In ED & F Man Sugar Ltd v Lendoudis – Butterworths Law Direct 10.10.07 the Claimant obtained an award against the Defendant in March 1994. A supplemental award was issued that April. It obtained a judgment from a Greek Court in March 1995, which 'recognised and declared as executable in Greece' those awards. That decision was ultimately upheld on appeal in June 2001. In May 2007, the claimant issued a CPR Pt 8 claim form, seeking an order under CPR 62.18 (1) (c) and s 26 of the Arbitration Act 1950 granting permission to enforce the awards as a judgment, or, alternatively, to register for enforcement the Greek first-instance judgment under either Council Regulation (EC) 44/2001 (the Judgments Regulation) or the Brussels Convention. The arbitration application was supported by a witness statement. Those orders were granted. Subsequently, both the Claimant and the Defendant applied to have them set aside.
It was conceded that each limb of the application had been defective as the arbitration application was out of time and the Greek judgment was outside the scope of the Judgments Regulation and the Brussels Convention. The Claimant submitted, however, that it was entitled, inter alia, to enforce that judgment at common law. Although no such claim had featured in the Pt 8 claim form, it argued that points of law did not have to be pleaded and relied on CPR 17.4(2), which permitted the addition of a new cause of action even after the expiry of the relevant limitation period.
The Commercial Court held that if the draftsman of a pleading intended to be served out of the jurisdiction could reasonably be understood as presenting a particular head of claim on one specific legal basis only, the claimant could not thereafter be permitted to contend that that head of claim could also be justified on another legal basis. However, the position might be different if there was no basis upon which the defendant could hope to resist the grant of permission.
It held that it was not the intention of the provision in the CPR whereby permission to serve out could be granted retrospectively to open the door to circumvention of the procedure for obtaining permission to serve out of the jurisdiction.