The High Court in England has refused to recognise the decision of a Ukrainian Court which, in the High Court’s opinion, did not comply with the Article 6 of the European Convention on Human Rights (ECHR).  

The factual background to this case dates back to 1998, is particularly complex, and is ultimately not directly relevant to the decision of the High Court. However, in brief, a Ukrainian company sought to obtain an English judgment at common law to enforce the terms of an earlier $24million Ukrainian Judgment. The Defendant to the English proceedings failed to acknowledge the claim, resulting in the entering of Default Judgment in England.  

While proceedings in England were ongoing, the Ukrainian Judgment was appealed to the Ukrainian Supreme Commercial Court (USCC). The appeal to the USCC relied upon “new” evidence. This evidence was, in fact, not “new”, but had not been previously relied upon due to the oversight of one of the parties. Nevertheless, in reliance on the “new” evidence, the original judgment was set aside by the USCC.  

Thereafter, the High Court was asked to set aside the English Default Judgment, on the basis that there was no longer a Ukrainian judgment for the English Court to recognise.

The High Court stipulated that in all cases it must be presumed that the procedures followed by a Court resulting in the setting-aside of a prior judgment were at all times fair and compliant, and that it must be very cautious when reviewing the procedures that had been followed. However, it accepted, that this presumption could be rebutted in circumstances where there had been “a clear disregard of the principles of legal certainty”.

It found that these principles had been breached in the present case, such that in setting aside the original Ukrainian Judgment, the USCC had acted in breach Article 6 of the ECHR (which enshrines an individual’s right to a “fair trial”) and the principle of legal certainty. In particular, the High Court determined that the decision of the USCC, which purported to set aside the judgment underlying the English Default Judgement, fell short of the guarantees of a fair trial required by the ECHR. Accordingly, it found that it was not bound by the decision of the USCC, and, as such, there was no requirement for the English Default Judgment to be set aside.

It is well established that a foreign judgment is impeachable on the grounds that its recognition would breach public policy. In this case, the High Court has shown its willingness to look to Article 6 of the ECHR so not to recognise and give effect to a foreign judgment.