Third Time Lucky? A Recent Case on Re-opening Judgments

“If at first, you don’t succeed, try, try again.”

While this sentiment has often been associated with Robert the Bruce observing a tenacious spider, it appears in fact to be a quotation from an improving song published in 1836 by Edward Hickson.  It is also a sentiment wholeheartedly embraced by commercial litigants over many years.

A recent case involving the Commercial Bank of Dubai’s (“CBD’s”) latest attempts to enforce judgment debts against the Al Sari family reminds us not only of the opening quotation but also of a rule first articulated in House of Spring Gardens v. Waite (No 2) [1991] 1 QB 241.

Simply stated, that rule is twofold:-

(a) First, that the English court will consider a fraud defence to an action to enforce a foreign judgment in England and Wales and that remains the case even if fraud was raised as a defence to the original claim and rejected by the foreign court;

(b) Second, however, a defendant who did not raise fraud as a defence, but instead brought separate proceedings in the same jurisdiction to set aside the judgment for fraud but failed, cannot raise the same argument to resist enforcement of the judgment in England and Wales.

In House of Spring Gardens, the claimant sued various defendants for breach of confidence in the Republic of Ireland and obtained judgment from Costello J.  Undeterred, the defendants commenced fresh proceedings in Ireland to set aside that judgment for fraud (based upon allegedly fresh evidence).  Egan J rejected the suggestion that the previous judgment had been obtained by fraud.  The claimant then sought to enforce the first judgment in England and Wales.  Again undeterred, the defendants claimed that the judgment had been obtained by fraud (based upon the same evidence which Egan J had rejected).  They did not succeed.  In the Court of Appeal, Stuart-Smith LJ held that the fundamental issue was:

“whether it would be in the interests of justice and public policy to allow the issue of fraud to be litigated again in this court, it having been tried and determined by Egan J. in Ireland.  In my judgment it would not; indeed, I think it would be a travesty of justice.”

It is difficult to disagree with the outcome.  But what if the rule developed in that decision worked in another case to produce a quite different outcome?  This was the issue faced by the Commercial Court in Commercial Bank of Dubai PSC v. Mr Abdalla Juma Majid Al Sari & Others [2025] EWHC 1810 (Comm).

The complexities of the facts of the case are difficult to summarise but, in short, it was said that various members of the Al Sari family had taken steps to prevent effective enforcement action against properties in London owned by various BVI companies.  According to the judgment, this scheme involved the creation of various documents which purported to impose a debt in the region of £115m on the BVI companies in favour of one of the defendants, a company called Globe Investment Holdings Limited (“Globe”).  In the midst of enforcement action by CBD, Globe had brought proceedings in Sharjah, UAE, against the BVI companies, seeking judgment on the basis of those documents, apparently with a view to shielding the London properties from future enforcement action.

The Sharjah Court of first instance dismissed Globe’s claim and rejected the documents evidencing the alleged debt as false, but this was overturned on appeal with the result that the BVI companies were ordered to pay Globe AED 585,652,815 (around £115m).  Two further appeals brought in Sharjah were dismissed.

Against this unpromising background, CBD sought the assistance of the Commercial Court in London seeking findings that the documents evidencing the debt to Globe were false and the UAE judgment had been obtained by fraud.  Calver J had no doubt the documents were false and that the judgment in favour of Globe had been obtained fraudulently.

However, there was a potential problem in that the issue of fraud had already been determined elsewhere and so it was necessary to consider what kind of judgments had been given.  If they were judgments dealing only and finally with the issue of fraud, then the defendants could rely upon the rule in Spring Gardens to say that the UAE court’s judgment could not be impeached.

The route taken by Calver J was to find that the various petitions filed in the UAE were not in fact separate proceedings but applications for review or reconsideration.  The English Court was not therefore precluded from relying on the first limb of the test in Spring Gardens and considering the issue of fraud afresh.

CBD’s attempts to enforce its judgments debts will therefore continue.