Abouloff v. Oppenheimer

Conclusiveness and fraud pull against each other. A foreign judgment of a competent court "cannot be reopened in England on merits" — but every system allows a judgment obtained by fraud to be attacked. The question is how far the fraud exception may go before conclusiveness is destroyed, and Abouloff is the case that gives the most generous possible answer.

It matters for the Indian student mainly because India refused to follow it. The examinable material is the pair: Abouloff and Vadala v. Lawes on one side, Sankaran Govindan v. Lakshmi Bharathi on the other.

The course states the case for the principle. What it establishes is the setting: the fraud alleged in the English action had already been alleged in the foreign court — a Russian court — and the same evidence had been given there. The defendants wished to run the charge again in England.

Do not add facts. The examinable feature of the case is precisely that the allegation was a repeat.

Lord Esher held that even if the same fraud had been alleged and the same evidence given in the Russian court, "nevertheless the defendants will not be debarred at the trial of this action from making the same charge of fraud and from adducing the same evidence in support of it".

Vadala v. Lawes confirmed it: "you can reopen the whole case even although you will have in this court" "go into the very facts which were investigated and which were in issue in the foreign court".

Step one: classify the kinds of fraud. Fraud may go to the jurisdiction — collusive statements of domicile are the standard example — or it may lie in the successful party's suppression or fabrication of evidence, or in the court itself being interested or bribed.

Step two: recognise the collision. If the foreign court has already heard and rejected the fraud allegation, then reopening it in the forum means retrying an issue the foreign court decided. That is exactly what conclusiveness forbids.

Step three: resolve it in favour of reopening. English law chose the fraud exception over conclusiveness, and chose it without qualification: repetition is no bar, and the same evidence may be led again.

Step four: accept the price. Conclusiveness is thereby, in the course's phrase, "materially and most illogically prejudiced". The rule is open to the objection that any losing defendant can convert a merits question into a fraud allegation and obtain a retrial.

It opens: the fraud defence to recognition and enforcement, and s. 13(e) in India.

Then give the Indian departure, which is the mark-scoring half. Mathew J. in Sankaran Govindan v. Lakshmi Bharathi quoted the criticism with approval and refused to follow Abouloff. He "said he was not prepared to accept a position which would permit a retrial of an issue already determined by foreign court, under the guise of alleging fraud." Trickery must be established "not by the same evidence adduced in the foreign court, but by new evidence not known to the parties at the time of the former trial." Indian law requires new evidence; English law does not.

Then give the qualification. Where the fraud goes to the jurisdictional facts, the Indian court may look again. In Satya v. Teja Singh the Court held that "fraud as to the jurisdiction of the Nevada court is a vital consideration in the recognition of the decree passed by that court", drawing from The Duchess of Kingston's Case the distinction between saying the court was mistaken, which is impermissible, and saying it was misled, which is not — "The essential distinction thus was between mistake and trickery." Y. Narasimha Rao v. Y. Venkatalakshmi confirms that "the fraud need not be only in relation to the merits of the mater but may also be in relation to jurisdictional facts."

The structure to reproduce: England will not reopen the merits at all, but will reopen everything on an allegation of fraud. India will reopen the merits only so far as s. 13(b) requires — asking whether the foreign court applied its mind to the facts and the law — and on fraud requires new evidence, except where the fraud goes to jurisdiction. Those four cases are a single argument about how far conclusiveness bends.

It does not decide: anything about public policy or natural justice, which are separate defences; nor about jurisdiction, though the fraud alleged may itself be jurisdictional.