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Lloyd's Maritime and Commercial Law Quarterly

ENFORCING AND REINFORCING AN ENGLISH JUDGMENT

Masri v. Consolidated Contractors

It is one thing to get judgment; it is quite another to enforce it, and the risk that an English judgment may be unenforceable reduces the incentive for a claimant to come and sue for it. This unwelcome realization gave birth to the pre- and post-judgment Mareva injunction—a brilliant piece of judicial engineering if ever there was one. It now seems to have spawned two further pieces of intelligent design aimed at making an English judgment more effective in the wider world. These are an understanding of receivership by way of equitable execution which will insulate this form of enforcement from objections based on the allegation that the English court is overreaching itself and interfering with another court’s business, and the post-judgment anti-suit injunction. The litigation which gave rise to Masri v. Consolidated Contractors International Co SAL 1 is wide-ranging and still raging, and much more can probably be expected before the parties succeed in litigating each other into the ground. But the real importance lies in the way the Court of Appeal saw its orders as routine and unremarkable incidents of adjudication before an English court; as ordinary aspects of civil process.
The litigation between Mr Masri (“M”) and two entities forming part of a Lebanese group with interests in an oil concession in the Yemen has gone on for a long time. After a dispute over jurisdiction, an aspect of which was still pending before the House of Lords,2 Gloster J gave judgment against the defendants for some $55 million. The defendants made it pretty clear that they would sooner eat their own feet than do what the judgment ordered them to do: they intended “to take all possible steps in the world to resist compliance with the English judgment”,3 as Lawrence Collins LJ summarized it. M therefore applied for two orders to help him enforce his judgment.4 In its earlier judgment

1. [2008] EWCA Civ 303; [2008] 2 Lloyd’s Rep 128 (receivership), affirming a splendid judgment by Gloster J at [2007] EWHC 3010 (Comm); [2008] EWCA Civ 625 (anti-suit injunction), affirming the judgment of HH Judge Mackie QC at [2007] EWHC 1510 (Comm). A third judgment, [2008] EWCA Civ 876; [2008] 2 Lloyd’s Rep 301 (order for examination), applied the reasoning in the first judgment to uphold an order that directors of the judgment debtor be summoned under CPR r 71.2 to give evidence as to assets even if they were domiciled in Greece as (i) they were not being sued, so derived no jurisdictional privilege from the Brussels Regulation, and (ii) in any event the order was ancillary to the exercise by the English court of substantive jurisdiction. It does not call for separate treatment.
2. On appeal from [2005] EWCA Civ 1346; [2006] 1 WLR 830. As at the end of July 2008 it was uncertain whether the appeal was still effective.
3. At [25].
4. In the two cases discussed in this note, the substantial judgment was given by Lawrence Collins LJ. He did not deliver the judgment in the third one, mentioned in fn.1 but not otherwise discussed.

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