Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MASTER FONTAINE (Sitting in Retirement)
Between:
Roman Frenkel | Claimant |
- and - | |
Arkadiy Lyampert | Defendant |
Alex Barden KC (instructed by Schofield Sweeney LLP) for the Claimant
Christopher Howitt (instructed by Clarks Legal LLP) for the Defendant
Hearing date: 24 September 2025
APPROVED JUDGMENT
Senior Master Fontaine:
This was the hearing of a summary judgment application by the Claimant seeking enforcement in England of a Californian judgment made against the Defendant. The application is supported by the first and second witness statements of Leo Jones-Rowe, the Claimant’s solicitor, dated 2 and 7 January 2025 (“Jones-Rowe 1 and Jones-Rowe 2,”) and the first and second witness statements of John Fowler, the Claimant’s Californian attorney in the Californian proceedings dated 6 January 2025 and 15 September 2025 (“Fowler 1 and Fowler 2”). The application is responded to by the first witness statement of the Defendant dated 2 September 2025.
The Factual and Procedural Background
I summarise the facts from the Claim Form, Particulars of Claim (“the POC”), Defence and Reply, and the witness statements and exhibits. The Claimant seeks enforcement in England of a judgment of the Superior Court of California dated 22 February 2017 (“the 2017 California Judgment”), originally in the sum of US$2,263,376.67. That figure was made up of the sum of US$2,042,376.67 in favour of the Claimant (described in the California judgment as Plaintiff and Cross-Defendant) and the sum of $221,000 ordered to be paid to Design Creator Inc (“DCI”) referred to in the Californian judgment as a Consolidated Plaintiff. Those figures excluded costs, which were determined by order of 5 July 2017 in the sum of $184,300.11 in favour of the Claimant, DCI having waived entitlement to costs.
In 2021 to 2023 the parties were involved in two sets of proceedings in the English courts: detailed assessment proceedings before the Senior Courts Costs Office (“the SCCO proceedings”) and Supreme Court proceedings concerning the beneficial ownership of shares in an English company, LA Micro Group (UK) Ltd (“the SC proceedings”. In the SC proceedings HHJ Jarman QC (as he then was) made interim payment costs orders against the Claimant in the sum of £110,000 on 4 March 2021 and £200,000 on 29 June 2022. In respect of both interim payment orders HHJ Jarman QC made orders confirming that the Claimant was “entitled to discharge any sums payable by him to [the Defendant] by way of set off against [ the sum owed by the Claimant to the Defendant under the 2017 California Judgment]”. The amounts set off in respect of each of the interim payment orders were $153,714 and $240,540 respectively using the then current exchange rate.
On 15 May 2024 DCI filed an application for renewal of the 2017 California Judgment, which was renewed to take account of accrued interest and further costs in the total sum of $US6,070,710.58, which included sums owing to both Mr Frenkel and DCI (“the First Renewal Order”). On 23 May 2024 DCI filed a Motion to Correct a Clerical Error seeking the amount to be corrected to the lower sum of US$4,278,278.72. Following a hearing attended by both DCI and the Defendant the Motion was granted and the corrected Renewal Order (“the Second Renewal Order”) was made on 18 September 2024 in that sum, to be treated as effective from the date of the First Renewal Order namely 15 May 2024. The Defendant has not appealed against the Second Renewal Order and the undisputed evidence is that he is out of time to do so. The Defendant applied to stay interest running on that sum, but the evidence is that this was rejected. Paragraph 10 of the POC calculates the sum owing at that date to the Claimant, taking into account the set offs ordered by HHJ Jarman QC, to be US$ 3,438,069, although that figure was said by the Claimant’s counsel at the hearing and in his skeleton argument to be incorrect, and that the correct figure was $3,884,024.72. Interest continues to accrue from 15 May 2024 on a daily basis at the rate of 10% pa.
In the SCCO proceedings Tipples J made two costs orders against the Claimant in 2017 for costs to be assessed in favour of the Defendant (“the Tipples Costs Order”) Enforcement of that order was stayed until 9 January 2025 to permit the Claimant to seek enforcement of the 2017 Californian Judgment. The costs due under the Tipples Costs Order were assessed by Costs Judge Rowley’s order of 9 October 2024 in the sum of £560,138.29 (including the costs of the assessment). Under the Costs Judge’s order, payment under the Tipples Costs Order was stayed until 9 January 2025 (“the Costs Stay”). This was for the purposes of allowing the Claimant to seek enforcement of the 2017 California Judgment in these proceedings and effect the set off.
Paragraph 3 of that order also transferred the balance of the assessment proceedings into these proceedings, with any further application in relation to the Costs Stay to be made to this Court in these proceedings.
A set off of the costs assessed pursuant to the Tipples Costs Order against the 2017 California judgment was the subject of an agreement between the parties and a draft consent order was signed to that effect in January 2023. However, Chancery Master Kaye declined to make that Order, doubting the Court’s jurisdiction to order such a set-off where the debt under the California Judgment had not been the subject of an order for enforcement in England. That created the need for the issue of these proceedings to enforce the 2017 California Judgment in England, thus creating an English judgment that could be set off against the Tipples Costs Order. These proceedings were issued on 4 October 2024, and the summary judgment application was made on 7 January 2025
The Relevant law
There is no dispute between the parties as to the law. The relevant principles are set out in Rule 46 of Dicey, Morrisand Collins onthe Conflicts of Laws (16th edn.) (“Dicey”). Dicey at 14-011 explains that there are no relevant treaty arrangements with the USA. Accordingly the statutory routes under the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933 and CPR 74 do not apply. Rather, enforcement is at common law, based on the binding effect of the foreign judgment. The English Court enters its own judgment based on the binding determination of the foreign court, which creates an enforceable debt in this jurisdiction. Dicey 14R-024 sets out the relevant position:
“(1) Subject to the Exceptions hereinafter mentioned and to Rule 63 (international conventions), a foreign judgment in personam given by the court of a foreign country with jurisdiction to give that judgment in accordance with the principles set out in Rules 47 and 48, and which is not impeachable under any of Rules 52 to 55, may be enforced by a claim or counterclaim for the amount due under it if the judgment is
(a) for a debt, or definite sum of money (not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty); and
(b) final and conclusive
but not otherwise.
Provided that a foreign judgment may be final and conclusive, though it is subject to an appeal, and though an appeal against it is actually pending in the foreign country where it was given.”
Rule 14-25 explains that explains that the common course in respect of such enforcement claims where there is no dispute about the validity of the underlying foreign judgment is to bring a claim in the English court for a judgment for the sum due under the foreign judgment, where there is no method of reciprocal enforcement with the country where the judgment was made.. At 14-026 of Dicey it is stated:
“For a claim to be brought to enforce a foreign judgment, the judgment must be for a definite sum of money, which expression includes a final order for costs, e.g. in adivorce suit. It must order X, the defendant in the English action, to pay to A, the claimant, a definite and actually ascertained sum of money; but if a mere arithmetical calculation is required for the ascertainment of the sum it will be treated as being ascertained.”
Summary of the Parties’ Submissions
The Claimant submits that Defendant’s evidence confirms that the requirements of Dicey in the passage above are satisfied| in respect of the 2017 California Judgment, and that is also confirmed at Paragraph 4 of the Defendant’s skeleton argument. There is no dispute as to this court’s jurisdiction. Although Mr Lyampert makes reference in his witness statement to the California Judgment being more than 6 years old, that is irrelevant because the California Judgment, which has a 10-year period of validity, has in any event been renewed, and has also been acknowledged by the Defendant within the meaning of s.29 of the Limitation Act 1980, including by the set-offs and in his witness statement. The Defendant does not plead any limitation defence.
The Claimant summarises the defences put forward in the Defence as:
The Defence at paragraph 14 complains that the amount, but not the fact, of the Second Renewal Order is incorrect, and asserts without providing the Motion itself that the Defendant had filed a Motion objecting to the inclusion in that Renewal Order of the sums which had already been set off, and interest thereon.
The Defendant’s witness statement at paragraphs 23-32 complains about the timing of the set offs of the Jarman Costs Orders and also appears to assert at paragraph 32 that they should have been set off against principal rather than interest. He purports to recalculate the figures that would have been owing (at paragraph 28), and the figure that will be owing once the Tipples Costs Order is set off (at paragraph 35).
The Claimant says that the following is a complete answer to these points:
They are objections to the Second Renewal Order, but only the quantum, and are not objections to the 2017 California Judgment, but it is the 2017 California Judgment itself that is being enforced.
The objections have either not been raised in California, or have been rejected by the California Court, for clear and obvious reasons.
They go only to the ultimate remaining quantum of the California Judgment, but that amount even on the Defendant’s own view exceeds the amount of the Tipples Costs Orders, which is all that matters.
It is the 2017 California Judgment that establishes the Defendant’s liability and statutory interest accrues on that judgment. It is that judgment that is being enforced, not the Second Renewal Order, see Particulars of Claim paragraphs 4 and 13-18. The Second Renewal Order merely compounds the interest on the 2017 California Judgment and extends its period of validity.
Consistently with that, the Defendant’s motion in respect of the Second Renewal Order did not challenge either the fact or the amount of the Second Renewal Order but rather sought to stop further interest running on that amount: Fowler 2 paragraphs 18-19 and the Motion at lines 10-26. That Motion was rejected because the California Court does not have the power to stop statutory interest: paragraphs 18-19 of Fowler 2 and the Judge’s order on the Motion.
Although the Defendant is challenging the rejection of his Motion, that does not affect the validity of the court’s decision on the Motion (or the Second Renewal Order or the 2017 California Judgment) from being final as a matter of California law: paragraph 19 Fowler 2. In any event a successful appeal would not be relevant to these proceedings because. even under the Defendant’s own calculations, he owes the Claimant far more than the amount of the Tipples Costs Orders.
the Claimant and DCI have filed Partial Satisfactions of Judgment, effective from the renewal date, in the amount of the Jarman Costs Orders, so the Defendant’s point about the set-offs has been dealt with and is taken into account in the sum which the Claimant puts forward for enforcement: Fowler 2 at paragraph 21(c).
Insofar as the Defendant may be suggesting that the Jarman Costs Orders should have been set off against the principal rather than the interest of the 2017 California Judgment, the California Court’s approach is correct as the statute is express in saying that payments are applicable to accrued interest first: Fowler 1 paragraph 10. In any event, that would be a matter for the California courts.
The Defendant disputes that the Second Renewal Order satisfies the criteria in Dicey, for the following reasons:
The Second Renewal Order purports to require the Defendant to pay a single composite sum of US $4,278,278.72, a sum which includes the separate
judgment debts to DCI ($221,000) and to the Claimant ($2,042,376.67) in the
2017 Judgment plus interest up to the date of renewal. Accordingly the Second Renewal Order does not order the Defendant to pay a definite sum.
The basis of the sum sought by the Claimant in the Claim Form, Particulars
of Claim and draft Order i.e., $3,438,609.has not been explained. Further the sum claimed does not appear in the Corrected Renewal Judgment and the Claimant has not provided any basis for his calculation in his statements of case or witness statements.
Different results are reached when making calculations on an apparently
identical basis in the English and Californian proceedings. The sum of $3,438,609at paragraph 10 of the Particulars of Claim is different from the much larger figure of $3,884,024.72 in the Claimant’s “Memorandum of Costs after Judgment” from the Californian proceedings. (I note that the Claimant’s Counsel stated at the hearing that the larger figure from the California proceedings is correct.)
The Second Renewal Order cannot reflect any liability from the Defendant to the Claimant, because it does not include the set offs for the Jarman Costs Orders which had already been applied at the time the Order was made
It is therefore submitted that the Second Renewal judgment is incapable of enforcement in England and Wales, and that the Claimant’s application, and claim must be dismissed; and that the Defendant is entitled to his costs.
Discussion
As both parties accept, an application such as this should be straightforward, and the Defendant accepts that it would be if the application were brought in respect of the 2017 California Judgment, in respect of which there is no dispute by the Defendant either as to his liability or the quantum, save that the Renewal Order has not been reduced by the amounts of the Jarman Costs orders, and includes the sum owing to DCI. Mr Fowler addresses the latter point at Fowler 2 paragraph 9, and that evidence is not challenged. In any event the Claimant has confirmed that he is not seeking to enforce the sums due to DCI, although on the basis of Mr Fowler’s evidence he would be entitled to do so. The Defendant also says that the position has changed because the Claimant is applying on the basis of the Second Renewal Order, where the figures are in dispute. I note that the arguments submitted on behalf of the Defendant are not addressed in the Defence or his witness statement, but that does not prevent the court from considering whether they would constitute a real prospect of success so as to defeat the application.
The Particulars of Claim base the proceedings on the 2017 California Judgment, reiterated in paragraph 3 of the Reply. It is clear from the evidence of Mr Fowler, and from the California Court documents that the First and Second Renewal Order are not stand alone judgments but serve to update the interest accruing, add it to the principal sum, and extend the limitation period for enforcement: see Fowler 1 at paragraphs7-9 and Fowler 2 at paragraphs 13-14. Both the 2017 California judgment and the Second Renewal Order identify the sum due by the Defendant as one amount due to both the Claimant and DCI in the sum of $2,485.786.87 in the 2017 California judgement and $4,278,278.72 in the Second Renewal Order. Fowler 2 explains this at paragraph 9, but this manner of expressing the amount due to both Claimants is not objected to by the Defendant in respect of the 2017 California Judgment. In any event, it meets the criteria explained by Dicey in that it is possible by an arithmetical calculation to identify what is owed to each party, both as to principal and interest.
Further, Mr Fowler’s evidence (Fowler 2 paragraphs 17-19) is that the Defendant’s Motion to challenge the Second Renewal Order did not challenge the calculation of principal or interest but only sought to stay the accrual of interest.
With regard to the point as to whether the Jarman Costs Orders have been set off against the 2017 California judgment, this is addressed in Fowler 2 paragraph 20 c ii. The Second Renewal Order corrected the First Renewal Order which had not included the set off of the Jarman Costs Order in favour of the Claimant. Both the Claimant and DCI have agreed in written filings with the court that such set offs will apply from 15 May 2024, (the date of the First Renewal Order) and that is confirmed by the text of the Second Renewal Order.
Apart from the quantum of the judgment debt owed to the Claimant, there is an issue of substance between the parties is whether the claim is to enforce the 2017 California judgment (as submitted by the Claimant and stated in the Particulars of Claim), or whether the Second Renewal Order supersedes the 2027 California Judgment and is not a final and conclusive judgment, on the basis that the sums identified in the POC as owing to the Claimant are those in the Second Renewal Order not the 2017 California Judgment, and include the set off of the sums ordered in the Jarman Costs Order, which were not applied to the 2017 California Judgment but only applied in the Second Renewal Order (as submitted by the Defendant).
The answer to this question must, in my judgment, depend upon how the Second Renewal Order is characterised in Californian law. The only evidence I have in relation to that issue is that of Mr Fowler, who is not independent, as his firm acted for the Claimant in the Californian proceedings. However, although these proceedings were served on 18 October 2024 and the application and Mr Fowler’s first witness statement are both dated 6 January 2025, the Defendant did not respond with evidence to the application until his witness statement dated 2 September 2025, and despite that length of time available to him to respond to the application he has not disputed Mr Fowler’s evidence as to the effect of Californian law with any evidence from either his own Californian lawyer or an independent expert on Californian law.
The Defendant in his evidence accepts the figures in the 2017 California Judgement: see paragraph 20 of his witness statement where he states:
“…. The 2017 Judgment as between the Claimant and DCI… included a total figure for the Judgment of $2,485,746.87. This figure was correct as a starting point although as I have explained in paragraph 13 above, the total amount attributable to the Claimant was $2,226,676.78.”
My understanding is that this description of the 2017 California Judgment is not in dispute.
The Defendant disputes that the correct figures have been used in both the First Renewal Order and the Second Renewal Order. It is not in dispute that the figures in the First Renewal Order (applied for by DCI) were incorrect, hence the application to correct them which led to the Second Renewal Order, which clearly supersedes the First Renewal Order. The Defendant claims that the Claimant took no steps to set off the costs due under the Jarman Costs Order against the 2017 judgment until 20 December 2024, even though, under the Jarman Costs Order he was to discharge those costs by 19 March 2021, but that the set offs were back dated to 4 March 2021 to give the impression that they had been taken into account in the Renewal Judgment, which he says was not the case.
However, although the Defendant opposes the application, at Paragraph 34 of his witness statement he refers to the sums under the Tipples Costs orders sought by the Claimant to be set off against the 2017 California judgment, he states
“The final amount will also need to be reduced to be determined in December 2025 to take account of the further third costs order made in my favour by the Senior Courts Costs Office in case numbers SC - BTP – 2023 and SC-2023-BTP- 001201 and SC-2023-BTP-00202 on 13 September 2024 and 9th October 2024.”
Thus, it appears that the Defendant accepts the claim and the application in principle, and objects only to the way the sum under the Second Renewal Order has been calculated – see Paragraph 35, where he contends that the correct figure for the 2017 California Judgment at 9 October 2024 was $975.71. That calculation appears to be dependent on an application lodged on his behalf to correct part of Costs Judge Rowley’s Order of 9 October 2024, not yet determined. The Defence at paragraph 10 makes the point that because the costs under the Jarman Costs Order were not set off against the 2017 Judgment until the Second Renewal Order was entered, interest on the 2017 California Judgment debt was not reduced by the amount of those costs and interest was thus wrongly applied in respect of the sums permitted to be set off. At Paragraph 14 it is said that the amount claimed under the Renewal Judgment wrongly included the sum due to DCI and costs ordered to DCI and accrued interest. I note that at paragraph 22 of his statement he says he attended the hearing for correction of the First Renewal Order which took place on 18 September 2024 (the date of the Second Renewal Order). He states that:
“The court made it clear that it was not willing to consider any arguments
that I had about the calculation of the Judgment applied for by DCI.”
The Defendant points out that the Court expressly recorded that:
“This Order does not constitute any judicial confirmation of the numbers reflected on the judgment. To the extent such rights otherwise existed at the time of the ruling, judgment debtors shall retain any pre-existing rights to challenge the underlying amounts due as provided by the California Code of Civil Procedure, including but not necessarily limited to, California Code of Civil Procedure Section 683.170 (a-c).”
I consider that the argument advanced by Counsel for the Defendant at the hearing that the Claimant is not entitled to set off the sums due under the Tipples Costs Order against the sums ordered in the Second Renewal Order is unrealistic given:
the unchallenged evidence in Fowler 1 at Paragraphs 7-9 and Fowler 2 at Paragraphs 9-19;
the wording of the Second Renewal Order where the figures making up the total are headed: “Renewal of money judgment”; and
the Defendant’s position in his Defence and evidence in which he challenges only the quantum of the Second Renewal Order; the fact that the quantum was not subject to judicial consideration is not a reason to regard it as somehow deficient. By comparison a default judgment in the courts of England & Wales is based on the figures provided by the judgment creditor, and that sum will be the amount of the judgment to be enforced unless there is successful application to set it aside. The Defendant has issued a Motion to challenge the quantum, but not to overturn the Second Renewal Order.
I also note that both the First and the Second Renewal Order were applied for by DCI. It would be very odd indeed if the effect of one creditor applying to renew the judgment so that accrued interest can be added and the limitation period extended could thus prevent another creditor from applying to enforce such the judgment sum as amended by such Renewal Order.
I note also that the Defendant’s position when the application to set off was made before Chancery Master Kaye, and when he was advised by English solicitors, was to agree to the set off which is now sought in these proceedings, to the extent that draft consent order was put before the court in the following terms:
“1. The security for costs provided by the Claimant for the costs of the First Defendant by way of the undertaking from the Claimant's former solicitor Blake Morgan LLP dated 16 February 2017 (“undertaking)” is replaced by part of the unpaid sums due to the Claimant by the First Defendant under the order of the Superior Court of the state of California dated 22 February 2017 (the “US order”);
2. All costs due from the claimant to the first defendant pursuant to the order of Miss Amanda Tipples QC dated 2 November 2017 shall be set off against part of the outstanding bones owed by the First Defendant to the Claimant under the US order;
3. All cost due from the Claimant to the First Defendant pursuant to the order of Miss Amanda Tipples QC dated 4 December 2017 shall be set off against part of the outstanding balance owed by the First Defendant to the Claimant under the US order;
4. The undertaking is hereby discharged. For the avoidance of doubt, the security paid pursuant to the order of Master Bowles dated 3 February 2017, and currently held by Blake Morgan LLP, can be released to the Claimant; and
5. No order for costs.
It is also clear from Mr Fowler’s statements that the amounts due under both the 2017 California Judgment and the Second Renewal Order are in dispute, partly for reasons of Californian law, and partly because Mr Fowler says at Paragraph 11, that the Defendant has ignored the amount of allowed costs in his calculation. Mr Fowler also provides evidence that the Defendant did not appeal the Second Renewal Order but only sought to stop the accrual of interest on the judgment, which was unsuccessful.
At paragraphs 20 and 21 Mr Fowler set out his calculation of the amount due under the Second Renewal Order, and that the Claimant has filed two partial satisfactions of judgment in respect of the ‘Jarman Costs Order, which was not included in the 2017 California Judgment. Mr Fowler calculates the amount due to the Claimant on the date of the Tipples Costs order was $3,844,024.72. and as at 24 September 2025 (the date of the hearing) is $4,367,433.98.
I am not in a position to determine what the current figure due is following the Second Renewal Order which would be a matter of Californian law, namely how interest is applied, and how accrued interest is allowed to be added to the capital sum, matters that are addressed in Mr Fowler’s second witness statement. That dispute about the current amount due from the Defendant to the Claimant is a matter to be settled by the California Court, in the absence of agreement between the parties. However, the amount due is clearly capable of determination “by a mere arithmetical calculation” as stated in Dicey at 14-026, as demonstrated by Mr Fowler’s evidence (see paragraph 29 above) but that arithmetical calculation should be carried out according to Californian law principles.
I have concluded that because that dispute on quantum has not been resolved by agreement or by the California Court, I should not make an order permitting the Claimant to enforce the entire sum due to the Claimant under the Second Renewal Order. The amount of the costs due under the Tipples Costs Order has been assessed by Costs Judge Rowley’s Order of 9 October 2024 in the sum of £560,138.29 (including the costs of the assessment). Interest is due on those sums to the date of judgment in this court. Even if the Defendant’s calculation of the amount of the debt due under the Second Renewal Order in the sum of $975,000 is correct, (which seems unlikely in the face of the evidence of Mr Fowler on the rate of interest and how interest is applied to the principal, which has not been disputed), there is clearly a more than sufficient undisputed sum against which the Claimant should be permitted to set off against the debt due to him by the Defendant.
Accordingly, the Claimant’s application is successful, limited as explained above. My preliminary view on the costs of the application and the action is that there are no grounds on which to make a different order to the general order in CPR 44.2 (2), but if either party wishes to make submissions on costs at the hand down of judgment they may of course do so.