Guest blog: Pupil barrister, Ian McDonald, blogs on the Abouloff rule

11 January 2018

Ian MacDonald (2017 essay comp winner)

I have been fascinated by the topic of common law defences to the recognition and enforcement of foreign judgments in England since being introduced to it on the Conflict of Laws module of the Bachelor of Civil Law course at Oxford. It was the defence of fraud - as moulded by the Court of Appeal in Abouloff v Oppenheimeras long ago as 1882 - and its subsequent judicial treatment, both in this country and in other common law jurisdictions, that particularly caught my eye. When it came to entering the Bar Council's 2017 Law Reform Essay Competition, therefore, the so-called "Abouloff rule" struck me as the obvious subject to write upon. 

The English common law regards fraud as "a thing apart", capable of unravelling all. Accordingly, any judgment of any court, if obtained by fraud, is vulnerable to challenge. One might conclude, then, that there is nothing inherently more offensive about a fraudulently procured ruling from abroad than one acquired here at home. At present, however, the English common law, in the face of fraud, does draw such a distinction in its handling of judgments foreign and domestic. 

A foreign ruling may be impeached for fraud even where no new evidence has been unearthed; where the allegation has already been examined - and rejected - in the overseas proceedings; and even where the judgment debtor knew of the "fraud", at the time of the foreign action, but opted not to raise it. Thus, the scope of the fraud defence is incredibly wide. Its breadth is all the more striking, though, when measured against the rule adopted for domestic rulings. For a party may seek to set aside an English judgment only if he can put forward fresh evidence of fraud, of a decisive nature, which could not previously have been produced with reasonable diligence.

Understandably, this double standard has long attracted criticism. G.C. Cheshire described it as "inconvenient", "often unjust", "inconsistent", and "unsound". Horace E. Read, meanwhile, took the view that "there can be little doubt that the English courts are wrong". And the Abouloff rule has been abandoned in other common law jurisdictions, notably Canada and Singapore. In this country, however - despite a palpable judicial coolness - it survives. Any reform, therefore, will likely have to come from Parliament. 

In my essay entry, I argue that the time for change has now come. After all, in light of the United Kingdom's forthcoming departure from the European Union, some recalibration of English private international law - so heavily influenced by EU regulation in recent years - is inevitable. What finer opportunity, then, to reconsider our common law rules, also, and ensure that they, too, are fit for purpose in a post-"Brexit" world? 

The reform which I propose - that is, following the lead of the Supreme Court of Canada, in Beals v Saldanha, and implementing the same standard for foreign rulings as for domestic judgments - would bring an end to the Abouloff double standard, and balance more effectively the need to guard against fraudulently obtained rulings with the need to treat foreign judgments as final. 

Any suggestion that this would somehow take the side of the alleged fraudster over the negligent judgment debtor is, I think, misplaced. Is that what the English courts are currently doing, in demanding fresh evidence before considering setting aside a domestic judgment: favouring the fraudulent? Of course not. Rather, all that the change would require is that parties exercise reasonable diligence - as indeed they should in all litigation, not least the contesting of a foreign action.

In my view, the recommended reform is both desirable - in that it would better honour established doctrines of obligation andres judicata, and bring up-to-date a law that is stuck in the 19th century - and practical, given that it would mirror the approach of other common law jurisdictions and simply afford the same finality to foreign judgments as is currently bestowed to their domestic equivalents.

Such a shift might prove particularly useful, too, given the possibility, post-"Brexit", that judgments of the courts of some European partners might again be subject to common law rules, including the fraud defence, in that it would provide increased protection against abuse and tactical re-litigation, thereby limiting cost and complexity (and the English courts' caseload) and helping to foster future judicial cooperation with other countries, in Europe and beyond. 

I was absolutely delighted to learn that the Law Reform Essay Competition judges were suitably persuaded, and that my call for change had been chosen as the winning entry for 2017. I am incredibly grateful, also, to the Bar Council Scholarship Trust for sponsoring the contest. The prize money will inevitably go towards repaying the costs of my legal education, but, fittingly, there is also a new book on the recognition and enforcement of foreign judgments that I have my eye on. 

Ian McDonald is a Pupil Barrister at 4 New Square and a member of the Middle Temple. Prior to coming to law and the Bar, he originally trained and worked as a journalist. The opinions expressed above are his own.