no longer bound by the arbitration clause. The former assertion was plainly correct under Rule 30(f)(i) of the Rules of the Supreme Court of Alberta (page 142) - which closely resembles ( mutatis mutandis) the provisions of Order 11, Rule 1(f)(i) of the Rules of the Supreme Court of this country. The contrary was not asserted in argument before us. The latter assertion was, as a matter of English law, equally plainly incorrect. Heyman v. Darwins (1942) Appeal Cases 356.

On 31st December, 1970 the plaintiff started proceedings against the defendants in the Supreme Court of Alberta. This was done by service of a statement of claim (pages 19-20). This is the correct method of instituting proceedings in the Supreme Court of Alberta. Proceedings in that court are not begun by the issue of a writ. The Supreme Court duly gave leave to serve that statement of claim on the defendants outside the jurisdiction. Service was subsequently effected upon the defendants in Jersey.

On 14th April, 1971 (page 42) the defendants invited the plaintiff to discontinue the proceedings by reason of thearbitration clause in the service agreement. The plaintiff refused.

The next relevant event was that on 30th June, 1972 the defendants served a notice of motion on the plaintiff seeking an order setting aside the service of the statement of claim on three grounds and further seeking as an alternative fourth ground a stay of the proceedings by reason of the presence of the arbitration clause. Of the three grounds, the first ultimately became irrelevant. The second was that the plaintiff' affidavit seeking leave to serve out of the jurisdiction was defective. The third was that the Supreme Court of Alberta was not the forum conveniens. On 17th July, 1972 the plaintiff expressed willingness to arbitrate the dispute in Alberta but not in England. The notice of motion, which was returnable before the learned Chief Justice of the Trial Division (Chief Justice Nilvain) on 4th August, 1972 was thereupon adjourned until 31st August to give the defendants time to consider the plaintiff's offer. The defendants subsequently rejected the offer and the motion accordingly came on for hearing on 31st August, 1972. The learned Chief Justice refused the motion. Notice of appeal against his decision was given on 12th September, 1972 (page 48). On 14th September the learned Chief Justice granted a stay of execution upon his order pending the bearing of the appeal (page 51A). We have not the advantage of the transcript of any judgment of the learned Chief Justice. On 1st December, 1972 the Court of Appeal of Alberta dismissed the defendants' appeal. Here again we have not got the advantage of the transcript of any decision of that court. Thereafter the defendants took no further part in the proceedings.

It is to be observed that at no time was it argued for the defendants that the Supreme Court of Alberta had no jurisdiction to entertain the action. It seems plain that such an argument must have failed having regard to the clear terms of Rule 30 of the Rules of the Supreme Court of Alberta to, which we have referred. This was no doubt the reason why no such argument was advanced. Grounds 2 and 3 above referred to in effect invited the Supreme Court to exercise its discretion not to allow service to stand. The application for a stay because of the arbitration clause was expanded in the notice of appeal to the Court of Appeal of Alberta to allege that clause was a Scott v. Avery clause. As a matter of English law this last submission was plainly untenable upon the true construction of that clause.

It is to be observed that the defendants' right to apply' for a stay because of the presence of the arbitration clause in the service agreement arose by virtue of Section 4(1) of the Arbitration Act of Alberta,. This subsection, the text of which is set out in full at page 115, closely resembles the provisions of Section 4(1) of the English Arbitration Act, 1950. But the procedure of the Supreme Court of Alberta makes no provision for the entry of an appearance (whether conditional or otherwise) by a defendant. Accordingly whereas the relevant provisions of Section 4(1) of the English Arbitration Act, 1950 permit a defendant to apply to the Court for a stay "at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings Section 4(1) of the Alberta Arbitration Act requires such an application for a stay to be made "At any time before delivering any pleadings or taking any other steps in the proceedings…".

The defendants' appeal to the Court of Appeal of Alberta having been dismissed, the defendants, as already stated, took no further part in the proceedings. The plaintiff thereupon obtained judgment against the defendants in default and on the 11th April, 1973 judgment was entered for the plaintiff by the learned Chief Justice of the Trial Division for $41,879.46 for damages for breach of contract "including taxable costs inclusive of disbursements." (See pages 55-56). The judgment roll of the Supreme Court of Alberta records that the defendants had failed to file a defence or appear at the trial.

On 3rd July, 1973 the present proceedings were begun by specially endorsed writ of that date. The plaintiff's claim was for £16,819.06, being the sterling equivalent of the amount for which judgment had been entered in Alberta, converted into sterling at the rate of $2.49 to the sterling - see pages 8-9. On 12th July leave was given to serve that specially endorsed writ on the defendants in Jersey - see page 10. The defendants thereupon duly entered an appearance. The plaintiff proceeded by way of Order 14. On 19th November Master barren gave unconditional leave to defend - page 11. on 13th November (page 13) the defendants served their defence. Paragraph 2 alleged that the judgment obtained in Alberta was a default judgment and that no one appeared for the defendants. Paragraph 3 averred that the defendants had protested but had not submitted to the jurisdiction of the Alberta Courts. A reply was delivered on 30th April, 1974. Neither party pleaded any relevant provision of the law of Alberta. The trial took place before Mr. Justice Willis on 21st-24th May, 1974 and on 25th June, 1974 the learned judge gave judgment for the defendants. It is against that judgment that the plaintiffnow appeals. In essence the plaintiff's case which the learned judge rejected was that the defendants in the circumstances already outlined had submitted voluntarily to the jurisdiction of the Supreme Court of Alberta and that accordingly on well established English legal principles of private international law, the...