Coram: Howie P, Scott, Zulman, Van Heerden JJA, et Cachalia AJA
Heard: 8 May 2006
Delivered: 1 June 2006
Summary:Prescription – extinctive prescription – conflict of laws –whether lex fori, South African law, determined issue of prescription and not lex causae, English law – recognition and enforcement by South African court of English judgment – international jurisdiction of English court – whether enforcement of English judgment contrary to South African public policy.
Neutral citation: This judgment may be referred to asSociety of Lloyd’s v Price; Society of Lloyd’s v Lee [2006] SCA 87 (RSA)
JUDGMENT
VAN HEERDEN JA:
Introduction
In June 2003, the appellant (Lloyd’s) instituted separate claims for provisional sentence against the two respondents (Price and Lee, referred to collectively as ‘the defendants’). Both claims were based on default judgments obtained by Lloyd’s against the two defendants in the High Court of Justice (Queen’s Bench Division, Commercial Court), London, England on 27 June 1997 (in the case of the defendant Lee) and 13 October 1997 (in the case of the defendant Price), respectively. In terms of the English Judgments Act 1838, interest on these judgments runs at the rate of 8 per cent per annum. The claims were dismissed with costs by Mynhardt J in the Pretoria High Court on the grounds that they had become prescribed, hence this appeal, which comes before us with the leave of the court below.1
Background
In the provisional sentence summonses Lloyd’s alleged that the English court was a court of competent jurisdiction by virtue of the fact that each defendant had entered into a General Undertaking, clauses 2.1 and 2.2 of which provide as follows:
‘2.1 The rights and obligations of the parties arising out of or relating to the Member's membership of, and/or underwriting of insurance business at, Lloyd's and any other matter referred to in this Undertaking shall be governed by and construed in accordance with the laws of England.
2.2 Each party hereto irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute and/or controversy of whatsoever nature arising out of or relating to the Member's membership of, and/or underwriting of insurance business at, Lloyd's and that accordingly any suit, action or proceeding (together in this Clause 2 referred to as ''Proceedings'') arising out of or relating to such matters shall be brought in such courts and, to this end, each party hereto irrevocably agrees to submit to the jurisdiction of the courts of England and irrevocably waives any objection which it may have now or hereafter to (a) any Proceedings being brought in any such court as is referred to in this Clause 2 and (b) any claim that any such Proceedings have been brought in an inconvenient forum and further irrevocably agrees that a judgment in any Proceedings brought in the English courts shall be conclusive and binding upon each party and may be enforced in the courts of any other jurisdiction.’
Lloyd’s alleged further that the default judgments obtained by it were final and conclusive. The background to the obtaining of these judgments has been set out fully in the judgment of the court a quo, and it is accordingly not necessary to repeat this exercise for purposes of the present judgment, save to the extent necessary to contextualise the consideration of relevant issues.
The basis of the default judgments was Lloyd’s claim against each defendant for payment of the so-called ‘Equitas premium’ which is said onbehalf of Lloyd’s to have arisen ‘in very unusual circumstances’. During the 1980’s, a considerable number of persons (including the defendants) were recruited to become new underwriting members (so-called ‘names’) of Lloyd’s. Thereafter, many of them (together with many existing names) suffered serious losses, in the main as a result of the underestimation of the size of the losses which would be coming into the market. These losses were caused in large part by claims arising out of asbestosis litigation in the United States of America.
Proceedings instituted by groups of names were largely successful and resulted in judgments in their favour against members’ agents, managing agents and even auditors. By 1993, it appeared that Lloyd’s itself might be at risk of being sued. In order to resolve the anticipated ‘avalanche of litigation’ that was threatening to destroy the Lloyd’s market, Lloyd’s adopted a ‘reconstruction and renewal plan’ (‘R & R’). It offered names a settlement of certain claims in respect of 1992 and prior underwriting years, such settlement involving a mutual waiver of claims. A newly formed insurance body known as Equitas Reinsurance Ltd (‘Equitas’) undertook to re-insure names’ liabilities arising out of non-life business written in and before 1992 and to run-off these reinsured liabilities. Equitas would be funded by means of moneys paid by Lloyd’s from its Central Fund and by premiums paid by all names whose outstanding liabilities were thus re-insured. Those names who accepted the plan received financial benefits in the form of certain debt credits being used to discount their liabilities in part. Even those who did not accept the plan (including the defendants), while they did not receive the said financial benefits, were nevertheless obliged to re-insure with Equitas and pay the premiums.
The means used by Lloyd’s to implement R & R – and, in effect, to impose the Equitas contract and the obligation to pay the Equitas premium even on those names who rejected the settlement offer – were summarised by Mynhardt J in the court below as follows:2
‘[22] In order to introduce and implement the settlement offer Lloyd’s had to make use of its statutory powers to make bye-laws. Members had, in any event, to enter into a standard form agreement known as the 1986 General Undertaking, which included an undertaking by the member to comply with the Lloyd’s Act and any subordinate legislation made by Lloyd’s thereunder and also with any direction made by the Council of Lloyd’s and also to become a party to any agreement as may be prescribed or notified to the member or his underwriting agent by the council.
The provisions of the General Undertaking form the basis of the contention of Lloyd’s that it has succeeded in procuring all members to become parties to the Equitas contract. It achieved that, so it contended, by using its statutory powers to make bye-laws.
In terms of bye-law 20 of 1983 the Council of Lloyd’s was empowered to appoint a substitute agent to take over the whole or any part of a member’s underwriting business.
On 3 September 1996 the Council appointed a substitute agent, Additional Underwriting Agencies (No 9) Ltd, “AUA9”, a company controlled by Lloyd’s, and also based in London, to take over all non-life business written in or before 1992 for all members. AUA9 was directed to give effect to the R & R plan for which provision had been made in 1995 by bye-law 22 of 1995.
[23] In regard to members who have not accepted the R & R plan Lloyd’s rely on clauses 2.1 and 2.2 of the 1986 General Undertaking . . . .
In terms of the Equitas reinsurance contract AUA9 was authorised to accept service of all process on behalf of members who have not accepted the R & R settlement plan. It is on this basis that Lloyd’s contend that the process which was issued out of the English Court in London was properly served on Price and Lee. The writ of summons in each
case was duly served on AUA9 and that constituted proper service under English law.
[24] The steps that were taken by Lloyd’s to enable it to sue members, like Price and Lee, who have not accepted the settlement, for payment of the “Equitas premium”, were attacked by various members. All these attacks failed and were dismissed by the English Courts.3 The judgments that were obtained are now final and conclusive and no further appeals are possible.’
The defendants relied on three defences in the court a quo, which are also advanced on appeal. First, that Lloyd’s claims had become prescribed by virtue of the provisions of the South African Prescription Act 68 of 1969; second, that the English court did not have international jurisdiction in terms of South African law to grant the two judgments, and third, that it would be against public policy, as determined by the South African courts, to recognise and enforce the two judgments here. As indicated above, Mynhardt J found against Lloyd’s on the prescription point and accordingly refrained from expressing any opinion on the second and third defences.
The defence of prescription
Lloyd’s claims are based on default judgments obtained in an English court more than three years, but less than six years, before the provisional sentence summonses were served on the defendants in this country. It is common cause that if English law should be held to govern the issue of prescription, as contended by Lloyd’s, the claims on the judgments would not have become statutorily limited (prescribed). In this regard, s 24 of the English Limitation Act 1980 provides as follows:
‘24(1) An action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.
(2) No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.’
If South African law applies, however, as submitted by the defendants, the claims would have become prescribed after the lapse of three years in terms of s 11(d) of the Prescription Act 68 of 1969 (‘the Act’), unless the judgments of the English court were regarded as ‘judgment debts’ within the meaning of s 11(a)(ii) of the Act, in which event the prescriptive period is 30 years and the claims would not have prescribed.
English or South African Law?
According to principles of South African private international law, matters of procedure are governed by the domestic law of the country in which the relevant proceedings are instituted (the lex fori). Matters of substance are, however, governed by the law which applies to the underlying transaction or occurrence (the proper law or lex causae).4 The same rule applies in English private international law.5 A distinction has traditionally been drawn, in both South African and English law, between two kinds of prescription/limitation statutes: those which extinguish a right, on the one hand, and those which merely bar a remedy by imposing a procedural bar on the institution of an action to enforce the right or to take steps in execution pursuant to a judgment, on the other. Statutes of the former kind are regarded as substantive in nature, while statutes of the latter kind are regarded as procedural.6
By virtue of the provisions of clauses 2.1 and 2.2 of the General Undertaking referred to above, the proper law of the contracts entered into between Lloyd’s and the defendants – the lex causae – is English law. Counsel for Lloyd’s relied on the provisions of clause 2.1 in support of their argument that the English law of prescription should apply, contending that there was nothing in the wording of this ‘choice of law’ clause which mandated the imposition of a South African prescription regime. To my mind, however, this argument is self-defeating by reason of the fact that it is precisely the provisions of English law that require matters of procedure to be determined in accordance with the lex fori and, as will be discussed below, on the face of it prescription under the English Limitation Act 1980 is, according to English law, a procedural matter.
Counsel for Lloyd’s contended further that, in determining whether the relevant provisions of the English Limitation Act 1980 should be classified as procedural or substantive, this court should adopt the ‘via media approach’ followed by Schutz J in Laurens NO v Von Höhne.7In that case, one of the issues to be decided was whether German law or South African law had to be applied in regard to the defence of prescription raised by the defendant. Schutz J reasoned as follows:8
‘The traditional rule has been that the lex fori characterises according to its own law without looking further. In some cases this can lead to unfortunate results and because of that various writers, Falconbridge9 being an important early one, have much stirred the question. Falconbridge’s approach is a via media according to which the Court has regard to both the lex fori and lex causae before determining the characterisation.
According to him, although the matter is one for the law of the forum, the conflict rules of the forum should be construed “sub specie orbis”, that is from a cosmopolitan or world-wide point of view, so as to be susceptible of application to foreign domestic rules….
In doing so it will pay full attention to the “nature, scope and purpose” of the foreign rule in its context of foreign law. What the forum should do, so it is contended, is to make a provisional characterisation having regard to both systems of law applicable, followed by a final characterisation which takes into account policy considerations .… …It is also contended for the via media that it tends to create international harmony and leads to the decision of cases in the same way regardless of which country’s courts decide them…
… For myself, I accept the via media and propose to follow it through wherever it leads. We may not dare to let our law stand still.… private international law is a developing institution internationally and our own South African private international law cannot be allowed to languish in a straightjacket.’
On the specific issue of prescription, Schutz J said the following:10
‘…Our Prescription Act, as interpreted in Kuhne’s case, is classified as substantive so that it is not a matter for the lex fori. German law, even although their prescription laws are only remedy-barring, characterises them as substantive. I follow the via media. Looking at both the lex fori and the lex causae, the policy decision is in my view obvious. German law should be applied. In this case there is no conflict between the two systems. The situation differs from that in the Laconian case11 at 530I-J, so that there is not even a temptation to fall back on the residual lex fori.’
In the present case, unlike in the Laurens case, there is a potential conflict between the two applicable systems of law. However, to my mind, this via media approach is the appropriate one in dealing with the kind of problem with which we are now confronted. Not only does it take cognisance of both the lex fori and the lex causae in characterising the relevant legal rules, but it also enables the court, after this characterisation has been made, to determine in a flexible and sensitive manner which legal system has the closest and most real connection with the dispute before it.
The first stage in this via media approach – to determine, according to principles of South African law (the lex fori), whether prescription in terms of the Act is substantive or procedural – is perfectly straightforward. In South African law, it is clear that prescription extinguishes a right. Section 10(1) of the Act provides that –
‘Subject to the provision of this Chapter and of Chapter IV, a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt.’
This means that prescription, in South Africa, is characterised or classified as a matter of substantive law and is not simply procedural, as was the case under the old Prescription Act 18 of 1943, s 3(1) of which rendered a right of action unenforceable without extinguishing it.12
The second stage requires a determination of whether, according to the principles of English law (the lex causae), the relevant English statutory provision (s 24 of the English Limitation Act 1980)13 is procedural or substantive. This section does not have the effect of extinguishing the right in question, but merely imposes a procedural bar on bringing an action to enforce it. Limitation in terms of this section is thus, according to the ‘traditional’ characterisation/classification referred to above, ‘a procedural matter, and not one of substance: the right continues to exist even though it cannot be enforced by action.’14
Counsel for Lloyd’s submitted, however, that the coming into force of the Foreign Limitation Periods Act 1984 in England rendered defunct the previous English distinction between substantive and procedural statutes of limitation, with the effect that the relevant English law to be applied by this court is now also in effect a matter of substance and not a matter of procedure.
In my view, Mynhardt J in the court below correctly rejected this argument. The relevant provisions of the 1984 Act are set out in his judgment.15 As pointed out by counsel for the defendants, the 1984 Act does not deal with English limitation provisions, but rather with foreign limitation provisions. It simply creates a new (statutory) rule of English private international law to the effect that, if the lex causae is a foreign law, an English court must, in proceedings before it, apply the limitation provisions of that foreign law to the matter, irrespective of whether those provisions are classified by the foreign law as procedural or substantive in nature. It is only where the application of this rule conflicts with English public policy that the limitation provisions of the English law as the lex fori will be applied.
As is pointed out by Christopher Forsyth, commenting on the judgment of the court below – 16
‘The proceedings in the current case were before a South African High Court. There were no current “proceedings in a court in England and Wales” and no English court had been directed by “the rules of private international law applicable by any such court” to apply “the law of any other country”. So the provisions of the Act are simply not engaged and there is no call for the court to apply the “law of that other country relating to limitation”. The 1984 Act was simply a red herring.’17
It follows that I am in agreement with the conclusion of the court below that the prescription question in the present case has to be approached on the basis that prescription is, in terms of the lex fori, a matter of substance, and in terms of the lex causae, a matter of procedure. For reasons which will become clear, I do not, however, agree with Mynhardt J’s acceptance of the submission of defendants’ counsel that the Foreign Limitation Periods Act 1984 is ‘irrelevant’ to the present two matters.
In view of the above, we are now faced with the problem of the ‘gap’ in the choice of law rules: under South African law (the lex fori), prescription is a matter of substance, not procedure, and therefore the South African law relating to prescription does not apply; under English law (the lex causae), the s 24 limitation provision is procedural in nature and so the lex causae also does not apply. Moreover, generally speaking, a South African court will not apply foreign rules of procedure in a matter to be adjudicated upon by it. This was precisely the problem which arose in Laconian Maritime Enterprises Ltd v Agromar Lineas Ltd.18In that case, Booysen J described the problem of the ‘gap’ as follows:19
‘…It would mean if these general rules were to apply that the lex fori being substantive would not apply but that the lex causae being procedural would also not apply.
This is indeed the last problem mentioned in Dicey and Morris The Conflict of Laws 10th ed at 1181.20 The learned authors say:
“If the statute of the lex causae is procedural and that of the lex fori substantive, strict logic might suggest that neither applies, so that the claim remains perpetually enforceable. A notorious decision of the German Supreme Court once actually reached this absurd result. But writers have suggested various ways of escape from this dilemma, and it seems probable that an English Court, in the unlikely event of its being confronted by such a situation, would apply one statue or the other.”
The German case is not available to me but Forsyth in his article in the SALJ21 says of this case:
“There is a notorious decision of the Reichsgericht of 1881, upholding a claim on a Tennessee Bill of Exchange. The Bill was prescribed under both German law (the lex fori) and Tennessee law (the lex causae) but the German provision was classified as substantive, while the Tennessee rule was procedural.”
I certainly have no wish to join the German Court in its notoriety although strict logic might so advise.’
In the Laconian case, the South African court was approached for an order that an arbitration award handed down in London be made an order of court in terms of the recognition and enforcement of Foreign Arbitral Awards Act 40 of 1977. The respondent raised (inter alia) the defence of prescription. Booysen J held that the proper law of the underlying contract was English law and that, accordingly, the proper law of the arbitration award was also English law. The limitation rules of the English law (lex causae) were classified as procedural and therefore did not apply. On the other hand, the rules of prescription in South African law (the lex fori) are classified as substantive and thus also did not apply. On the face of it, therefore, there were no prescription rules at all applicable to this arbitration award. Faced with this dilemma, Booysen J opted to apply the lex fori and held that the provisions of the Prescription Act 68 of 1969 should be applied, reasoning as follows:22
‘…it seems to me that in such an event I should apply my own law on the basis that, if I am not enjoined by my own law to apply foreign law, I am enjoined by my oath to apply my country’s law. I am, no doubt, influenced to some extent by Ehrenzweig’s scepticism and preference for the residual lex fori approach where no formulated or non-formulated rule exists23 which seems to me to accord with good sense.’
It is important to note that, in the Laconian case, the arbitration award was not prescribed under either English or South African law. Booysen J’s application of the South African law as lex fori, in preference to the English as lex causae, thus made no difference to the outcome of the case as the defence of prescription would have failed in any event. That is of course, not the position in the matters presently before this court.
Booysen J’s ‘residual lex fori’ approach in the Laconian case was followed in Minister of Transport, Transkei v Abdul.24So too, in the court below, Mynhardt J, faced with the problem of the ‘gap’, adopted thisapproach in coming to the conclusion that the provisions of the South African Prescription Act should be applied rather than the English law relating to limitation periods. For the reasons that follow, I do not agree with this conclusion.
As suggested by Schutz J in the Laurens case, the resolution of the dilemma of the ‘gap’ involves making a choice between two competing legal systems. At this third stage of the via media approach, the court must take into account policy considerations in determining which legal system has the closest and the most real connection with the legal dispute before it. As pointed out by Sieg Eiselen –25
‘The conflicts process is aimed at serving individual justice, equity or convenience by selecting the appropriate legal system to determine issues with an international character. The process ought to be neutral in the sense that it should display no bias in favour of the lex fori.’
The selection of the appropriate legal system must, of course, be sensitive to considerations of international harmony or uniformity of decisions, as well as the policies underlying the relevant legal rule. It is in this regard that I take issue with the court a quo’s conclusion that the English Foreign Limitation Periods Act 1984 is ‘irrelevant to the present two matters’. The 1984 Act, based on recommendations of the English Law Commission,26 was a response to searching criticism of the English common law characterisation of statutes of limitation barring the remedy as procedural. These criticisms are summarised by JP McClean as follows:27
‘The notion that foreign statutes of limitation are characterised as procedural if they merely bar the remedy is open to a number of criticisms. (1) The distinction between right and remedy is an unreal one, for “a right for which the legal remedy is barred is not much of a right.” (2) The rule may bar a claim which is still alive in the country where it arose, eg if the English period of limitation is shorter than the foreign one. (3) Conversely, the rule may work hardship on a debtor in the opposite situation if, in reliance on the foreign law, he has destroyed his receipts. (4) The rule may encourage forum shopping. (5) It would be no more difficult for an English court to apply a foreign statute of limitations than any other rule of foreign law. Not to do so in a situation where the foreign statute of limitations, unlike most other foreign rules of procedure, would determine the outcome of the litigation seems perverse.’
In my view, all these criticisms hold good in a situation such as the present, where the lex fori is South African law, but the lex causae is a foreign system of law. Considerations of international uniformity of decisions suggest that claims which are alive and enforceable in terms of the law of the country under which such claims arose should as a general rule also be enforceable in South Africa. By virtue of the abovementioned clauses 2.1 and 2.2 of the General Undertaking, English law is the system governing the creation, operation, interpretation and enforcement of the rights of the parties. It seems logical that English law is also the legal system which has the closest and most real connection with the question of the extinction or non-enforceability of such rights because of the expiry of a prescription/limitation period, irrespective of whether the particular prescription/limitation statute is characterised as being merely remedy-barring or extinctive. This is particularly so where, under the lex causae, the traditional distinction between extinctive and remedy-barring statutes of limitation has become a largely artificial one. The artificiality of this distinction in English law is cogently illustrated by Forsyth as follows:28
‘In an entirely English case, where both substance and procedure are undeniably governed by English law, the question will never arise whether any part of the Limitation Act 1980 is procedural or substantive. The Act will simply be applied according to its terms and there will be no need to draw any such distinction. It is only when the law of another country falls to be taken into account, that any question of the characterisation of limitation rules being procedural or substantive may arise. But in these circumstances, the 1984 Act provides that, in general, the foreign law in regard to limitation applies. Hence since the 1984 Act this question of the characterisation of prescription rules has not, to the best of my knowledge, been before an English court.’
It is also worth noting that, on an international level, prescription rules are increasingly characterised as substantive for the purposes of private international law. So, for example, the Rome Convention on the Law Applicable to Contractual Obligations (1980), which applies in the European Union countries, follows such characterisation. The provisions of the Rome Convention were given the force of law in the United Kingdom in terms of the Contracts (Applicable Law) Act 1990. There has also in recent years been a distinct movement in the common law countries away from the traditional English common law ‘dual’ classification of prescription/limitation rules to a substantive characterisation of such rules.29
Counsel for the defendants submitted that the lex fori should govern the issue of prescription because the provisional sentence proceedings in effect amounted to part of the process of execution of the foreign judgments in South Africa. Thus, as execution is a matter of procedure, it is – so counsel contended – the lex fori which now has the closest and most real connection with the question whether the claims which Lloyd’s seeks to enforce in South Africa are still ‘alive’. In my view, however, the basis of counsel’s contention is this regard is incorrect. The provisional sentence proceedings against the defendants in this case are, like any quest for judgment, obviously a step towards eventual execution, but cannot be regarded as part of the processof execution. As indicated above, English law is the system governing, inter alia, the enforcement of the rights of the parties by virtue of clauses 2.1 and 2.2 of the General Undertaking. The provisional sentence proceedings against each defendant are simply a means of obtaining an enforceable judgment against such defendant, albeit a second one on the basis of the English judgment already obtained.
It follows that, in my view, considerations of policy, international harmony of decisions, justice and convenience require the dilemma of the ‘gap’ in the present case to be resolved by dealing with the issue of prescription in terms of the relevant limitation provisions of the lex causae, the English law. This means that, because the provisional sentence summonses were served on the defendants less than 6 years after the default judgments were obtained in the English court, as contemplated by s 24 of the English Limitation Act 1980, the claims on the judgments have not become prescribed and the defence of prescription must fail. This conclusion renders it unnecessary for me to deal with the question whether the English default judgments against the defendants are ‘judgment debts’ for the purposes of s 11(a)(ii)of the Act.
In the recent Cape High Court case of Society of Lloyd’s v Romahn,30Van Zyl J came to the same conclusion on the prescription issue. He purported to do so by adopting the via media approach followed by Schutz J in the Laurens case but in reality proceeded to establish a new rule of private international law. In dealing with the problem of the ‘gap’, Van Zyl J stated the following:31
‘[85] In the present matter the parties agreed that their rights and obligations would be governed by and construed in accordance with English law. This means that they also agreed that the rule, requiring procedural matters to be dealt with by the lex fori, would apply. What they did not agree upon, in that they clearly could not have applied their minds to it, was that, in terms of South African prescription law, their respective claims would be extinguished by the effluxion of time. As mentioned previously, the creators of the English rule were probably blissfully unaware of the fact that a debt, which was time-barred in English limitation law, would be extinguished should the lex fori be applied. It can scarcely be imputed to the parties that they intended such a result.
[86] This brings me to the question whether, in such circumstances, the rule might have been qualified to the extent that, if a matter of procedure in the lex causae should be a substantive matter in the lex fori, it would revert to the lex causae. In my view justice, fairness, reasonableness and policy considerations dictate that this question be answered positively.’
The ‘qualification’ suggested by the learned judge amounts in effect to the creation of a new and somewhat inflexible rule of private international law. In my view, when confronted with the problem of the ‘gap’, the more flexible approach of applying the law of the legal system which, in the circumstances of the particular case, has the closest and most real connection to the question of extinction or enforceability is the more appropriate, although in practice the result in most cases is likely to be the same. Insofar as Van Zyl J emphasises the need to take cognisance of the nature, scope and purpose of the foreign rule in its appropriate legal context and with regard to relevant policy considerations, as well as the desirability of avoiding ‘artificial attempts to fit the issue into a “prefabricated” or preconceived form or structure’,32 his judgment takes a commendable step towards the development and application of the via media approach.
