Re Trepca Mines Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE ORMEROD,LORD JUSTICE HARMAN |
| Judgment Date | 13 July 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0713-2 |
| Date | 13 July 1960 |
| Court | Court of Appeal |
[1960] EWCA Civ J0713-2
Lord Justice Hodson
Lord Justice Ormerod and
Lord Justice Harman
In The Supreme Court of Judicature
Court of Appeal
Mr JOHN G. FOSTER, Q.C., Mr. C.A. SETTLE, Q.C. and MISS V.A. PEARLMAN (instructed by Mr. Sidney Pearlman) appeared on behalf of the Appellant (Applicant).
Mr. L.G. SCARMAN, Q.C., Mr. PHILIP SYKES and Mr. OWEK STABLE (instructed by Messrs. Freshfields appeared on behalf of the Respondent (Liquidator).
This is an appeal from an interlocutory judgment of Hr. Justice Roxburgh given on the 21st October, 1959, whereby he rejected an application by the applicant to reverse the decision of the liquidator of Trepca Mines Limited rejecting the proof of debt of the applicant for the sum of approximately £2,500,000. This court is asked to set aside the learned judge's order and to admit the proof either in whole or in part, or to remit the case to a learned judge of the Companies Court in order that the question at issue between the parties may be decided, it being contended in this court that the learned judge in two respects made an error in law in rejecting the applicant's proof so that he was deflected from the task which was before him of himself assessing the claim.
I think it is convenient in this connection to refer to a recent decision of Mr. Justice Buckley in the Companies Court, In re Kentwood Constructions Limited (1960 3 Weekly Law Reports, page 646), where, there having been a petition to wind up the company and the claimants, a firm of chartered accountants, having been employed to investigate the company's affairs, the claimants lodged a proof of debt in the winding-up for £525 for professional services; the liquidator rejected the proof, and the claimants issued a summons asking that the decision of the liquidator might be reversed and that the proof be ordered to be admitted in full. The learned judge, in considering the matter before him, had to consider whether it was open to him to receive evidence as to the amount of the claim and whether he could (as the rules provide) accept the claim not wholly but in part. He said this: "It was argued on behalf of the liquidator that the question before the registrar was simply whether the liquidator was right or wrong, on the evidence available to him at the date when he rejected the proof, in rejecting the proof. I do not think that is really the function of the court on an appeal from a rejection of a proof. When application is made to the court to reverse a decision of a liquidator in rejecting a proof, evidence is filed which is very commonly much fuller than the evidence available to the liquidator at the time when he decides to reject the proof; and the court is bound to decide the rights of the claimant in the light of the evidence which is before the court, and not merely to express a view as to whether the liquidator was right or wrong in rejecting the proof when he rejected it". The learned judge concluded by saying: "It is not merely the function of the court to say that a decision is right or wrong: it may vary it in any way it thinks necessary in the light of the evidence before the court. The court must approach the question de novo and determine to what extent the claimants ought to be allowed to rank as a proving creditor".
I refer to that case as showing that the position as I see it is this, that, if (as the appellant contends) the learned judge was wrong in law in the two points which he took, which excluded the applicant's proof, the matter still must be determined by the court, that is to say by the learned judge of the Companies Court, and that really it is not possible to dispose of the matter finally upon this appeal.
The only other matter to which I need refer by way of preface is this. The applicant himself, although he had been represented by Counsel before the Registrar, appeared before the learned judge in person. He did not speak English: he conducted the proceedings through an interpreter. The proceedings were conducted in English so far as the court was concerned as the court was listening to the English language through the mouth of the interpreter. But the difficulties of the learned judge P were no doubt enhanced by the fact that, in a difficult matter, questions of law were left to be decided by him without any assistance from trained lawyers acting on behalf of a man who had not command of the English language.
I now turn to the proof of debt which was rejected. It was put forward by an attorney of the applicant, a Swiss lawyer. It is based upon this, that "the company" (that is, the Trepca Mines Company) "was at the date of the commencement of the winding-up, namely the 3rd day of June, 1957, and still is, justly and truly indebted to the applicant in the sum of approximately £2,500,000, with interest at 4 per cent". Under that heading there appear five sub-headings. The first is, "in execution of the Judgment of the County Court of Belgrade of February 10th, 1954". The second, put forward alternatively, is, "the value of the creditor's contingent claim now pending in the County Court of Belgrade and the Supreme Court of Serbia for a review of the decision of the Supreme Court which reversed the Judgment of February 10th. 1954; or alternatively (3) the value of the creditor's claim to the ownership of all mining rights vested in his father on his father's death on the 10th December, 1926, and exploited by the company until the 5th December, 1946, when the mining rights were nationalised by the Federal Republic of Yugoslavia; or alternatively (4) the value of the creditor's claim to be indemnified for his loss as a result of the wrongful exploitation of the mining rights by the company and their nationalisation as aforesaid; or alternatively (5) the value of the creditor's claim that the company should account to him for the profit wrongfully made by them by the exploitation of the mining rights as aforesaid".
That proof was rejected by the liquidator; and on appeal to the Registrar the matter was not finally concluded. It appears from the notes of the arguments which were addressed to the Registrar that the Counsel then appearing for the applicant (not the Counsel now engaged in the case) put forward the contention that he was entitled to rely upon the judgment of the Belgrade Court and was adhering to the claim in full. There was a discussion before the Registrar as to whether the issues between the parties could be properly determined without Points of Claim or indeed possibly without directions being issued by which this man should be directed to bring an action in order to substantiate his claim. The Registrar never came to any conclusion upon this matter, because he took the view that it was proper to adjourn the matter to the learned judge — which he proceeded to do.
Although the proof has been rejected on the ground that the judgment of the 10th February, 1954, was no longer in existence — because, indeed, it has been reversed by a judgment of an appellate court dated 5th September, 1955 — the learned judge dealt with the matter in a different way, because he held that the judgment was not effective, being a judgment in personam, and was governed by the principle of the case of Emanuel v. Symon (reported in 1908 1 Queen's Bench at page 302), The principle enunciated in that case is to be found I think most conveniently stated in the judgment of Lord Justice Buckley at page 309. "In actions in personam there are five cases in which the courts of this country will enforce a foreign judgment: (1) Where the defendant is a subject of the foreign country in which the judgment has been obtained; (2) where he was resident in the foreign country when the action began; (3) where the defendant in the character of plaintiff has selected the forum in which he is afterwards sued; (4) where he has voluntarily appeared; and (5) where he has contracted to submit himself to the forum in which the judgment was obtained". The learned Lord Justice said; "The principle upon which this court proceeds in enforcing foreign judgments is stated by Mr, Justice Blackburn in Schibsby v. Westenholz in these words: 'We think that for the reasons there' — that is, in the case of Godards v. Gray — 'given, the true principle on which the judgments of foreign tribunals are enforced in England is that stated by Baron Parke in Russell v. Smyth, and again repeated by him in Willjams v. Jones, that the judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which judgment is given, which the courts of this country are bound to enforce; and consequently that anything which negatives that duty, or forms a legal excuse for not performing it, is a defence to the action'".
In the events which happened in this case, the defendant never having submitted to the jurisdiction of the Yugoslav court, if the rule in Emanuel v. Symon applies (as the learned judge thought) there could be no basis for this claim to succeed on the footing of a foreign judgment. But the difficulty about applying that decision in itself is this, that this is not simply a judgment in personam: it is a judgment in a mixed action which involves...
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