The High Court has today handed down judgment in BG Atlantic Inc v Hay Hill Investments Ltd [2026] EWHC 226 (KB), concerning the scope of the fraud and public policy defences to enforcement of a foreign judgment.
The claimant, BG Atlantic, had entered into a loan agreement with the defendant, Hay Hill, in 2018. It subsequently commenced proceedings in the contractually chosen forum, New York, to enforce the loan, and obtained judgment for over $1 million. Upon BG Atlantic seeking to enforce the New York Judgment in England, Hay Hill made wide ranging allegations of fraud and impropriety relating to the source of the monies which were later loaned to it.
Jonathan Moffett KC, sitting as a Deputy High Court Judge, granted BG Atlantic’s application for summary judgment on the basis that Hay Hill had no real prospect of successfully defending the claim as a matter of law.
He held (at [103]-[113]) that while the full scope of the fraud defence was not exhaustively defined by existing case law, it is a “carefully delineated exception” to the principle that the English courts will give effect to a foreign judgment, and the consistent elements across the authorities were that (1) the fraud must be practised on the foreign court; (2) it may consist of either advancing a fraudulent case or dishonestly interfering with the court’s process; (3) the fraud must be conscious and deliberate; and (4) the fraud must be one which has an operative effect on the foreign court. Hay Hill’s pleaded allegations did not come within these requirements, and while in principle the defence might apply to fraudulent non-disclosure, this would require a duty of disclosure in the foreign court which the claimant deliberately failed to comply with. No such case had been articulated by Hay Hill.
As to public policy, the Deputy Judge noted that the authorities in the field are limited. However, he accepted (at [119]) that the defence relates to the public policy implications of enforcing the foreign judgment itself, rather than the underlying transaction. Further, it was not permissible to simply ‘re-package’ a failed fraud defence using public policy (at [124]). Even if this conclusion was incorrect, the illegality alleged was “remote” (at [126]) and the fact that a loan is alleged to have been made using money obtained from a historic wrongdoing against a third party was not sufficient to give rise to a public policy defence, not least as there was “real doubt” that the English courts would refuse to enforce even the underlying loan based upon such allegations (at [127]-[135]). Refusing to enforce the New York Judgment would give rise to an unjustified windfall for the defendant, and the defendant did not have a realistic prospect of showing that the public policy in enforcing judgments would be outweighed at trial by the matters it alleged (at [137]).
Finally, the Deputy Judge accepted that, had he not granted summary judgment, the public policy defence would have amounted to an abuse of process, in that Hay Hill could and should have raised the allegations it now made in the New York courts, but chose not to do so (at [142]-[143]).
Matthew Hoyle acted (as sole counsel) for the claimant, BG Atlantic, instructed by David Archer and Jennifer Cassie of Archer, Evrard and Sigurdsson.
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