SA Consortium General Textiles v Sun and Sand Agencies Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE GOFF,LORD JUSTICE SHAW |
| Judgment Date | 04 July 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0704-3 |
| Docket Number | 1976 S. No. 6305 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 July 1977 |
In the Matter of the Foreign Judgments (Reciprocal Enforcement) Act 1933 Part 1 and in the Matter of a Judgment of the Tribunal De Commerce in Lille
[1977] EWCA Civ J0704-3
The Master of the Rolls
(Lord Denning)
Lord Justice Goff and
Lord Justice Shaw
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
(Mr. Justice Parker)
MR. B. NEILL, Q.C. and MR. A. SHIELDS (instructed by Messrs. Lee, Bolton & Lee, Solicitors, London) appeared on behalf of the Plaintiffs (Respondents).
MR. K. ROKINSON, Q.C. and MR. A. OWEN (instructed by Messrs. Linklaters & Paines, Solicitors, London) appeared on behalf of the Defendants (Appellants).
In this case a French company has obtained judgment in France against an English company: and seek to register the judgment here in England so that it can be enforced here. It involves several technical points.
The facts are these. There is a large textile firm in France called the Consortium General Textile. I will call it "the French company". Its head office is at Lille, but it has several branches. One of them is called Pigeon Voyageur which carries on at Lille. The other is called Coframaille which carries on at Paris.
In 1974 the Lille branch (Pigeon Voyageur) of the French company supplied thousands of trousers to English merchants called Sun & Sand Agencies Ltd. I will call them "the English company". They re-sold them to big retailers in London. The Paris branch (Coframaille) of the French company supplied thousands of T-shirts to the same English company likewise for re-sale. The invoices contained printed conditions. The Lille branch had a condition saying that all disputes were to be referred to the Commercial Court at Lille: "Toute contestation sera du ressort du Tribunal de Commerce de Lille meme en cas d'appel en garantie ou de pluralite de defendeurs". The Paris branch had a condition saying that all disputes were to be referred to the Commercial Court at Paris: "Le Tribunal de Commerce de la Seine est. seul competent pour toutes contestations".
The goods were delivered. The sum payable by the English company amounted to 448,955 French francs to the Lille branch and 280,489 French francs to the Paris branch. That came to about £50,000 or £60,000 in sterling. The debt was guaranteed by Mr. Muller, a director of the English company, up to a total of £100,000.
The sums not having been paid, the French companyinstructed London solicitors to collect it. On the 9th July, 1975 the solicitors wrote to the English company at their business address 12 Maddox Street, W.l. They specified the sums payable to the two branches, and said that unless the money was paid within 7 days they would issue proceedings against the English company in the High Court here in England.
I pause here to say that (if we were to forget for the moment the jurisdiction clauses) it was entirely proper for the French company to bring proceedings in England. Under the Convention relating to the enforcements of judgments, which is to come into effect before long, the general principle in Europe is that a creditor must seek out the debtor and sue him in the debtor's country.
The English company passed this letter to their London solicitor. On the 15th July, 1975 he telephoned to the London solicitors for the French company who made a note of the conversation. The English company's solicitor pointed out that "on the notepaper on C.G.T. (the French company) it was clearly stated that all disputes must be brought before the Tribunal de Commerce at Lille, and that therefore any action brought in England would be stayed".
On the next day, the 16th July, the solicitor for the English company wrote to the solicitor for the French company: "Sun & Sand Agencies Ltd. a their Managing Director, Mr. Muller, have asked me to deal with your letter on the 9th July and, as mentioned over the telephone yesterday, it would seem that your clients have omitted to inform you that their dispute with my clients comes within the jurisdiction of the Lille Court: see, for example, the copy letter herewith from Pigeon Voyageur dated 27th March 1975. In these circumstances, it seems to me that the jurisdiction of the High Court here in England has been ousted and perhaps you will be good enough toconsider the matter further with your clients".
It is clear from that telephone communication and letter that the English company objected to proceedings being brought in England. It said that the High Court in England had no jurisdiction. The French company accepted that point of view. Instead of taking proceedings in England, it took proceedings in Prance. On the 16th July, 1975 the French company issued a writ against the English company in the Commercial Court at Lille claiming the two sums due respectively, 280,489 French francs due to the Paris branch and 448,955 French francs due to the Lille branch together with interest; and in addition 10,000 French francs on the ground that the English company were wrongly resisting payment. This claim for 10,000 French francs was formulated in French in these words: "La resistence abusive de la Societe debitrice cause a ma requerante un prejudice qui ne saurait etre fixe a moins de 1000,00 F.F."
By that French writ the English company was summoned to appear before the Commercial Court at Lille on the 30th September, 1975. Notice of the writ was served out of the jurisdiction by the method prescribed by French law, namely, by being sent by registered letter to the English company at their registered office 12 Dryden Chambers, 119 Oxford Street, London, on the 12th August, 1975 and a reminder on the 12th September, 1975. The English company received the copy writ but, on the advice of their lawyers, ignored it. The English company did not appear on the 30th September, 1975 before the French court. They let the proceedings in France go by default.
So there being no appearance, the Commercial Court at Lille on the 14th October, 1975 entered judgment in default of appearance against the English company for the total sum of 729,444.13 French francs and interest and the sum of 10,000 French francs for damages. It added: "Since the case ispressing, the court ordains the provisional enforcement of this judgment, notwithstanding appeal, and without security". In other words, it ordered the judgment to be enforced and there was to be no stay of execution.
On the 10th December, 1975 the Commercial Court at Lille sent a copy of that judgment by registered post to the English company, adding: "You may appeal against this judgment before the Appeal Court of Douai within three months" reckoning from the date of service: and a copy was sent to the French Consulate in London for them to notify the English company. The letter sent direct to the English company was not delivered because the address was given as "Dryden Chambers" whereas it should have been "12 Dryden Chambers". But that omission was made good because a like notice was sent by the French Consul-General in London: and he notified the English company of it. He gave the English company written notice of it on the 29th January, 1976 and a reminder on the 2nd March, 1976. The English company certainly got it. But they ignored that judgment also. They did not appeal within the three months that were allowed.
On those facts it is apparent that the English company ignored the French proceedings. They did not appear or appeal. So on the face of it, the French judgment was a good judgment.
Accordingly, on the 14th July, 1976, the French company applied to the High Court of England to have the judgment of the 14th October, 1975 registered in the High Court here under section 2(1) of the Foreign Judgments (Reciprocal Enforcement) Act 1933.
The English company then for the first time did something. They opposed the registration in England. They also instructed lawyers in Lille to apply to the Commercial Court at Lille for leave to appeal out of time from the judgment of the 14th October, 1975. On the 21st December, 1976 the President of theCourt of Douai, sitting in chambers, dismissed the application. On the 25th January, 1977 the English company asserted that it could appeal without leave and entered an appeal to the Full Court at Douai.
Another step was taken by the English company. On the 27th October, 1976 they issued a writ against the French company in the Commercial Court of Paris in which the claimed damages in respect of the T-shirts supplied by the Paris branch. They claimed a sum of some £80,000 sterling which would overtop the purchase price of the T-shirts. Such are the facts.
SECTION 2(1)(b) OF THE 1933 ACT
Seeing that the judgment of the Lille court was apparently in good order, it would seem a plain case for registration under section 2(1) of the 1933 Act but the English company rely on the provisions contained in section 2(1)(b). They say that the judgment of the Lille Court should not be registered in the High Court here because, "it could not" they say "be enforced by execution in the country of the original court", that is in France.
This contention is based on the form of the judgment of the 14th October, 1975. It was a judgment by default: and under the French Code of Civil Procedure, "When a judgment by default is given against a party residing abroad it should state expressly the steps taken with a view to bringing the original summons to the knowledge of the defendant" (that is Article 49 of the 1972 Code now replaced by Article 479 of the 1976 Code). In this case the judgment of the 14th October, 1975 simply recited "Whereas the above-mentioned company was regularly summoned to appear at the...
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