Lloyd's Maritime and Commercial Law Quarterly
FOREIGN CURRENCY JUDGMENTS
D. G. Powles
LL.M., Barrister, Lecturer in Law, U.W.I.S.T.
Less than 20 years ago the House of Lords in Re United Railways of Havanna and Regla Warehouses Ltd.1 clearly laid down that an English court could only give judgment in sterling, and that in a case where the amount claimed was expressed in a foreign currency this amount had to be converted into sterling at the date when the claim arose, not at the date judgment was given. In contrast, the most recent edition of The Supreme Court Practice states,2 “The English court has power to give judgment for a sum of money expressed in a foreign currency”.
This complete reversal has not been achieved without numerous steps by the judiciary, some bold, some cautious, and the exploration of several paths of reasoning. The motivation has been to bring the law into line with the commercial realities of inflation and floating currencies. Under the rule in the Havanna case, if X, in country Y, contracts with Z, in England, he will only be able to pursue a remedy against Z in the English courts in sterling, even if the currency of the contract is that of country Y. As X would measure his loss in terms of country Y’s currency, it is clear that a devaluation of sterling between the date of Z’s breach and the conclusion of a successful remedy in the English courts by X will mean that, when the amount recovered is converted into units of country Y’s currency, Z will have recovered far less than his actual loss. It is tempting to suggest that prior to 1961 the stability of sterling as a currency belittled this problem, but the substantial body of case law existing prior to that date obviates the suggestion. Since the Havanna decision, however, the fluctuations in sterling have meant that far more people in Z’s position will have suffered substantial losses from the operation of the rule.
The old rule
The unwillingness of the English courts to give judgments in currency other than sterling is recorded as far back as the early 17th century3 and rumour dates its origins as being earlier still.4 It was clearly settled in the 1920s that claims for tortious damages5 and contractual damages6 could only be brought in sterling, and that the date of conversion from a foreign currency was the date of the commission of the tort or the breach of contract. The Havanna case settled the matter in relation to debts and confirmed the ancient authorities which regarded a claim for a debt in a foreign currency as a claim for damages.
Several of the reasons for the rule reflect conditions of communication and economics at the time the rule was formulated. It has been pointed out that if a judgment were to be expressed in a foreign currency,
“… when the plaintiff has his judgment (in this case in Flemish coin) he cannot have execution by such a name; for the sherriff cannot know how to levy the money in Flemish”.7
1 Reported in the House of Lords as Tomkinson v. First Pennsylvania Banking & Trust Co. [1961] A.C. 1007.
2 Paragraph 42/1/3A.
3 Rastell v. Draper (1605) Yelv. 80; Ward v. Kidswin (1662) Latch 77.
4 Cf. the judgment of Lawton, J., in Schorsch Meier v. Hennin [1975] 1 All E.R. 152, at p. 158.
5 Owners of Steamship Celia v. Owners of Steamship Volturno; The Volturno [1921] 2 A.C. 544.
6 Di Ferdinando v. Simon, Smits & Co. Ltd. [1920] 3 K.B. 409.
7 Rastell v. Draper, supra at p. 81.
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