Ermgassen & Co Ltd v Sixcap Financials Pte Ltd [2018] SGHCR 8

Significance: Singapore High Court lays down law and guidance on applications to recognise or enforce foreign judgments under the Choice of Court Agreements Act.

The Hague Convention on Choice of Courts Agreements 2005 was ratified by Singapore on 2 June 2016 and given domestic effect in Singapore on 1 October 2016 through the Choice of Court Agreements Act (‘the Act’) together with the new O 111 of the Rules of Court (‘ROC’).

On 31 May 2018, Ermgassen & Co Limited (‘the Plaintiff’), a company registered in the UK, filed an ex parte Originating Summons in the High Court of Singapore pursuant to O 111 r 2 of the Rules of Court read with section 13 of the Act.

The Plaintiff was seeking recognition and enforcement of a summary judgment made by the High Court of Justice of England and Wales against a Singapore registered company known as Sixcap Financials Pte Ltd (‘the Defendant’) for an amount of over a million.

The HC provided a comprehensive canvass of the framework for the determination of whether a foreign judgment was to be recognised in the Singapore courts.

A. Does the foreign summary judgment fall within the scope of the Act?

1. The Act applies only to foreign judgments obtained from the courts of Contracting States of the Hague Convention (‘Contracting States’). Defined under section 2(1) of the Act to mean ‘a State that is a party to the Convention’, and ‘includes, in any appropriate case … a Regional Economic Integration Organisation that is a party to, and has made a declaration under Article 30(1) of, the Convention’.

2. S 8 of the Act provides that the Act applies in every ‘international case’ where there is an ‘exclusive choice of court agreement’ concluded in a ‘civil or commercial matter’, subject to certain exceptions stipulated in s 9, 10 and 22. Section 10(1) of the Act, for instance, expressly excludes the applicability of the Act to any interim measure of protection.

a. S 4 of the Act defines ‘international case’ to include a matter which deals with the claim for the recognition, or recognition & enforcement of a foreign judgment.

b. S 3 of the Act provides that an ‘exclusive choice of court agreement’ is an agreement between 2 or more parties that is in writing; or usable for subsequent reference. The court agreement has to designate a court in the Contracting State to the exclusion of the jurisdiction of any other court for the purposes of deciding a legal dispute.

c. The criteria of ‘civil or commercial matter’ simply means that matters concerning public law and criminal law are not within the purview of the Act.

B. Does the foreign summary judgment have sufficient merit to be enforceable under the Act?

Part 3 of the Act (‘Part 3’) sets out the provisions relating to the recognition and enforcement of foreign judgments. S 13(2) of the act provides conditions under which a foreign judgment is to be recognised and/or enforced in Singapore. s 13 (2) A foreign judgment — (a) is to be recognised only if the judgment has effect in the State of origin; and (b) is to be enforced only if the judgment is enforceable in the State of origin.

S 13(3) and 13(4) then sets several rules governing the recognition of the same:

1. S 13(3)(a) of the Act provides that the High Court must not review the merits of the foreign judgment, except to the extent necessary to apply the provisions of Part 3 of the Act.

2. S 13(3)(b) of the Act provides that the High Court is bound by any finding of fact on which the court of origin assumed jurisdiction, unless the foreign judgment was given by default

3. Under s 13(4) of the Act, where a foreign judgment satisfies the requirements for recognition, or for recognition and enforcement, under Part 3 of the Act, the High Court must recognise and enforce the foreign judgment, except in the circumstances provided under Part 3 for the refusal of such recognition or enforcement; the statutory exceptions are present in s 14 and s 15 of the Act. The only grounds on which the Court must refuse to recognise or enforce a foreign judgment is when it was obtained by procedural fraud, when the recognition and/or enforcement would be against the public policy of Singapore, or when the defendant was not notified of the document by which the proceedings were instituted in sufficient time to enable them to defend the proceedings.

O 111 of the ROC helpfully lays out the procedural rules relating to an application seeking recognition and/or enforcement of a foreign judgment in Singapore under the Act.

Application

In this case, as a preliminary point, the Court considered the applicability of the Act to the judgment and held that it was applicable because:

1. The judgment was made in the UK and the UK was a Contracting State.

2. The enforcement application was made in relation to an international case which consisted of an exclusive choice of court agreement concluded in a commercial manner.

3. The enforcement application does not seek the recognition and enforcement of any interim measure of protection, which is excluded by virtue of s 10 of the Act.

Regarding the merits of the enforcement application, the Court granted the application and upheld the enforceability of the foreign judgment for the following reasons:

1. It was evident from the phrase ‘UPON HEARING COUNSEL for the claimant’ in the UK court order that the judgment was in the nature of a judgment on the merits as opposed to one that was given by default.

2. Although the Plaintiff could have done better in providing in its supporting affidavit ‘a complete and certified copy of the foreign judgment’, such omission is not fatal. At the present stage, the plaintiff may be regarded as having sufficiently discharged its burden by adducing extrinsic documents that corroborate its claim on the existence of the Judgment in the UK.

3. There are no grounds under s 14 or 15 of the Act on which the Court must or may refuse to recognise and/or enforce the Judgment was detected.

However, as the present action was commenced on an ex parte basis, the Court added that this application was granted without prejudice to the right of the Defendant to pursue any actual grounds under O 111 r 7 for determination inter partes in any setting aside application.

This case summary was written with the assistance of Yeo Ming Ze.