The Court of Appeal has unanimously allowed an appeal against a first instance decision to summarily dismiss the appellant's attempt to enforce in the UK a Russian court's damages award. The Court used the opportunity to provide useful commentary on the finality principle and its interplay with Article 6 of the ECHR. In particular, it provided much needed clarity on the application of the finality principle to foreign judgments. Where it is alleged that a later foreign judgment infringes the finality of an earlier foreign judgment, that allegation must be test against the laws of the foreign judgment rather than the laws of the place of enforcement.
The Defendants, Boris Berezovsky and Nikolay Glushkov, were convicted under Russian criminal law of defrauding the Claimant / Appellant, Aeroflot, in 2007 and 2006 respectively. As part of those criminal proceedings, Aeroflot secured civil damages awards from each of the Defendants (possible under Russian law) ("the First Russian Judgment"). In 2010, the Russian authorities recovered those damages from the Defendants' Swiss bank accounts.
Following that recovery, Aeroflot brought Russian 'indexation' proceedings (a procedure used to take account of the high level of inflation in Russia). Aeroflot was successful in those proceedings and the Russian courts accordingly granted an uplift on their initial civil damages awards from 2006 and 2007 ("Second Russian Judgment").
Aeroflot commenced action in the UK in 2012 to enforce the Second Russian Judgment. The claim was, however, summarily dismissed on the ground that the Second Russian Judgment breached the finality principle (because it amounted to a re-litigation of the First Russian Judgment). Aeroflot appealed.
The Court of Appeal unanimously agreed that Floyd J had been wrong to decide that the test for summary dismissal was satisfied. It found that the English court would need to make findings of fact on Russian law to decide whether or not the First Russian Judgment was final and binding. This was because the finality of a foreign judgment must be assessed according to the applicable foreign law, not English law. Until such findings of fact had been made, it was not possible to know if the Second Russian Judgment had breached the finality principle. For that reason, the proceedings could not be summarily dismissed.
Arden LJ took the opportunity to provide some useful commentary on the application of the finality principle and Article 6 of the ECHR:
Arden LJ commented that is difficult to find a comprehensive definition of the finality principle. She established that the case of Varniené v Lithuania (App No 42916/04) sets out the broad concept of finality, that a party is not "entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination". Arden LJ then stated that further elements of the principle had also been provided under English law including:
- issue estoppel (an earlier final and binding decision will prevent any re-litigation not only of the same cause of action but also of any issue decided in it);
- Henderson v Henderson (parties must bring their whole case, and cannot repeat litigation of the same matter under new heads); and
- election of remedies (in exercising one of multiple co-existent but inconsistent remedies, a party is precluded from exercising any of the other remedies).
Article 6 ECHR
After finding that the finality principle clearly engages the Article 6 right to a fair trial, the Court of Appeal went on to consider the interplay between the principle and ECHR rights. In particular, Arden LJ commented that, in her view, if there was a threshold of seriousness to be applied to Article 6 breaches, then a violation of the finality principle would be sufficiently serious to constitute such a breach. Although there is no "presumption of compliance" with the Article 6 right as such, "Courts must, for reasons of practicality, proceed on the basis that until the contrary is shown they can assume that procedural steps were done properly". However, if the court were to find that the First Russian Judgment was final and binding, then the Second Russian Judgment would constitute a "flagrant" breach of Article 6.