Good Challenger Navegante S A v Metalexportimport SA: CA 24 Nov 2003

The claimant sought to enforce an arbitration award made in 1983. Time might otherwise have expired, but the claimants relied on a fax which they said was an acknowledgement of the debt, and also upon a finding in a Romanian court which created an issue estoppel.
Held: A typed signature on a fax was capable of being an acknowledgement since section 30 derived from the 1677 Act which would have accepted such. ‘The crucial point here is that Navlomar’s typed signature appeared on the telex in circumstances in which it is evident that it was put on with Navlomar’s authority’ and ‘to establish an issue estoppel four conditions must be satisfied (1) the judgment must be given by a foreign court of competent jurisdiction; (2) the judgment must be final and conclusive and on the merits; (3) there must be identity of parties; and (4) there must be identity of subject matter, which means that the issue decided by the foreign court must be the same as that arising in the English proceedings.’ The issue had not been a necessary part of the Romanian decision (under 2 above), and therefore no issue estoppel arose.
When an ex parte application for leave was made under s.26, that was an action brought for the purposes of s.7 of the Limitation Act 1980; that was because such an application was an alternative to proceeding by way of writ or originating summons.


Lord Justice Clarke Lord Justice Mantell Mr Justice Rimer


[2003] EWCA Civ 1668, Times 27-Nov-2003, Gazette 15-Jan-2004, [2004] 1 Lloyd’s Rep 67




Limitation Act 1980 30


England and Wales


CitedAgromet Motoimport Ltd v Maulden Engineering Co (Beds) Ltd 1985
Time begins to run on the collection of an arbitration award, not from the date upon which the award is made or published, but from the date when the paying party is in breach of its implied obligation to pay the award. . .
CitedSchneider v Norris 1814
The name of a seller was printed on a bill of parcels but he in turn wrote on the contract the name of the purchaser.
Held: The seller had adopted the writing of his own name and a signature within the Statute of Frauds. The essential . .
CitedThe Anemone 1987
Owners wished to let their vessel on time charter to Afram Line Limited but were unwilling to do so without a guarantee. The negotiations were conducted by Centre Shipping on behalf of owners and Dipgrove Holdings on behalf of charterers. It was . .
CitedDecouvreur v Jordan CA 1987
The essential characteristics of a signature are that it indicates recognition and approval of the contents of a document.
Nourse LJ said: ‘Any writing by the party to be charged by which he identifies himself or by which he can be identified . .
CitedCarl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) HL 1966
An agency had to be proved in a search to identify an entity which the law recognised (a) existed and (b) was legally responsible for the acts in issue in the proceedings. The House was asked whether the fact that an issue had already been . .
CitedThe Sennar (No 2) HL 1985
The Henderson v Henderson principle should only be applied where it is clear (i) that the decision or determination relied on was made by a foreign court of competent jurisdiction and (ii) the decision upon the issue later sought to be raised is a . .
CitedDesert Sun Loan Corporation v Hill CA 21-Feb-1996
A defence of Issue Estoppel was not available where the issue which was claimed to have been decided had been made under an unclear foreign procedure. It was also essential that the issue in respect of which an estoppel was now asserted had been a . .
CitedGodard v Gray 1870
A judgment in personam of a foreign court of competent jurisdiction cannot be questioned or impeached by the parties on the merits when recognition or enforcement of the judgment is sought in England, notwithstanding that it may have been wrong . .
CitedArnold v National Westminster Bank Plc HL 1991
Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
CitedRegina v Inhabitants of the Township of Hartington Middle Quarter 22-Feb-1855
Coleridge J said: ‘The question then is, whether the former judgment concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide, and which was actually decided, as the groundwork of the decision . .
CitedPenn-Texas Corporation v Murat Anstalt (No 2) CA 1964
The court considered a claim for an issue estoppel arising from a foreign judgment: ‘In my opinion a previous judgment between the same parties is only conclusive on matters which are conclusive and necessary to the decision. It is not conclusive on . .
CitedThoday v Thoday CA 1964
The court discussed the difference between issue estoppel, and action estoppel: ‘The particular type of estoppel relied upon by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. The first . .
CitedRe State of Norway’s Application (No 2) CA 1988
The basic requirement for an issue estoppel to arise was that ‘the earlier determination relied on as raising an issue estoppel shall have been fundamental to the decision first arrived at’. The Board did not accept that an issue estoppel is . .
CitedDuedu v Yiboe PC 1961
. .
Appeal fromGood Challenger Navegante S A v Metalexportimport S A ComC 10-Jan-2003
. .
CitedHunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .

Cited by:

CitedBritish American Tobacco (Investments) Ltd v United States of America CA 30-Jul-2004
The claimant appealed an order for its London solicitor to be examined in connection with proceedings in the US.
Held: A court should not make an order which was superfluous. The witness had now given his evidence. However, the foreign . .
CitedNational Ability Sa v Tinna Oils and Chemicals Ltd CA 11-Dec-2009
Implied promise to pay arbitral award
The parties disputed how limitation affects the enforcement of an arbitration award. More than six years had passed since the award had been made, and the defendant said it was out of time.
Held: A party can enforce an award either by ordinary . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Limitation

Updated: 14 November 2022; Ref: scu.188223