PRIL Text Chapter 6 PDF

Foreign Judgments 205
6
Foreign
Judgments
INTRODUCTION
A question that frequently arises in private international law concerns
whether a judgment given in a foreign country may be recognised and
enforced in the forum. In the absence of appropriate international
agreements and corresponding incorporating legislation,
1
the theory of
territorial sovereignty forbids any direct operation of judgments rendered
in a foreign state.
2
Nonetheless, pursuant to the fundamental objective of
furthering the ends of justice, common law countries have, for well over
200 years, permitted the recognition and enforcement of foreign judgments
that satisfied certain conditions.
3
Examination of these conditions is of
utmost importance to the practical effect of the foreign judgment but before
their consideration several preliminary points must be made.
First, recognition and enforcement are not synonymous. Recognition
alone may be sought when, for example, a successful foreign defendant
wants to stop the plaintiff from trying the same cause of action again in a
Caribbean forum. In this type of case, the foreign judgment is raised as a
defence, a shield, or a kind of estoppel that prevents the plaintiff from
pursuing proceedings in the forum. No question of enforcement arises. By
contrast, enforcement of a judgment necessarily implies its recognition, as
where the Caribbean forum authorises the successful foreign plaintiff to
take the necessary steps to satisfy the judgment debt out of local assets of
206 ELEMENTS OF PRIVATE INTERNATIONAL LAW
the defendant. In these circumstances the foreign judgment is being used
as a sword.
Secondly, occasionally where the foreign judgment is being used as a
shield, and almost invariably where it is being wielded as a sword, the law
seeks to further the ends of justice by protecting rights acquired under
foreign law where it is just to do so. The actual mechanism used for such
protection has been the subject of debate. Essentially, the choice has been
seen as being between requiring the foreign judgment creditor to bring a
fresh action in the Caribbean forum, as contrasted with finding a more
direct way of enforcing the foreign award.
Thirdly, although there is some overlap, the law maintains an important
distinction between foreign personal judgments, and other foreign
judgments. A foreign personal judgment is a judgment or order given or
made by a court in civil proceedings, or a judgment or order given or made
by a court in criminal proceedings for the payment of a sum of money in
respect of compensation or damages to an injured party.
4
This judgment in
personam creates an obligation binding upon the persons to the litigation,
and is traditionally contrasted with a judgment in rem, which normally
has the effect of creating status that is binding upon third parties. The
foreign personal judgment determines a claim based upon the law of non-
familial obligations and will normally be for a sum of money or injunctive
relief. It does not include a judgment given in connection with a matrimonial
matter, administration of estates of deceased persons, bankruptcy, winding
up of companies, lunacy or guardianship of infants, or admiralty actions.
This chapter is primarily concerned with the rules relating to the
recognition and enforcement of foreign personal judgments. The treatment
of foreign judgments of a specialised nature is dealt with as appropriate in
other chapters, and foreign matrimonial decrees are considered elsewhere.
5
Fourthly, foreign judgments may be entitled to recognition and
enforcement under one of five distinctive legal regimes. The first and
historically most important is the common law. Common law rules are,
potentially, applicable to all foreign judgments, whether given in another
Caribbean country, Commonwealth countries, United States, Europe, or
elsewhere. Enforcement at common law may proceed even in the presence
of a statutory regime on enforcement of foreign judgments, or if that regime
does not apply to the foreign judgment.
6
Recognition and enforcement at
common law involves bringing an ordinary action in a Caribbean court,
pleading and proving the foreign judgment, and seeking entry in the
Caribbean court of a judgment similar to that given in the foreign forum.
Proceeding at common law is assisted by the rules of civil procedure that
enable a claimant to apply for summary judgment under Rules of the
Supreme Court Order 14, or its equivalent, on the basis of the foreign
judgment.
The other four regimes are statutory or treaty-based and allow
application to a Caribbean court for an order that a foreign judgment be
registered for enforcement. There are no special statutory rules governing
mere recognition. With a few modifications, the first two legislative
frameworks are virtual codifications of the common law and the distinction
between them lies mainly in the nature of the relationship between the
Caribbean forum and the foreign country in which the judgment was given.
The first statutory regime is based upon the Administration of Justice Act
1920 of the United Kingdom.
7
It applies to judgments given in the United
Kingdom and to judgments given in other Commonwealth countries to
which the statute has been specially extended for this purpose. The second
statutory scheme reflects the Foreign Judgments (Reciprocal Enforcement)
Act 1933 of the United Kingdom
8
and governs recognition and enforcement
of judgments rendered in any foreign country to which the statute has
been extended. The third scheme applies to enforcement in Member states
of the Caribbean Community by virtue of the recent establishment of the
Caribbean Court of Justice.
9
The fourth statutory regime is applicable to
enforcement in the Member States of the Organisation of Eastern Caribbean
States in relation to judgments given by the Supreme Court of Eastern
Caribbean States.
10
The fifth and final preliminary point to be made concerns the non-
merger of the original cause of action with the enforcement action. In the
interest of bringing finality to litigation there is a rule in purely domestic
litigation debarring a plaintiff who obtains judgment against a defendant
from again litigating that cause of action.
11
Considerations of double
jeopardy could also arise. This rule does not apply in the case of foreign
judgments. At common law, a foreign court is not regarded as a court of
record and it therefore follows that there is no merger of the foreign and
forum actions even though based upon the same cause.
Cogent criticism
12
led to the reversal of the common law by legislation
in England,
13
but not, as a general rule, in the Caribbean.
14
Accordingly, a
plaintiff who was successful in a foreign court normally still has the choice
of either litigating in the Caribbean based on the foreign judgment, or
bringing an action in the Caribbean against the defendant based on the
original cause of action. However, as we shall see, under some of the
legislative arrangements for enforcement, a judgment that is capable of
being registered cannot be enforced by other means.
PHILOSOPHICAL BASIS FOR RECOGNITION AND
ENFORCEMENT
There is widespread acknowledgment that the society of nations will work
better if some foreign judgments are taken to create rights that are recognised
and can be directly enforced in countries where the defendant or his assets
are to be found.
15
However, consensus on practical convenience, by itself,
does nothing to explain the philosophical basis for such recognition and
enforcement, and the cases give virtually no guidance on this vital question.
Comity
In the eighteenth century justification was advanced based upon the idea
of comity
16
but it is now well accepted that comity is a rather vague concept
and is more appropriate to the relations between sovereigns.
17
Moreover,
common law recognition and enforcement was never based upon an
individual nation-to-nation relationship. Caribbean courts have never
thought it necessary to investigate what reciprocal rights of enforcement
are conceded by the foreign country, or to limit their exercise of jurisdiction
to that which they would recognise in others.
Obligation
Accordingly, the nineteenth century witnessed the eclipse of comity by
the doctrine of obligation. Obligation to fulfil the judgment of the foreign
court is related to sovereignty. From the earliest cases, a foreigner who
chose to create an establishment within the territory of a sovereign was
taken to owe, in exchange for personal safety and well-being, a personal
duty to respect the sovereigns laws as enforced by sovereigns courts. This
concept may be reasonably applied to a person who establishes a long-
term residence in the foreign country. In the case of transient passage,
however, allegiance may be too strong a fare. Tacit consent to abide by the
rights and obligations stemming from the local law administered in the
foreign court (including the local rules on private international law) appears
a more plausible basis.
18
In Schibsby v Westenholtz
19
Blackburn J identified the rationale of
obligation as the true principle on which the judgments of foreign tribunals
are enforced. Langer v International Transport and Earthmoving
20
confirmed
that the same principle applies in our courts in Bermuda.
21
Ends of Justice
The doctrine of obligation undoubtedly provides an acceptable theory to
explain the positivistic rationale underlying recognition and enforcement
of foreign judgments at common law. Whether it provides a sufficient
revelation of the underlying policy considerations is doubtful,
22
but there
may be little more to be gleaned than the basic judicial instinct to act in
furtherance the advancement of substantial justice. For over 150 years this
drive has been the unarticulated premise of the juridical activity in this
area.
23
Statutory Enforcement
Whilst the advancement of justice is not irrelevant in relation to enforcement
by statute, reciprocity is prioritised. It may be said that, from the vantage
point of the legislation, reciprocity is an attempt to speed up the furtherance
of justice by encouraging more and more countries to give due regard to
the judgments of the forum. Accordingly, the formal basis for enforcement
by registration is clearly the doctrine of reciprocity, apart, it must be said,
from United Kingdom judgments.
24
Caribbean courts recognise and enforce
the judgments of a foreign country only in circumstances where that foreign
country is prepared to offer like treatment or substantial reciprocity of
treatment to the judgments of the Caribbean country.
Normally the Short Title of the relevant statutory instrument contains
reference to reciprocity.
25
The operation of the doctrine is then secured by
the substantive provision allowing the Head of State, Head of Government,
or Minister, as the case may be, to direct that the enforcement provisions
of the Act extend to courts of a foreign country. Such direction may only
be given if the statutory benefits conferred by the Act upon judgments
given in the superior courts of a foreign country are substantially reciprocated
as respects the enforcement in that foreign country of judgments given in
the Supreme Court of the relevant Caribbean country.
Segregation of the theoretical underpinnings for the different
enforcement regimes was visible in Nebraska Dairies Inc. v Tropical Trading.
26
The case held that a Nebraska money judgment could not be enforced in
Barbados on the basis of reciprocity since the Governor General had not
acted in accordance with the Foreign and Commonwealth Judgments
(Reciprocal Enforcement) Act to certify the existence of reciprocity. In fact
the High Court doubted whether such reciprocity existed with any state
in the United States of America and it refused to follow Travers v Holley,
27
a
case that affirmed English recognition on the common law basis of
reciprocity of a divorce obtained in New South Wales.
28
There have been recent attempts in the Supreme Court of Canada to
explain which foreign judgments are to be recognised and enforced in terms
that borrow from, but modernise the language of, comity, obligation, and
reciprocity. Comity, as refashioned in the modern sense, is neither a matter
of absolute obligation nor mere courtesy and good will. Rather, it indicates
recognition which one nation allows within its territory to the legislative,
executive or judicial acts of another nation, having due regard both to
international duty and convenience, and to the rights of its own citizens or
of other persons who are under the protection of its laws.
29
The Court
recognised that greater comity is required in our modern era when
international transactions involve a constant flow of products, wealth and
people across the globe.
30
RECOGNITION AND CONSTITUTIONAL RIGHTS
Recognition of foreign judgments could give rise to the kinds of concerns
for constitutional rights considered in relation to the staying of local
proceedings.
31
It is not immediately clear that the enforcement, without
more, of a decision taken by a foreign tribunal on the civil rights and
obligations of citizens, comports easily with the constitutional guarantees
of access to the Supreme Court for determination of those civil rights and
obligations. The point is particularly telling in relation to enforcement by
registration, which, as we have seen, involves no plenary proceedings at all
in the forum.
RECOGNITION AND ENFORCEMENT AT COMMON LAW
At common law, enforcement of a foreign judgment required a fresh action
under which the foreign judgment creditor sued on the obligation created
by the judgment. The fresh action was governed by the ordinary rules of
civil procedure.
32
For example, the claimant could apply for judgment in
default where the defendant failed to acknowledge service or failed to file a
defence. Summary judgment may be obtained on the ground that the
defendant had no defence to the claim, or that the claimant has no real
prospect of succeeding on the claim or issue. Nevertheless, the requirement
to bring fresh proceedings meant that Caribbean rules for jurisdiction in
personam had to be satisfied.
33
Moreover, in order to gain the advantages of suit on the obligation of
the foreign judgment, the claimant had to establish three grounds. These
were that the foreign court had possessed jurisdiction over the parties; that
the judgment had been final and conclusive; and that the judgment had
been for a fixed sum not itself being a tax or penalty. With the establishment
of these three elements the claimant became entitled, prima facie, to have
the judgment enforced, but the defendant could then negate such
enforcement by producing evidence relating to one or more of the accepted
defences.
Jurisdiction of the Foreign Court
By far, the most important essential of the foreign judgment is that a court
of competent jurisdiction must have given it. This meant that the foreign
court must have possessed jurisdiction in the international sense, that is,
under Caribbean rules recognising the competence of that foreign court. It
is not enough that the foreign court was competent under its own domestic
rules. Nor is it sufficient that it had jurisdiction on a ground that the
Caribbean forum would itself regard as sufficient to establish its own
jurisdiction. What is required is jurisdiction under the Caribbean rules for
private international law for the recognition of foreign judgments. Nothing
else suffices.
These principles may be traced back to the classical cases of Buchanan
v Rucker
34
and Schibsby v Westenholz.
35
In Buchanan, the plaintiff brought
an action in England to enforce a judgment given by a court in Tobago. As
permitted under Tobagonian law, service of the writ had been effected on
the defendant simply by nailing a copy to the door of the courthouse. Lord
Ellenborough refused to enforce the judgment asking somewhat rhetorically:
Can the Island of Tobago pass a law to bind the rights of the whole world?
Would the World submit to such an assumed jurisdiction?
In Schibsby, the plaintiff sought to enforce in England a judgment
obtained in France. French jurisdiction had been founded upon service of
a writ issued against the defendants in France and served upon the Procureur
Imperial, who forwarded it to the French Consul in London, who then
served a copy upon the defendants resident and carrying on business in
London. In delivering the judgment of the court, Blackburn J accepted
that if foreign judgments were enforced on the basis of comity, then the
English courts could hardly decline to enforce a French judgment given
in circumstances in which the English court could itself have assumed
jurisdiction under RSC Order 11.
However, adherence to the doctrine of obligation necessarily meant
that anything that negatived the obligation to obey the foreign judgment
was a good defence to its enforcement. The obligation had to be based
upon the allegiance owed by the defendant to the foreign court and where
the defendant owned no such allegiance because he was not a subject or
resident there, and had not submitted to its jurisdiction, then there was
no duty to obey the judgment. In particular, mere service of the writ upon
the defendant in the forum could not create the obligation. Blackburn J
questioned: Can the empire of France pass a law to bind the whole world?
and thought that as in the case of a similar attempt by the Island of Britain,
the answer should be No.
36
Accordingly, enforcement was refused.
Residence
It is basic law that the residence of the individual or corporate defendant
within the territory of the foreign court is sufficient for jurisdiction.
37
What
was, until recently, controversial was whether mere presence falling short
of residence constituted a sufficient territorial connection between the
defendant and the country of original judgment. Recent developments
appear to have resolved the debate in the affirmative but it is useful to
examine separately the position of individuals and corporations.
Individuals
Although Caribbean dicta to the contrary may be identified,
38
there is
little doubt that an individual who is resident and physically present in
the foreign country at the time when proceedings are commenced is subject
to the jurisdiction of the courts of that country.
39
Where the individual
was present but not resident it was thought for many editions of learned
textbooks that jurisdiction was lacking.
40
But even in the nineteenth century
the temporary presence of an Englishman in Sweden was sufficient to confer
jurisdiction on the Swedish courts. This was because all persons within
any territorial dominion owe their allegiance to its sovereign power and
obedience to all its laws and the lawful jurisdiction of its courts.
41
For the
same reason the short visit to British Columbia by a husband to see his sick
wife was enough to ground the jurisdiction of the British Columbia courts.
42
After a thorough review of the cases the English Court of Appeal concluded
in Adams v Cape Industries Plc that:
The voluntary presence of an individual in a foreign country, whether permanent
or temporary and whether or not accompanied by residence, is sufficient to give
the courts of that country territorial jurisdiction over him under our rules of
private international law.
43
Whether jurisdiction exists in relation to a defendant who is resident
but not present in the foreign country at the commencement of the
proceedings there remains unclear.
44
One reading of the Privy Council
decision in Sirdar Gurdyal Singh v Rajah of Faridkote
45
suggests that there is
an irreducible minimum of physical presence at service of process.
46
But a
better explanation of the decision may be that the five-year absence of the
defendant from Faridkote had caused his residence there to lapse before
the action was brought. Under these circumstances, there could be no
question of the courts there having jurisdiction.
47
There is much cogency in the view that if presence is properly regarded
as sufficient to support jurisdiction, then residence, even if not accompanied
by immediate presence, should also be adequate.
48
Residence is a more
substantial connection than mere presence. Since the test of allegiance
would have already been satisfied, such jurisdiction ought to be respected
even if the foreign court has to authorise service ex juris on the defendant.
There is an obvious parallel here with the notion that once competent
always competent, so that it is irrelevant that having been properly served,
the defendant departs the jurisdiction
Corporations
A company is a legal person without a physical existence and therefore
cannot literally be resident or present in a foreign country. It is, however,
deemed to be resident and present in the foreign country if incorporated
there.
49
Moreover, it may conduct economic activities in countries other
than the country of incorporation. Several cases have been concerned with
deciding upon the nature of the activities that would qualify as residence
or presence in such countries for jurisdictional purposes. Rather than
evaluating the nature of the economic presence per se
50
the common law
has, by analogy to individuals, adopted a more physical test.
Jurisdiction by analogy with the individual was endorsed in Adams v
Cape Industries Plc,
51
which is said by Caribbean courts to be the leading
modern authority on the subject.
52
Adams laid down three criteria by
which the English courts are likely to treat a corporation as resident or
present in a foreign country. First, it must have its own fixed place of
business (often a branch office) there. Second, the corporation must have
carried out its own business, or an agent must have carried out the
corporations business. Third, this business activity must have endured for
more than a minimal time.
53
Two aspects of the residence or presence test have proven controversial.
Where a representative carries on business in a foreign country there may
be some doubt as to whether this person is carrying on the companys
business or is merely minding his or her own business. That was the central
issue in Humphrey v Jolly Roger Cruises Inc.
54
A tourist to Barbados had died
following a boating accident on the Jolly Roger on which he was a passenger.
His parents sued the defendants as owners of the Jolly Roger in New York,
which was the parents state of residence, for damages for negligence in the
death of their son. The defendants did not appear and judgment was
given in default in the sum of over US$1 million. The defendants opposed
enforcement in Barbados on the ground that the New York court had no
jurisdiction since they had no residence or presence in the United States
and had not submitted to the jurisdiction of that court. The plaintiffs
argued that the defendants were present in New York through their
representatives who made bookings for the cruises on behalf of Jolly Roger.
The Barbados High Court rejected the Canadian notion that the foreign
jurisdiction could be founded on a real and substantial connection between
the injury suffered by the plaintiffs and the foreign court.
55
Williams CJ
held that there was no basis for departing from the principles laid down by
in the Sirdar Singh v Rajah and Adams v Cape Industries Plc
56
line of cases,
which based jurisdiction of foreign courts on the defendants residence or
presence there at the time of the suit. Moreover, the defendants connection
to foreign court was to be determined in accordance with Barbados conflict
of laws. The Court examined the totality of the circumstances and found,
on the facts, that the travel agents in New York were carrying on their own
business rather than that of the defendants:
It is stated that the travel agents would contact the defendant on behalf of clients
in New York. They would forward the names of those clients to the defendant in
Barbados, and the defendants would put these names on the list for the cruise. The
agent could collect the money from the client on behalf of the defendants, and
retain a commission.
There was no evidence of any other contact or communication between the
travel agents and the defendant, nor is it suggested that the travel agents could
make bookings without reference to the defendants.
On the other hand, the defendants specifically stated that prior to 19
th
December
1997, it did not allow bookings to be made by travel agents or to be paid for in the
United States of America, nor did it pay commissions to travel agents in the United
States of America. Further, all bookings were made in Barbados.
As it seems to me, the arrangements as alleged by the plaintiffs between the
travel agents and the defendants are too tenuous to give the defendants a presence
in New York. The travel agents clearly cannot be considered agents or representatives
of the defendants carrying on the defendants business rather than their own.
57
The Court was careful to avoid the suggestion that the mere fact that
the representative did not have power to enter into contracts on behalf of
the defendants in the foreign country necessarily meant that the defendants
did not have a presence there.
58
Rather, Williams CJ accepted the variety
of considerations mentioned in Adams that might be looked at in
considering whether a company resident in a particular jurisdiction by
having a representative there. Considerations such as whether the
representative was remunerated by commissions or a regular salary, the
degree of control exercised by the corporation over the business run by the
representative, whether the representative displayed the corporations name,
whether the representative required specific authority in advance to bind
the corporation.
By way of contrast, it was held in Canada Inc. v Socoa
59
that the
establishment of a place of business in Montreal from which some of the
affairs of the company were conducted by its representative, constituted
presence. The Quebec judgment could therefore be enforced in The Grand
Court, in the Cayman Islands. It was immaterial that the place of business
in Montreal was not a registered address for the company.
The other troublesome aspect concerns the circumstances in which a
company is resident or present in a foreign country through its subsidiaries.
Recently this has become a live issue. After an exhaustive examination of
the topic, Slade LJ held in Adams that any relationship between a parent
company and subsidiaries is to be resolved by recourse to tradition principles
of company law asserting the separate legal personality of the company.
There was no room for piercing the veil to prove any singularity of economic
identity between the parent and subsidiary companies.
60
Submission
A foreign court will have jurisdiction in the international sense if the
defendant voluntarily submits to its jurisdiction. Submission covers a
multitude of activities. Many self-evidently constitute submission, others
have attracted controversy. The non-controversial grounds include the
circumstance where the defendant in the enforcement proceedings was the
plaintiff in the original proceedings and thereby became liable in respect
of a counterclaim, cross-claim or costs.
61
Similarly, a defendant who
voluntarily appears in the foreign proceedings or otherwise defends the
action on the merits will be taken to have submitted.
62
In Menendez v
Sawyer
63
the defendants attorney filed the pleadings before a court in Florida
and this was held to amount to submission by the defendant.
Finally, entry of a conditional appearance is considered a complete
appearance for all purposes save for the reservation of the right to challenge
the service out of process. Accordingly, where such a challenge is unsuccessful,
the appearance becomes unconditional and the defendant will be considered
to have submitted.
64
In enforcement proceedings in the Trinidad and Tobago
case of Quinn v Pres-T-Con Limited,
65
the defendant was taken to have
submitted to the jurisdiction of High Court of England following its entry
of a conditional appearance and unsuccessful attempt to have the order for
service out set aside. Even without the additional facts that they then served
their defence and later issued a third-party notice, the appearance was
voluntary submission. In the view of the court:
Where any issues arise for decision at any stage of the proceedings in the foreign
court and that court is invited by the defendant as well as by the plaintiff to decide
those issues, the merits are voluntarily submitted to that court for decision so that
the submission subsequently binds both parties in respect of the dispute as a
whole, even if both would not have been so bound in the absence of that voluntary
submission.
66
By way of comparison, there are two circumstances that have generated
a great deal of litigation concerning whether the defendant may to be
taken to have submitted. These are first, where the defendant appears to
contest jurisdiction, and second, where the defendant agreed ahead of time
to permit disputes to be litigated in the foreign court.
Appearance to contest jurisdiction
A defendant who is simply served with process does not thereby become
amenable to jurisdiction. Accordingly, in Christensen v Holderness School
67
it was held that an application for final judgment under Order 14 to enforce
a New Hampshire judgment for school fees allegedly owed by the defendant,
failed. The defendant had not entered any kind of appearance and the
mere service of the foreign writ or the local writ upon him in the Caribbean
did not amount to submission.
If having been served, a defendant appears in the foreign proceedings
to contest the jurisdiction of the court, and that contest fails, difficult
questions arise as to whether that defendant will be deemed to have
submitted to the courts jurisdiction. Appearance to contest jurisdiction
clearly differs from the situation described above where the defendant
voluntarily appears to fight the case on the merits and in so doing takes the
chance of obtaining judgment in his or her favour. But the common law
draws another distinction. This is between protest as to exercise and protest
as to existence of jurisdiction.
Protest to the exercise of jurisdiction amounts to submission.
Accordingly, in Henry v Geopresco International Ltd.
68
a Jersey companys
appearance before an Alberta court to argue that service out ought to be
set aside on the basis that the court was not the forum conveniens was held
by the English Court of Appeal to amount to submission. A similar
conclusion would probably be reached where a defendant requests a stay
on the basis of forum non conveniens. It is irrelevant that without this
implicit acknowledgment the foreign court would have lacked jurisdiction
in the international sense. It is also immaterial that the stay or dismissal of
the foreign proceedings is sought to enable arbitration to take place or to
enable effect to be given to a Scott v Avery
69
clause.
The question of whether an appearance solely to contest the existence
of the jurisdiction of the foreign court, in order for example, to protect
assets in the country, amounts to submission, was expressly left open in
Henry v Geopresco International Ltd.,
70
and considered but not, it is
submitted, properly or finally decided in Hunter v Crowch.
71
In enforcement
proceedings in The Bahamas, the defendant argued that the Florida courts
did not have jurisdiction because he had entered an appearance for the sole
purpose of protesting against jurisdiction. Adams J quoted from the
troublesome case of Harris v Taylor in support of the proposition that
protesting against the Florida courts jurisdiction meant that the defendant
had made himself amenable to the jurisdiction of the Florida court. This
may be an improper reading of Harris since this case does not concern an
instance of mere appearance to contest jurisdiction.
There are arguments supporting the notion that to protest is to submit.
At the most theoretical level, the existence and exercise of jurisdiction forms
a seamless web insofar as assumed jurisdiction is concerned. Whether the
court has jurisdiction is a function of whether it decides to exercise
competence. Surmounting the hurdle of jurisdiction is only complete with
overcoming the obstacle of discretion.
Moreover, it is a fact of life that, increasingly, the decision on jurisdiction
is conclusive of transnational litigation particularly in the context of the
application of forum non conveniens.
72
There might be little practical
difference between protesting the existence and exercise of jurisdiction
therefore, since a decision on either is often a de facto decision on the merits.
Where the defendant has no asset at risk in the foreign country, the
defendants intermeddling with the process of the foreign court may well
be a ground for finding in favor of submission.
Criticism of the common law led to reformation in the statutory regimes
basing enforcement upon reciprocity. A judgment debtor will not be taken
to have submitted to the jurisdiction of a foreign court if the appearance
was for the purpose of protecting or obtaining the release of property
seized or threatened with seizure in the proceedings or of contesting the
jurisdiction the court.
73
But failure to define the expression contesting
the jurisdiction is rather unfortunate considering the distinctions that
have been made between protest to the existence and exercise of jurisdiction.
In any event, the legislation represents a self-contained regime that was
not intended to repeal the common law framework. So, it was been held
that the legislative provisions are not controlling because it is not possible
to argue backwards from the statute to the content of the common law.
74
Agreement to submit
A foreign court will have jurisdiction over a defendant who had previously
contracted to submit to that jurisdiction, as in Raffle America Inc. v Kingsboro
International Holding Co. Ltd.
75
A contract between the parties obliged the
defendants to manufacture mens, ladies, boys and girls dress shirts in
Barbados. It was a term of the agreement that all disputes should be
submitted to the jurisdiction of the Supreme Court of New York for
determination pursuant to the New York Simplified Procedure for Court
Determination of Disputes. Expressly adopting the ratio of Emanuel v Symon,
the High Court of Barbados held that the New York judgment was
enforceable since the defendant had expressly contracted to submit to that
forum.
Implied agreement may also suffice, as for example, where the defendant
takes shares in a company whose articles of association provide for the
resolution of relevant disputes in the foreign country.
76
Whether conduct
by itself, without express or implied agreement, can amount to submission
is more difficult. In Nebraska Daires Inc., v Tropical Trading
77
it was argued
that the defendant had impliedly submitted to the Nebraska jurisdiction
by becoming party to an agreement governed by Nebraska law by virtue of
the course of dealings with the plaintiff. A finding that this constituted
submission to the jurisdiction in the Nebraska Court was reversed because
it was held that the defendant could not by his conduct be taken to have
submitted.
The Court distinguished on the facts, rather than disapproved in
principle, the case of Blohn v Desser.
78
In that case a sleeping partner in an
Austrian firm, who took no part in the conduct of the business and who
was resident in England, was held by Diplock J to have impliedly submitted
to the jurisdiction of the Austrian courts. This was because she had become
a partner in the foreign firm with a place of business in Austria and
appointed an agent resident in Austria to conduct business on behalf of
the partnership at that place of business in Vienna. The court opined that
the partner must be taken to have submitted to the courts of the foreign
country in the circumstances, where he or she causes or permits these
matters to be notified to persons dealing with the firm by registration in a
public register.
79
This decision has been subject to severe academic criticism,
80
and was
rejected in one notable English case.
81
Recently however, the decision has
been given a new lease on life by the apparent acceptance that an implied
agreement to submit might be enough.
82
Connecting Factors Insufficient to ground Jurisdiction
While the common law list of the bases for jurisdiction cannot be regarded
as necessarily closed, it is fair to say that it is now very difficult to extend it.
Older authorities suggested grounds for jurisdiction that are no longer
tenable and recent authorities in foreign jurisdictions adopting radical
approaches that have, at least for the time being, been rejected. Thus,
despite earlier affirmations none of the following is sufficient to found
jurisdiction: political nationality;
83
domicile;
84
or possession of property
in the foreign country.
85
From the earliest of times it was decided that
jurisdiction of the foreign court based upon the equivalent of service out
under RSC Order 11 was not good enough.
86
Jurisdiction based upon
choice of the foreign law as the governing law is also inadequate.
87
And the
innovative approach of the Canadian Supreme Court in locating jurisdiction
on the basis of a real and substantial connection between the defendant
and the foreign court
88
has been held to have no application in Caribbean
law.
89
Finality and Conclusiveness
The second requirement is that the foreign judgment must be final and
conclusive in the sense that the parties must be able to identify the extent
of their rights and obligations under it. So that if the judgment is subject
to a further investigation by the court giving it, before a final decision is
made, then the earlier judgment cannot be enforced.
90
In comparison, a
judgment subject to being overturned by a higher court on appeal may
nonetheless be enforced in the forum;
91
a situation that contrasts with the
statutory regimes allowing the setting aside of registration if an appeal is
pending, or if the defendant is entitled and intends to appeal.
92
As a matter
of prudence the common law enforcement proceedings are likely to be
stayed pending the disposal of the foreign appeal,
93
although the court
may be indisposed towards a stay where the appeals process is being unfairly
used as a delaying tactic.
94
Caribbean law is replete with examples of litigation on the point of
whether a foreign judgment may properly be regarded as final and
conclusive. Most problematic has been the foreign judgment given in default
of appearance or issuance of a defence. In Triangle Refineries, Inc. v Carle
95
it was held in the Supreme Court of The Bahamas that a Texas judgment
obtained by default, was not a judgment obtained on the merits and
therefore did not meet the requirement of finality stipulated by Bahamian
law. This approach ignored a line of authority going back over 150 years
96
and was itself rejected in Raffle America Inc. v Kingsboro International Holding
Co. Ltd.,
97
which, reasserting traditional law, held that it was immaterial
that a New York judgment was a default judgment. Similarly, in Menendez
v Sawyer III
98
it was agreed that a judgment is not final and conclusive if
the Court who pronounced it had power to rescind or vary it. However,
the Court continued by saying:
A default judgment may be final and conclusive even though it may be set aside by
the court which pronounced it. As Erle, CJ stated in Vanquelin v Bouard (1863) 15
CB NS 341 at 367:
The twelfth plea, to the first count, alleges that the judgment in the
first count mentioned was judgment by default for want of appearance
by the defendant in the court of the Tribunal of Commerce, and by the
law of France would become void as of course on an appearance being
entered. I apprehend that every judgment of a foreign court of
competent jurisdiction is valid, and may be the foundation of an
action in our courts, though subject to the contingency that, by
adopting a certain course, the party against whom the judgment is
obtained might cause it to be vacated or set aside. But, until that
course has been pursued, the judgment remains in full force and capable
of being sued upon.
A Foreign Money Judgment Must Be For A Fixed Sum
A particular consequence of the requirement for finality and conclusiveness
is that if the foreign judgment is for an award for damages, the amount
must be fixed. The obligation on the defendant to pay is said to be inchoate
until the precise sum has been determined. In Sadler v Robins
99
the plaintiff
obtained a decree from a court in Jamaica ordering the defendant and
various other persons to pay him a fixed sum. However, before payment,
the defendant was authorised to deduct his full costs of the litigation. It
was held in enforcement proceedings that until the costs were taxed the
judgment could not be enforced because the exact amount payable was
unknown.
With this may be compared the case of Beatty v Beatty
100
where a wife
obtained a New York order for weekly alimony payments. Under New
York law, she could apply to the court for the amount to be altered if her
circumstances changed materially, but any alteration would not affect the
amount of installments already due. Enforcement proceedings for arrears
under the order were properly instituted since the order was final and
conclusive as to the arrears,
101
and since the actual sum could be ascertained
by simple arithmetical calculation. As a practical matter, there are normally
legislative procedures in place specifically to deal with enforcement of
foreign maintenance orders.
102
Defences
Presumption of Unimpeachability
A foreign judgment, given by a court of competent jurisdiction, and which
is final and conclusive, enjoys the presumption of unimpeachability. This
means it will be assumed to be regular and enforceable. A Caribbean court
will be very reluctant to re-open the case in enforcement proceedings and
is certainly not prepared to act as a Court of Appeal reviewing the merits of
the case. Laager v Kruger
103
expressed this posture in strong language, perhaps
excessively so. Once the foreign judgment is the final and conclusive
judgment of a Court of competent jurisdiction under Caribbean private
international law rules, other issues become irrelevant.
104
In any event, it
may be taken that, as a general rule, the foreign judgment cannot be
impugned on the merits, whether of fact or law.
105
This principle may be
illustrated in various ways.
1. A Mistake of Fact or Law
A Caribbean court will not refuse enforcement of a foreign judgment on
the ground only that the foreign court made an error of law or fact. Such a
mistake goes to the merits of the dispute and should have been brought to
the attention of the foreign court by way of review or appeal. One of the
earliest cases on the subject did refuse enforcement of a foreign judgment
on the ground that it showed on its face, a perverse and deliberate refusal
to recognise the law of the forum.
106
But the accepted approach was
strikingly illustrated in Godard v Gray
107
where the French court gave
judgment upon a contract matter. In applying English law as the governing
law of the contract the court made a bad mistake as to the effect of that law,
and this error was apparent from the wording of judgment. Nevertheless it
was held that the judgment could be enforced in England since the mistake
was no good defence.
In more recent times the Supreme Court of The Bahamas denied the
application in Banque DInvestissements Mobiliers et Financement v Clifton
108
to refuse to enforce an English judgment. It was irrelevant that the English
court had proceeded on the mistaken assumption that the judgment debtor
was resident in The Bahamas, whereas in fact the place of residence was the
United Kingdom. The application was dismissed because the English
judgment created an estoppel by record, which precluded investigation by
The Bahamas courts.
109
2. Lack of Internal Jurisdiction
A lack of internal, as opposed to international, jurisdiction, is unlikely to
render a foreign judgment unenforceable. As long as 100 years ago, it was
asserted that competence in the international sense was all that mattered,
competence or jurisdiction in any other sense is not regarded as material
by the courts of this country.
110
Accordingly, the French judgment in
Vanquelin v Brouard
111
was enforceable even though under its own rules
jurisdiction was limited to bills drawn in a particular area upon traders,
and the defendant was not a trader. The limitation relating to jurisdiction
was a matter for the French court to determine.
Similarly, in Pemberton v Hughes
112
the mistake in giving the respondent
nine days to respond to proceedings rather than the ten days stipulated by
the rules of court was immaterial to recognition. Even if this procedural
irregularity rendered the award void in the foreign court it could still be
recognised in the forum. This was because the foreign court was competent
in the international sense to deal with this sort of case. A mistake or
irregularity of procedure in the exercise of that competence rendered the
right created by the judgment merely voidable, capable of being made
void by subsequent proceedings.
113
3. Defences Available in the Foreign Proceedings
Defences that could have been raised in the foreign proceedings but were
not, cannot, as a general rule, be raised for the first time in the enforcement
proceedings. In Sardina v Johnson
114
the plaintiff, who was the manager
and attorney for a bank in Dominica brought an action there in his own
name against the defendant. Judgment was entered against the defendant
with the defendants consent, but in enforcement proceedings in Barbados,
the defendant argued that the action should have been brought in the
name of the bank. The argument was rejected because the defence as to
capacity of the parties should have been taken in the original proceedings.
Whether the concept of availability of defences refers merely to the
existence of a rule in the foreign court allowing for the defence, or knowledge
of the existence of evidence to support such a defence, is open to speculation.
The general rule is that all relevant evidence must be called at the original
trial and that fresh evidence cannot be introduced in the enforcement
proceedings.
115
Where evidence comes to light only after the original
proceedings, the defence that it supports could only be said to have been
available at trial in a very contrived and artificial sense.
Fresh evidence should therefore be allowed, albeit subject to the kind
of safeguards applicable in purely domestic cases relevant to ensuring prompt
prosecution, and finality of litigation. For these reasons, too, a defence
based upon post-trial appreciation of the significance of evidence known
before the trial should be disallowed, without prejudice to possible
proceedings in respect of negligent legal advice.
4. Avoidance of Forums Limitation Period
The mere fact that the action was brought in the foreign court in order to
avoid a stricter limitation period in the forum is no answer to enforcement
of the foreign judgment. Statutes of limitation specifying a certain period
within which action can be brought are generally considered procedural in
nature and therefore governed by the law of forum in which the action is
brought.
116
They bar the plaintiff from bringing action outside the specified
time but do not affect the substantive right to the cause of action. Many
are the cases where a limitation period has run out in one jurisdiction and
the plaintiff has gone to another jurisdiction having a longer limitation
period and started the action there.
117
Judgments so obtained are perfectly
enforceable in the Caribbean.
The issue of whether enforcement of a foreign judgment obtained in a
foreign action brought outside the limitation period set by the Caribbean
court was considered in the Trinidad and Tobago case of Quinn v Pres-T-
Con Ltd.
118
An accident had occurred in Trinidad in which Frank Quinn
was killed. He had been employed by Marconi Co. Ltd., an English
Company, and his death had been caused by his being struck by a crane
belonging to the defendants, Pres-T-Con Ltd., a company registered in
Trinidad and Tobago. The plaintiff, who was the widow and administratrix
of the estate of the deceased, began an action in England only because by
then the action had become statute-barred in Trinidad and Tobago. She
sued Marconi Co. Ltd. largely because of the necessity of bringing the case
within the Rules of the English Supreme Court Order 11, so that service
could be effected on Pres-T-Con Ltd., in Trinidad on the ground that it
was a necessary or proper party to the English litigation.
It seemed obvious that this case involved nothing less than a bare-
faced attempt, in a matter almost entirely connected with Trinidad and
Tobago, to circumvent the limitation period laid down by the local
legislation. But the Trinidad courts saw nothing wrong with this. Warner J
said:
I for my part see nothing so sacrosanct in the limitation period fixed by our statute
for bringing the action that it becomes an injustice for a would-be litigant to
choose a jurisdiction where the limitation period is longer, after his claim has
become statute-barred here.
119
Persaud, JA, in the Court of Appeal stated:
there is no rule of law to prevent a plaintiff from availing himself of the lex fori
in which he could launch an action that is statute-barred in another jurisdiction
once he obtains leave to serve the process in the other jurisdiction. If the appellants
wished to challenge the order made in the United Kingdom giving such leave in the
instant case, their proper course was to have gone to appeal, but they are not
entitled in my view to lie in wait and take the point when it is being sought to
[enforce] the judgment.
120
Although in line with the presumption of non-impeachability, it has
been argued that this decision goes too far.
121
Enforcement of the foreign
judgment may have been technically within the limitation period because
the enforcement proceeding started to run from the date of the English
judgment rather than from the date of the original cause of action that
arose at the time of the accident. However, this is to ignore the fact that the
original cause of action had its most substantial connection with and was
governed (at least partly)
122
by the law of Trinidad and Tobago. It may
therefore have been contrary to public policy to have thus flagrantly flaunted
the domestic statute of limitation.
5. Cause of Action Unknown in Forum
A foreign judgment will not be refused recognition and enforcement merely
because it was given in respect of a cause of action that was unknown in the
forum. Most of the authorities suggesting that lack of familiarity with the
foreign cause of action may be a ground for non-enforcement are explicable
on other grounds.
123
The issue was faced squarely in Cable Systems
Development Co. v Shoupe.
124
The plaintiffs, who held a franchise under
which they were entitled to provide cable television programmes to
subscribers in New York and New Jersey, obtained judgment in New York
against the defendants for piracy and theft of the television service. The
judgment being largely unsatisfied, the plaintiffs sought enforcement in
The Bahamas where the defendant had fixed deposit accounts. It was held
that the New York judgment should be enforced notwithstanding that no
action for infringement of a franchise to provide a cable television service
existed in The Bahamas.
After reviewing the relevant authorities on the subject, the Chief Justice
of The Bahamas held that mere unfamiliarity with the cause of action did
not mean that it could not be enforced. To the extent cases that appeared
to have decided to the contrary were actually based upon the fact that
enforcement would have been contrary to the forums public policy they
remained,
unchallengeable. In so far as [they were] based on a doctrine that the courts
should not enforce foreign judgments based on causes of action unknown in the
municipal jurisdiction, I would be inclined to express reservations. The overriding
concern appears to be the issue of public policy. Even if the cause of action may be
unknown in the municipal jurisdiction there seems no valid reason why a judgment
so based should not be enforced, unless it does violence to some well-established
principle or underlying concept of municipal law.
125
In deciding whether public policy allows for enforcement, three separate
situations might arise and should be kept distinct. First, the law of the
forum might be completely silent upon the question whether, had the
facts occurred locally, a cause of action would have arisen. In other words,
the plaintiff would have been unable to proceed locally because neither
statutory nor common law made any provision for allowing an action. In
this scenario the judicial attitude may reasonably be enforcement of the
judgment unless some strong reason in principle can be identified for not
doing so.
Secondly, local statutory rules or common law principles might actively
prohibit the kind of cause of action pursued in the foreign proceedings. In
such circumstances, the forum should refuse to enforce the foreign judgment
in all but the exceptional circumstances where the local rule was meant to
regulate only the affairs of local people and neither the parties to the foreign
action nor the transaction itself was closely related to the forum. The problem
here reduces itself to basically one partaking of statutory interpretation.
Thirdly, enforcement of the foreign judgment may be sought against a
defendant who is entitled to protection under the constitution of the forum.
Here there could be an argument that such a defendant is constitutionally
entitled to litigation in the forum, where he would have won by reason of
the unfamiliarity or actual outlawry of the plaintiff s cause of action. To
allow enforcement of the foreign judgment in such cases could clearly lead
to constitutional difficulties.
6. Conflicting Foreign Judgments
In circumstances where there are conflicting foreign judgments, each
pronounced by a court of competent jurisdiction and both being final and
conclusive, the general rule is that the earlier in time prevails. The Privy
Council supported this rather doctrinaire approach in Showlay v Mansour.
126
The plaintiffs had obtained judgment in England against the first defendant
on the ground that the first defendant had stolen the sum of money in
issue from the deceased whose estate was represented by the plaintiffs. The
defendants subsequently obtained judgment in Egypt to the effect that
the money had been a gift. It was held that the English judgment should
be given effect on the general principle that where there were two competing
foreign judgments, each pronounced by a court of competent jurisdiction,
and not open to impeachment on any ground, the earlier prevailed over
the latter.
Adopting this purely procedural posture keeps faith with the notion
that the earlier foreign judgment ought not to be reinvestigated on its
merits. But it does nothing for the later judgment that is discarded without
ceremony, and it puts a premium on the race to get a prior (favourable)
judgment. In circumstances where one or other foreign judgment will be
rejected, it must be consonant with principle to decide which should, on
the merits, be accepted. This may mean, as was implied in the British
Virgin Islands decision of Seafarers International Union Plans v Franco
127
evaluation of the rival claims according to the law governing the dispute.
This would probably have produced the identical result obtained in Showlag
since, on the facts, English law probably governed the question of the
validity of the gift.
7. Conflict With a Caribbean Judgment
A foreign judgment that conflicts with a Caribbean judgment on the same
subject will not be enforced. From this perspective, the decision in Seafarers
International Union Plans v Franco
128
provides an interesting point for
discussion. In this case the High Court of the British Virgin Islands was
presented with conflicting foreign judgments, in addition to which, there
was a judgment in rem of the High Court of the British Virgin Islands in
favour of one of the parties. The plaintiffs had claimed property in a vessel
called the Flying Cloud by virtue of a judgment against the second
defendant by a court in Florida. The judgment was in respect of an unpaid
mortgage owed by the second defendant whose sole asset was the Flying
Cloud. The first defendant had also obtained a foreign judgment, this
time in the courts of Martinique in respect of salvage services rendered by
them the Flying Cloud off the coasts of the Dominican Republic.
Instead of choosing between the two foreign decisions, the High Court
investigated whether the plaintiffs had made out the case for enforcement.
The Court was particularly concerned with whether the plaintiffs claim
could stand as against the earlier British Virgin Islands decision in favour
of the first defendant. It accepted expert evidence that, under Panamanian
law, which was the law governing the mortgage and the law of the ships
registry, the mortgage had been annulled by operation of law for want of
prosecution of the elusive vessel. Therefore, by the time of the previous
action in the High Court, the mortgage had been extinguished and the
plaintiff s enforcement action had to be dismissed.
The decision to evaluate the validity of the rival claims by reference to
the law governing the cause of action rather than the simple application of
the domestic decision is surprising but may be defended. It is entirely
possible that the earlier domestic decision could have been taken without
full investigation of all the relevant allegations, particularly so if the parties
to enforcement proceedings were not all litigants in that earlier case. In
these circumstances it would be unfair and probably contrary to natural
justice to enforce the strict doctrinal position without more.
Rebuttal of the Presumption
Notwithstanding the presumption of unimpeachability, some defences are
available to the defendant in enforcement proceedings. These are that the
foreign judgment was obtained in proceedings tainted with fraud; in
proceedings contrary to natural justice; or in contravention of Caribbean
public policy.
Fraud
Caribbean courts will not recognise or enforce a foreign judgment that was
obtained by fraud, and the mere allegation of fraud is enough to rebut the
presumption against review of foreign judgments on the merits. The concept
of fraud covers a multitude of sins. Tricking or threatening a party into not
taking part in the proceedings, knowingly tendering false evidence, the
courts acceptance of a bribe, or deliberate defrauding of one of the parties,
or of the court, by another party, are all covered.
Review for fraud has been allowed since the nineteenth century English
case of Abouloff v Oppenheimer.
129
In proceedings in a Russian court, the
plaintiff obtained a judgment against defendant ordering the return of
certain goods or payment of damages. When she sought to enforce it in
England, the defendant pleaded that judgment had been obtained by the
fraudulent concealment of the fact that the plaintiff had had the goods in
her possession at the time of the Russian trial. It was held that this was a
good defence despite the fact that the defendant had raised similar
allegations in the Russian proceedings, and that those allegations had been
dismissed.
The Court asserted that the principle that no one could take advantage
of his own wrong applied in the international forum no less than the purely
local context. The principle that the merits of the foreign decision ought
not to be reinvestigated did not apply where the foreign court had been
misled, and where the issue of the misleading of the court had itself never
been decided. Subsequent English cases have held that allegations of fraud
ought to be investigated even though the evidence to be presented was the
same as adduced before the foreign court
130
and even though the evidence
of the alleged fraud could have been presented before the foreign court but
was not.
131
This line of cases was affirmed by the House of Lords in Owens Bank v
Bracco
132
even though the early cases were decided at a time when English
courts paid scant regard to the jurisprudence of other countries. As a matter
of policy there might be a very strong case for a modern review in favour of
according overseas judgments the same finality accorded to purely domestic
judgments but the rule was so well established that its modification was
said to be a matter for the legislature.
The Privy Council in Owens Bank v Etoile Commerciale SA
133
engaged
in a comprehensive discussion of Caribbean law on the point. In proceedings
before the Commercial Court of Paris, Etoile succeeded in an action against
Owens Bank in respect of an action on a written guarantee dated March 1,
1983. Under this arrangement Owens Bank had stood security for a
company to the sum of some 10 million (French francs). The Court of
Appeal of Paris dismissed an appeal alleging that the date of the guarantee
had been fraudulently altered from March 7 to March 1, the company
that was the subject of the surety being legally wound up in the interim.
In enforcement proceedings in St. Vincent and the Grenadines, both
the High Court and the Court of Appeal struck out the allegation of fraud.
However, given the fact that several international companies were domiciled
and transacted business in the jurisdiction, leave was granted for an appeal
to Her Majesty in Council. There was a perceived need to clarify the law
governing the circumstances under which enforcement of a foreign judgment
may be resisted on the ground that it was obtained by fraud.
The Privy Council likewise struck out the plea of fraud. In the course
of doing so the Board discussed three broad principles upon which the
fraud defence operates.
Acceptance of Abouloff
The English authorities derived from the rule in Abouloff were accepted.
This was without enthusiasm and with some regret because of the salutary
principle that favoured finality in litigation. But those cases were thought
too well entrenched to be overruled. There can therefore now be no doubt
that the mere fact that an allegation of fraud was raised and determined in
the foreign country does not prevent its being raised and relitigated in the
enforcement proceedings. Regretfully or not, the Abouloff rule continues
as the general principle of Caribbean law.
Estoppel Per Rem Judicatum
The line advanced by the English Court of Appeal in House of Spring Gardens
Limited v Waite
134
may be regarded as good law. In this case the plaintiffs
obtained judgment against the defendants in Ireland for some 3 million
in damages for misuse of confidential information. In subsequent

proceedings in Ireland, two of the defendants sought to set aside the
judgment in the first action on the ground of fraud. The second action was
dismissed. The plaintiffs then brought an action in England to enforce the
first judgment. They issued a summons under RSC Order 14. The
defendants sought to defend the action on the ground that the first
judgment had been obtained by fraud. It was held that the issue had been
decided against the defendants in the second action in Ireland, and could
not be raised again in the English proceedings. The defendants were
estopped per rem judicatam. The rule in Abouloff was distinguished on the
ground that neither in that case nor in any of the subsequent cases had the
issue of fraud been decided in a second and separate action in the foreign
court.
The principle that an estoppel may be created on the question of fraud
where there have been separate proceedings abroad was applied by the
Court of Appeal of St. Vincent and the Grenadines in relation to the
unsuccessful appeal by Owens Bank to the Court of Appeal of Paris. It was
argued that the striking out of the fraud defence by the High Court of St.
Vincent and the Grenadines activated the defence. This clearly involved
significant bending of the House of Spring Garden exception but the Privy
Council refused to consider whether this was too much of a stretch.
Continued Evolution of the Common Law
There is a possibility that, notwithstanding its codification in the statutory
regime, the courts could alter the common law. In the proceedings before
the Board, the interesting and important argument was presented that
where there was a statutory regime for enforcement, any common law rule
thereby incorporated was frozen at the point of statutory incorporation
and could not be subsequently altered by judicial development of the law.
But where enforcement was sought under the common law regime the
court of ultimate authority was free to develop the common law, so as to
suit modern requirements. In Bracco Lord Bridge had said that if the issue
had been governed by the common law alone, he would have thought it
necessary to consider the Abouloff rule afresh. In Etoile, Counsel for the
respondent sought to steer his ship through the gap left open by the House
of Lords but the Privy Council decided that it was unnecessary to undertake
that voyage because there was a much shorter answer to the appeal.
This shorter answer was found in the rule that the defence of fraud
may be struck out in the enforcement proceedings pursuant to the inherent
power in the court to prevent abuse of its own process. This was the approach
adopted by the High Court and Court of Appeal of St. Vincent and the
Grenadines and which was confirmed and applied by the Privy Council.
According to Lord Templeman:
Where allegations of fraud have been made and determined abroad, summary
judgment or striking out in subsequent proceedings are appropriate remedies in
the absence of plausible evidence disclosing at least a prima facie case of fraud. No
strict rule can be laid down; in every case the court must decide whether justice
requires the further investigation of alleged fraud or requires that the plaintiff,
having obtained a foreign judgment, shall no longer be frustrated in enforcing that
judgment.
135
Accordingly, both the House of Lords and the Privy Council have left
open the possible reformation of the common law as embodied in Abouloff
where enforcement proceedings are brought at common law rather than
under the legislative regimes.
136
And it is definite that the existence of the
statutory regime does not mean that the whole field is effectively governed
by legislation.
137
There are many countries including, as we have seen, the
United States, with whom Caribbean countries have no legislation-based
reciprocal arrangements, and where the relationship governing enforcement
continues to be controlled by the common law. Consequently, there will
be a day of reckoning when a decision will have to be taken on whether
developments in the common law have restricted the availability of the
defence of fraud, beyond the House of Spring Garden case. Unless use of the
newly applied inherent power to prevent abuse of process renders the whole
issue redundant.
Ethical Restrictions on Pleading Fraud
Public allegations of fraud often have significant psychological, social and
economic consequences. As an officer of the Court, counsel is under an
obligation not to allege fraud unless personally persuaded that fraud was
committed. The fraud defence should therefore never be conceived of a
tactical maneuver to rebut the presumption of non-impeachability. In
testing times the court may well have to ensure that those of its offers who
may be ethically challenged are reminded in appropriate terms of their
oaths of office.
Natural Justice
A foreign judgment may be impeached in an action for recognition or
enforcement if it was obtained in proceedings that violated the principles
of natural justice. Under traditional law, natural justice was exclusively
concerned with procedural fairness. The parties must have had due notice
of the allegations and a proper opportunity to have been heard. There is
the further requirement that the tribunal should have been unbiased,
although this is often subsumed under the rule relating to the defence of
fraud.
The question of whether the defendant had a fair chance to present his
or her side of the case arose in Langer v International Transport and
Earthmoving
138
There the plaintiffs asked a Bermuda court to exercise its
power under Order 14 to give summary judgment to enforce a default
judgment obtained in Illinois. The Illinois judgment had been given in
respect of an amended complaint. The original complaint had listed the
first defendant and contained 63 paragraphs. The amendment sued three
defendants and the allegations were described in 152 paragraphs. Yet the
amended complaint was never served on the first defendant. The Bermuda
courts held that the foreign award given in respect of this amended complaint
breached the rules of natural justice because the defendant had never seen
it and had never had the opportunity to answer to it.
The mere fact that the foreign judgment was given in default of
appearance by the defendant does not of itself constitute a contravention
of natural justice. What is required is the opportunity to appear and to be
heard. In Raffle America Inc., v Kingsboro International Holding Co. Ltd.,
139
it was agreed that a New York judgment given in default could be enforced
in Barbados. The foreign judgment had been given after notice had been
served on the defendants by registered airmail and it was immaterial that
the defendants claimed not to have received it.
Moreover, a major concern of the requirement for procedural fairness is
that both parties are treated equally. Thus, the fact, for example, that under
the foreign law none of the parties is competent to give personal evidence
does not preclude enforcement.
140
However, it might be otherwise if the
exclusion of the evidence of one party can be shown to be unfairly prejudicial
even in the context of the exclusion of the evidence of the others.
In tandem with the development of the domestic law of judicial review,
there is emerging the doctrine that a foreign judgment will not be recognised
or enforced if the proceedings in which it was obtained offended the concept
of substantive justice. The leading conflict case on this point is Adams v
Cape Industries Plc
141
where it was decided that an American judgment
offended the English courts understanding of substantive justice and for
this reason, among others, would not be enforced. The American judgment,
given in default of appearance by the defendants, decided a rather complex
dispute involving some two hundred claimants alleging injuries caused by
exposure to asbestos. Even in this circumstance, substantive justice required
that damages be assessed and fixed objectively by the court, rather than, as
was the case here, by counsel for the claimants after the court had indicated
the permissible average level of recovery.
Similarly, an order by a New York court that the defendant provides
security in a sum in excess of US$10 million before the defendant could
continue the defence to the New York litigation was contrary to the English
idea of substantial fairness. There was no reason for the New York court to
think the defendant could pay the security. Thus the New York judgment
obtained in default of defence could not be enforced in Bermuda.
142
Public Policy
No action can be sustained on a foreign judgment contrary to the forums
principles of public policy. But is equally true of any attempt to apply any
foreign law or rights allegedly incurred under any foreign law that is contrary
to public policy. For the sake of convenience, then, public policy is discussed
in the context of the exclusion of foreign laws.
143
SEVERABILITY
A foreign judgment may be impeached in part, giving rise to the conceptual
question of whether the part or parts not impeached may be enforced. It
appears to be settled law that the unimpeached part of the judgment may
be enforced provided it is properly severable from the other part or parts.
In Raulin v Fischer
144
the defendant, a young American lady, while recklessly
galloping her horse in Paris, collided with the plaintiff, a French officer,
and seriously injured him. She was prosecuted under Article 320 of the
French Penal Code, convicted, fined, and ordered to pay damages to the
plaintiff, who happened to have been a French Colonel. In enforcement
proceedings in England, the award of damages was held to be enforceable.
There was power to dissect the judgment and enforce that civil aspect
whilst not enforcing the criminal penalty. It was of no moment that the
foreign court refused to distinguish between the parts of the judgment or
adopted a different classification.
145
The question of the criteria for severability is more difficult and is yet
to be directly addressed. A basic consideration must be whether the part to
be severed could stand on its own, or whether it is so inextricably bound
up with the rest of the judgment as to be inseparable. But what determines
whether an aspect of the judgment has reached the point of inextricability?
First, the matter is clearly not one of whether the unimpeached part is,
formally, subsidiary to the impeached part or parts, or vice versa. By all
accounts, the compensatory award in Raulin was subsidiary in the sense
that the main purpose of the proceedings was the criminal prosecution of
the accused and damages were only considered after the intervention of the
Colonel. Yet it was severable even though the court awarded considerably
more to compensate than to punish.
146
In Mayo-Perrott v Mayo-Perrott
147
it
was held that a foreign order for costs was not severable from the main
award. Although ancillary to a foreign divorce decree, the order could not
be sensibly separated from the decree in respect of which the costs had
been incurred. As the grant of the decree breached the forums public
policy, it followed that the order for costs was equally unenforceable.
Secondly, it may be the case that aspects of a foreign judgment
impeachable for want of jurisdiction may be severable from aspects over
which jurisdiction existed. Raeburn v Raeburn,
148
decided in the High Court
of Antigua and Barbuda, confirmed the traditional rule that a foreign award
in respect of local land is not enforceable. With this may be compared
Burchell v Burchell,
149
which held that a foreign award in respect of local
land could be severed from the impeachable parts of the foreign judgment.
Finally, the criterion of severability may be related to the basis of the
ground for impeachment. Where aspects of a foreign judgment are
unenforceable because of public policy, it is relatively easy to understand
that other parts may be enforced. It is more difficult to understand how
any aspect of a judgment obtained in proceedings contrary to natural justice
may be enforceable, unless the onerous burden of proving that only the
relevant aspects of the proceedings were so tainted is discharged. Fraud
presents similar problems. Although the deceit may be confined to a specific
aspect of the case, there is a fundamental equitable principle that a person
approaching a Caribbean Court for relief must do so with clean hands.
RECOGNITION AS A DEFENCE
The enforcement of a foreign judgment necessarily entails its recognition.
In addition however, a foreign judgment may be recognised for purely
defensive purposes. Recognition is based upon the same basic criteria
governing enforcement, namely, that the judgment must have been given
by a court of competent jurisdiction, be final and conclusive, and be secure
from all legitimate defences. Such a judgment is a conclusive answer to an
action in the local forum on the original cause of action litigated in foreign
forum.
One of the earliest cases on the point appears to be Ricardo v Garcias.
150
Competent Tribunals in France gave judgment against Garcias in an action
brought by him against persons with whom he had been connected in a
loan transaction. The French action had sought an account from these
persons and payment of his share of the profits in the loan. Afterwards, he
filed a bill in the Courts of Chancery against some of the same persons and
in respect of the same matter. It was held that the French judgment was a
defence to the English proceedings. Thus was provided a classical illustration
of a successful defendant in the foreign proceedings being able to raise that
judgment as an estoppel against a subsequent suit in the forum.
An estoppel can also be raised by a successful plaintiff in respect of
matters decided in that plaintiff s favour in the foreign proceedings. The
presumption of unimpeachability is built upon the notion that issues of
jurisdiction and finality and conclusiveness have been decided in the
plaintiff s favour. Etoile Commerciale SA v Owens Bank Ltd.,
151
represents
an instance where the plaintiff s successful answer to the defence of fraud
in the foreign proceeding was held to constitute an estoppel per rem
judicatam preventing their relitigation in the courts of St. Vincent and the
Grenadines.
Application to defences based upon limitation periods could give an
appearance of difficulty. In Harris v Quine
152
lawyers started a case in the
Isle of Man, suing for fees owing to them. The action failed because it had
been brought outside the three year period specified by the statute of
limitation. The equivalent English statute provided for a six year limitation
period, so the lawyers started the same cause of action again in England. It
was held that the English action could proceed since the Isle of Man
judgment did not destroy the actual cause of action, in that it did not
extinguish the actual right to the fees. The foreign judgment merely held
that, because of the limitation statute, the lawyers could not obtain a remedy
in the Isle of Man. In other words, the foreign statute dealt with the
procedure for bringing the action, which is a matter governed by the law of
the forum.
153
JURISDICTION OF THE FORUM
A requirement that can be easily overlooked is that recognition and
enforcement of foreign judgments at common law necessarily mean that
the Caribbean court must have jurisdiction over the enforcement action.
Mere possession by the defendant of real or personal property in the local
forum will not be enough. Competence is based upon grounds for
jurisdiction in personam, namely, service of process pursuant to presence,
submission, or where there are relevant provisions, service out of the
jurisdiction under Order 11 or its equivalent.
The same considerations apply as in establishing original jurisdiction
over a private international law action. Thus in Colt Industries v Sarlie
154
the plaintiffs, a New York company, obtained judgment in New York for a
debt against the defendant, a Frenchman. It then issued a writ to enforce
the judgment in England and served it on the defendant while he was
staying for a few days in a London hotel for reasons unconnected with the
litigation. It was held the English courts had jurisdiction in the enforcement
proceedings. Even temporary presence not amounting to residence sufficed
for in personam jurisdiction. Competence was established provided that
the defendant had not been tricked into coming within the territorial
jurisdiction so that proceedings could be instituted against him.
The traditional understanding is that there must be actual provision
within the rules of the Supreme Court authorising service ex juris. The
older versions of Order 11 do not contain any authorisation for assumed
jurisdiction to enforce any judgments or awards. Also, recent Caribbean
legislative developments do allow assumption of jurisdiction but in respect
of judgments given in the forum.
155
Whether the Privy Council decision in
Walsh v Deloitte & Touche
156
challenges this traditional understanding is
open to debate. By contrast, the rules in England allow service out in
respect of a claim brought to enforce any judgment or arbitral award.
157
The English rule clearly applies in those Caribbean territories that receive
English law pursuant to their constitutional status as overseas dependent
territories incorporating English procedural law.
Whether the English Rule applies in those Caribbean countries
accepting a jurisdiction similar to that exercised in the United Kingdom
was considered by the Supreme Court of The Bahamas in Commercial Bank
of Kuwait S.A.K. v Central Bank of Iraq.
158
The plaintiff obtained judgment
against the defendant in the United States of America and sought to enforce
the judgment in The Bahamas. The defendant had assets in The Bahamas
but did not maintain a presence there. The Rules of the Supreme Court of
The Bahamas, unlike those in England, did not provide that service out
was permissible where the claim was brought to enforce any judgment or
award. Accordingly, even though by statute, the local jurisdiction was the
same as the English High Court over defendants who were not present and
who had not submitted, there was no competence over the defendants in
the instant case. As Barnett J (acting), stated:
In my judgment, to say that Order 11 extends the jurisdiction of the English court,
is simply to say that the Court by its Rules Committee could by amending that
Order enlarge the number of circumstances where the Court may exercise its
undoubted jurisdiction to assume jurisdiction over persons outside its territorial
jurisdiction. I have deliberately used the words jurisdiction in that sentence to
illustrate that the word can be used in many different contexts.
The rules Committee of this Court has not seen fit to extend Order 11 Rule 1
in the manner that the Rules Committee of the English High Court did in the early
1980s. The fact that the claim in the Writ is brought to enforce a judgment is not
a circumstances in which this Court may authorise that notice of the Writ may be
served on a defendant outside of The Bahamas. In the circumstances, I must
respectfully refuse the application by the intended Plaintiffs...
ENFORCEMENT BY STATUTE
A foreign judgment may be enforced without need for bringing fresh
proceedings. Under statutory regimes adopted in most Caribbean countries,
a person may apply to the High Court for an order that the judgment be
registered for enforcement. Registration has the effect of treating the
judgment as if it had been rendered in the Caribbean country thereby
making available the state machinery for its enforcement without need for
formal proceedings or judgment. The actual statutory regimes are based
upon and correspond to the Administration of Justice Act 1920, and the
Foreign Judgments (Reciprocal Enforcement) Act 1933 of the United
Kingdom.
159
The statutes apply, respectively, to judgments given in any
part of the commonwealth, and to any foreign judgments, although there
is the intention of eventually having a single regime equally applicable to
all judgments given outside of local forum.
160
Commonwealth Judgments
The term judgment is defined in broad terms.
161
It means any judgment
or order given or made by a court in any civil proceedings whereby a sum
of money is payable, and includes arbitration awards. Arguably, this includes
awards in matrimonial proceedings, at least those awards that include money
payments.
Application based on Reciprocity
Caribbean legislation on the recognition of commonwealth judgments
distinguishes between United Kingdom and other Commonwealth
judgments. Registration of a United Kingdom is virtually automatic, being
subject only to the substantive provisions of the Act.
162
Where a judgment
has been obtained in the United Kingdom against any person resident in
the United Kingdom, the Court must, on application of the successful
party, issue a certified copy of the judgment for possible use in United
Kingdom judicial proceedings.
By contrast, there is merely discretion to extend the Act to
Commonwealth judgments given outside the United Kingdom. Such
discretion may only be exercised where the President, Governor General,
Prime Minister, or Minister, as the case may be, is satisfied that reciprocal
provisions have been made by the legislature of that country for the
enforcement of local judgments.
163
That Official must make a declaration
by order certifying application to the commonwealth country in question.
It is customary to list certified countries in a Schedule to the Act.
This preliminary point has attracted considerable Caribbean litigation.
In Bougu v Timmins
164
the High Court of St. Vincent and the Grenadines
refused registration of a Canadian judgment as there was no evidence that
the appropriate order had been made in any Canadian court. Another
straightforward clarification was made in Sardina v Johnson.
165
An attempt
to argue for the registration in Barbados of a judgment given in Dominica
under the regime governing foreign judgments had to be corrected by the
Court. As the Court said: Dominica is a member of the Commonwealth
and the statutory provisions relating to registration of foreign judgments
on a reciprocal basis did not apply. Instead, the regime applicable to
Commonwealth judgments did.
A more difficult question concerns the continued applicability of the
statutory framework to countries that have obtained their independence.
The initial enactment of the regime and its extension to commonwealth
countries occurred in the early part of the twentieth century and since
then many gained political independence. In the case of Fitzritson v
Dequazon
166
there was an application for registration in Dominica of a
judgment given by the Supreme Court of Jamaica. Enforcement was resisted
on the ground that the 1924 Order extending the regime to Jamaica had
become invalidated by the subsequent political evolution that country had
undergone in attaining independence. This contention was rejected and
the High Court of Dominica found in favour of the continued validity of
the 1924 Order. It was immaterial that Dominica had, subsequent to the
extension of the Order to Jamaica, adopted the more comprehensive Foreign
Judgments (Reciprocal Enforcement) Act, which consolidated the previous
regimes on enforcement of foreign judgments. The statutory provision did
not affect the issue under review, nor did the Order in Council, in the
absence of specific provision to the contrary, become invalid with regard to
Jamaica upon the attainment of independence by that State.
Time period for Registration
Application for registration must be made within twelve months of the
date of the foreign judgment, or such longer period as allowed by the
court.
167
However, the effluxion of time without any formal application for
or the granting of an extension is not fatal. In an interesting judgment, the
Privy Council has held that the judicial grant of an extension may be both
retroactive and implicit.
Quinn v Pres-T-Con Ltd.,
168
was a case in which the Trinidad plaintiff
and her Trinidad legal advisers had problems keeping to time. Having had
to sue in England because of tardiness in meeting the Trinidad and Tobago
statute of limitation, they obtained an English judgment on October 22,
1975 and made application made to register it in Trinidad and Tobago on
October 27, 1976, some five days out of time. Cross J acceded to the
application and gave the judgment debtors liberty to apply to set aside his
judgment within 14 days. Their application before Warner J was based,
among other things, on the failure to apply for registration within twelve
months of the original judgment. The Judge refused to set aside the
registration, but the Court of Appeal reversed his decision on appeal.
The Privy Council reversed the Court of Appeal and restored the decision
of Judge. When the matter, which had been dealt with by Cross J on an ex
parte basis, had come before Warner J on an inter partes application, he had
full jurisdiction to exercise his own discretion on the matter of the extension
of time. As there was no evidence of any prejudice caused to the judgment
debtors by the extension, there was only one way in which Warner J could
properly have exercised his discretion. Any decision by him not allow the
extra five days, would, in the circumstances of the case, have been plainly
wrong. As a matter of good practice, however,
Where an extension of time is needed, it would be better for the applicant for
registration to make an express application to the judge for such extension, and, if
the judge allows the extension, for the fact of his having done so to be expressly
recorded in his formal order. The following of such a practice would obviate the
kind of difficulty which has caused so much trouble in this case.
169
Discretion
Registration is discretionary, not as of right. The court must be persuaded
that, in all the circumstances of the case, registration is just and
convenient.
170
Common law defences may become relevant here.
Registration could hardly be just and convenient if the judgment was
obtained by fraud, in proceedings contrary to natural justice, or contrary
to public policy.
Judgments which cannot be Registered
Under the statute, registration is not allowed in a number of circumstances.
First, there are considerations related to the competence of the foreign
court. Registration is impossible if the original court acted without
jurisdiction. So too, if the judgment debtor, being a person who was neither
carrying on business nor ordinarily resident within the jurisdiction, did
not voluntarily submit to the jurisdiction of the foreign court.
171
Also, no
jurisdiction exists if the defendant was not duly served with the process of
the foreign court and did not appear, notwithstanding being ordinarily
resident or carrying on business there.
172
These provisions were discussed in Maycock v International Seafoods
Ltd.
173
An application for the registration of a judgment of the High Court
of Guyana as a judgment of the High Court of Barbados was refused. The
jurisdiction of the Guyana Court had been based upon an order for
substituted service on the defendant by way of registered mail to the
defendants registered office in Barbados. This was clearly insufficient under
the common law. These rules were said to be merely the application of the
general rule of international law that in a personal action a decree pronounced
in absentem by a foreign court to the jurisdiction of which the defendant
in no way submitted himself, was an absolute nullity.
174
Secondly, registration will be refused if the judgment debtor satisfies
the Caribbean court either that an appeal is pending or that he is entitled
and intends to appeal.
175
This contrasts with the common law position
somewhat where even with the pendency of an appeal a foreign judgment
is still regarded as final and conclusive.
176
Thirdly, some of the defences available at common law are also expressed
to be available under the statute.
177
Registration must be denied if the
judgment was obtained by fraud. In this regard, it has been accepted that
the common law must be taken as it was found at the time of the enactment
of the legislation. In effect Abouloff reigns supreme. However, the inherent
power to strike out the defence of fraud for abuse of the process of the
court, necessarily applies equally to enforcement by registration as to does
to enforcement by common law action.
178
Registration must also be refused if the judgment was in respect of a
cause of action which, for reasons of public policy or for other similar
reason, could not have been entertained in the registering country. Whether
the legislative wording makes the public policy defence narrower than that
at common law, is a matter for speculation.
179
With reference to the other
common law defences such as breach of the rules of natural justice, it is
suggested that registration would be refused, in any event, at the forums
discretion. Even if convenient it is unlikely to be just to register such a
judgment.
Foreign currency
The rules in respect of the registration of Commonwealth judgments go
back to the early 1920s and are in need of revision. Not surprisingly, these
rules contained no provision for conversion of foreign currency into local
currency. Those were the halcyon days of the British Empire and the
invincibility of the pound sterling. Notwithstanding the absence of express
legislative fiat, Sardina v Johnson
180
held that in accordance with common
law developments, a foreign judgment given in a foreign currency could be
registered as such in Barbados.
Effect of Registration
A judgment registered under the statute is, from the date of registration, of
the same force and effect, and proceedings may be taken on it, as if it had
been originally obtained in the registering court.
181
In relation to execution,
the Caribbean court has the same control and jurisdiction over the judgment
as it has over similar judgments given by itself. A claimant is not deprived
of the right to sue at common law upon the obligation created by the
foreign judgment but proceedings in this way is likely to be penalised in
costs.
182
An important consequence of treating the foreign judgment as if it
were a local judgment is that it should be obeyed timeously. In Grupo
Torras SA v Sheikh Fahad Mohammed Al Sabah
183
the Supreme Court of
The Bahamas rejected an application for an order to stay enforcement of a
foreign judgment which had been registered under the Reciprocal
Enforcement of Judgments Act.
184
The mere possibility of bankruptcy
proceedings being brought against the judgment debtor was not sufficient
reason for a stay. Borrowing from statements in the English White Book
regarding civil procedure governing local judgments, it was said that the
Court does not make a practice of depriving a successful litigant of the
fruits of his litigation. Nor does it lock up funds to which he is prima facie
entitled, pending an appeal.
Foreign Judgments
The objective of the statutory regime based upon the Foreign Judgments
(Reciprocal Enforcement) Act 1933,
185
is, among others, the eventual
replacement of the earlier legislative framework governing the registration
of United Kingdom, and other Commonwealth judgments. For this to
occur a specific declaration is required, that the foreign country is prepared
to offer substantial reciprocity of treatment to judgments obtained in the
relevant Caribbean country. In this way, it was intended that all foreign
judgments, whether Commonwealth or not, would ultimately be treated
equally.
While uniformity of application is at an advanced legislative stage in
some countries,
186
it remains the case that the old fault lines are still generally
manifest. The process of declaring reciprocal treatment is proceeding
extremely slowly because of the absolute necessity to ensure reciprocity by
the foreign country whose judgment is to be enforceable in the local forum
by registration. The net result is that there are relatively limited
opportunities for application of the foreign judgment regime.
An unsuccessful attempt was made to leap frog the need for domestic
legislative and executive intervention in the case of Cour DAppel D Aix-en-
Province.
187
The applicant, who had obtained a French judgment in the
amount of over 103 million French francs, succeeded in his ex parte
application to the Supreme Court of The Bahamas for its registration.
Registration was allowed pursuant to the United Kingdom Act of 1933. It
was accepted that the Order in Council made pursuant to section 7 of the
Act of 1933, where the Act was extended to The Bahamas, meant that the
French judgments could be registered in The Bahamas as in the United
Kingdom.
However, on application by the judgment creditor, it was held that
the registration had to be set aside. The exercise of the prerogative to extend
the Act to Her Majestys dominions (including The Bahamas) meant only
that judgments obtained in certain courts in those countries would be
placed on the same footing as judgments obtained in the foreign countries
to which the Act applied or was extended. It could not have meant any
attempt to legislate concurrently for dominions since to do so would, in
1933, have run counter to basic constitutional principles. At the time The
Bahamas had representative institutions. Nor could inclusion of the 1933
Act in the Revised Laws of The Bahamas cure the defect of lack of
parliamentary and executive intervention.
Although the statutory framework applicable to foreign judgments is
basically similar to the regime governing commonwealth judgments, there
are significant differences. The foreign judgment regime applies, potentially,
to all foreign judgments, whether or not delivered in commonwealth
countries. Judgments retain the same meaning as for commonwealth
awards, but the term action in personam is defined to expressly exclude
any matrimonial cause. This means that the proceedings in connection
with any of the following matters are not covered, that is to say, matrimonial
matters, administration of the estates of deceased persons, bankruptcy,
winding up of companies, lunacy, or guardianship of infants.
188
In at least
one jurisdiction, there is a provision allowing for recognition of judgments
in rem but this appears to be tied to adjudication of actions in respect of
immovable and movable property.
189
As was held in Maple v Maple
190
an
overseas divorce is not an action within the statutes providing for reciprocal
enforcement but rather proceedings within the meaning of the Matrimonial
Causes Acts.
A judgment-creditor may apply to the High Court at any time within
six years for the judgment to be registered, compared with 12 months for
commonwealth judgments. Application is based entirely upon reciprocity;
there is no opportunity for automatic enforcement. But registration is of
right provided only that the judgment was final and conclusive between
the parties thereto, and there is payable thereunder a sum of money, not
being sum payable in respect of taxes or a fine, or other penalty.
For the purpose of the statute a judgment is deemed final and conclusive
notwithstanding that an appeal is pending against it or that it may still be
subject to appeal.
191
No action for recovery of a sum payable under a foreign
judgment can be brought to enforce a judgment that could have been
registered under the Act.
192
In other words the foreign award obliterates
the right to bring proceedings to enforce the foreign judgment. However,
because of the non-merger rule, it is questionable whether this provision
prevents a plaintiff from suing on the original cause of action that gave rise
to the foreign judgment.
Whilst registration may not, in the circumstances just described, be
refused, it can be set aside. There are certain circumstances in which, upon
application by the judgment debtor, the registration must be set aside and
there are other circumstances in which it may be set aside. Registration
must be set aside if the foreign court had no jurisdiction in the circumstances
of the case. In an action in personam, the original court is deemed to have
had jurisdiction in the following cases, namely, where the judgment
debtor:
193
(a) submitted to the jurisdiction of the foreign court by voluntarily
appearing in the proceedings otherwise than for the purpose of
protecting, or obtaining the release of property seized or threatened
with seizure in the proceedings or of contesting the jurisdiction of
that court; or
(b) was plaintiff, or counterclaims in the foreign proceedings; or
(c) had agreed to submit to the jurisdiction of the foreign court; or
(d) was at the time when proceedings were instituted, resident or had
its principal place of business in the foreign country; or
(e) had an office or place of business in the foreign country and the
foreign proceedings were in respect of a transaction effected through
or at that office or place.
The other circumstances where registration must be set aside are the
following:
194
(i) if the judgment is not one to which the Act applies;
(ii) if the judgment was registered in contravention of the Act;
(iii) if the judgment debtor did not receive notice in sufficient time to
enable him to defend the proceedings and did not appear;
(iv) the judgment was obtained by fraud;
(v) enforcement would be contrary to the public policy of the country
of the registering court.
Registration may be set aside if the registering court is satisfied that
the matter in dispute in the proceedings in the original court had previously
to the date of the judgment been the subject of a final and conclusive
judgment by a court having jurisdiction in the matter.
195
It is submitted
that this discretion may be properly exercised after reviewing the merits of
the rival claims for enforcement. The mere fact of the discretion is a
repudiation of the doctrinaire tendency simply to facilitate enforcement of
the judgment that was first in time.
196
CARIBBEAN COURT OF JUSTICE
The recent establishment of the Caribbean Court of Justice (CCJ) has added
a new dimension to the enforcement of foreign judgments. A critical aspect
of the creation of the Caribbean community is the development of right
conditions for an internal market among Member States, allowing,
eventually, for the free movement of goods, persons, and services between
those states. An important feature of this process is the facilitation of the
enforcement of judgments within the single market and economy.
Within the European Union, there are conventional provisions requiring
the free circulation and enforcement of judgments. A judgment given in
one Member State in a civil or commercial matter must, broadly speaking,
be recognised by all contracting states to the Union, subject to limited
exceptions.
197
The situation in CARICOM is not nearly as advanced. There is generally
no obligation to enforce judgments of Member States outside of the regime
establishing enforcement based upon reciprocity, although there are
occasionally legislative admonitions to this direction. Thus the Transnational
Causes of Action (Product Liability) Act of Dominica
198
provides that
Where judgment is given in a transnational cause of action in a CARICOM
State, the Court shall in accordance with any applicable international
convention and customary practice encourage and promote the enforcement
of that judgment in Dominica and other CARICOM territories.
This is taken much further under the Agreement establishing the
CCJ.
199
Contracting Parties agree to take all necessary steps, including
enactment of legislation to ensure that they all act in aid of the Court.
Further, any judgment, decree, order or sentence of the Court given in
exercise of its jurisdiction, shall be enforced by all courts and authorities
in any territory of the Contracting Parties as if it were a judgment, decree,
order or sentence of a superior court of that Contracting Party.
200
OECS JUDGMENTS
A single Supreme Court (High Court and Court of Appeal) is established
for the Member States of the Organisation of Eastern Caribbean States.
201
Judgments rendered by this court are therefore enforceable in each of the
seven countries over which the Court exercises jurisdiction.
202
This is
essentially equivalent to the situation just described in relation to the
European Union. Decisions by the Privy Council on appeal from the Eastern
Caribbean Supreme Court should likewise have direct effect within the
jurisprudence of each of the Member States. So will decisions of the CCJ.
Part 72 of the Civil Procedural Rules adopted in 2000
203
guide the
Court in relation to the formal procedure to be followed for the reciprocal
enforcement of foreign judgments. There are provisions on application for
registration, security for costs, order for registration, register of judgments,
notice of registration, application to set aside registration, issue of execution,
and certification of a copy of the Courts judgment for enforcement in
some other country. The Rules are subject to any enactment in force in a
Member State or Territory relating to reciprocal enforcement of judgments.
NOTES
1. It could be argued that where such legislation exists, it is the legislation that is given
direct domestic effect, rather than the foreign judgment per se.
2. If the country is part of a federation, the prohibition, if it exists, is likely to be found
in the constitutional arrangements. See generally, Adams v Cape Industries Plc [1990]
1 Ch.433, at 553-555.
3. One of the earliest cases on the subject was Geyer v Aguilar (1798) 7 Term Rep 681.
4. See e.g., ss. 2, 7, Foreign and Commonwealth Judgments (Reciprocal Enforcement)
Act (Cap. 201), (Barbados); s. 2 (1), The Judgments and Awards (Reciprocal
Enforcement) Act (Cap. 183), s. 2 (1), The Judgments (Foreign) (Reciprocal
Enforcement) Act (Cap. 184), (Jamaica); s. 2, Judgments Extension Act, (Chap.
5:02), s. 2 (1), Overseas Judgments (Reciprocal Enforcement) Act, 1960 (Cap. 7),
kept in force by the Amendment (Adaptation) Order 1962, (Trinidad and Tobago).
5. Winston Anderson, Private International Family Law. Forthcoming.
6. Cable Systems Development Co. v Shoupe (1986) 39 WIR 1 at 3.
7. (22 Statutes 441). For incorporation into Caribbean law, see e.g., Part I, Foreign and
Commonwealth Judgments (Reciprocal Enforcement) Act (Cap. 201), (Barbados);
The Judgments and Awards (Reciprocal Enforcement) Act (Cap. 183), (Jamaica);
Judgments Extension Act, (Chap. 5:02), (Trinidad and Tobago).
8. (22 Statutes 447). For incorporation into Caribbean law, see e.g., Part II, Foreign and
Commonwealth Judgments (Reciprocal Enforcement) Act (Cap. 201), (Barbados);
The Judgments (Foreign) (Reciprocal Enforcement) Act (Cap. 184), (Jamaica);
Overseas Judgments (Reciprocal Enforcement) Act, 1960 (Cap. 7), kept in force by
the Amendment (Adaptation) Order 1962, (Trinidad and Tobago).
9. Agreement Establishing the Caribbean Court of Justice, done at St. Michael, Barbados
on the February 14, 2001. Entered into force on July 23, 2002 when Guyana joined
St. Lucia and Barbados in depositing its instrument of ratification.
10. The Eastern Caribbean Supreme Court Agreement, 1982. Text in Winston Anderson,
Caribbean Instruments on International Law, (Stone Publications, 1994), at 411.
11. Henderson v Henderson (1843) 3 Hare 100; Arnold v National Westminster Bank Ltd.
[1991] 2 AC 93. These cases affirm that it is for the common good that there should
be an end to litigation: interest rei publicae ut sit finis litum.
12. See e.g., Carl Zeiss Stiftung v Rayner and Keeler Ltd. (No 2) [1967] 1 AC 853 at 966.
13. Section 34, Civil Jurisdiction and Judgments Act 1982 (11 Statutes 1104, 22 Statutes
509, 27 Statutes 852, 1 Statutes 24), (United Kingdom).
14. The writer is unable to locate any legislative provision on the point, but the multiplicity
jurisdictions and the incompleteness of reporting and research facilities, make it
more foolhardy than normal to assert the negative.
15. Slade LJ in Adams v Cape Industries Plc [1990] Ch 433 at 1037.
16. Geyer v Aguilar (1798) 7 Term Rep 681.
17. John OBrien, Smiths Conflict of Laws, (Cavendish Publishing Limited, 1999) at 263,
suggesting that the comity idea may have been a consequence of the writings of
Ulrich Huber (1634-94).
18. Slade LJ in Adams v Cape Industries Plc [1990] Ch 433 at 1039.
19. (1870) LR 6QB 155 at 159. See too, Adams v Cape Industries Plc [1990] 1 Ch.433,
at 552-553.
20. Unreported Judgment of the Court of Appeal for Bermuda, Civil Appeal No. 26 of
1982; dated April 11, 1983.
21. Ibid. See to similar effect, Humphrey v Jolly Roger Cruises Inc., Unreported, High
Court of Barbados, No. 61 of 1998; dated March 26, 1998, (at 9) (adopting obligation
theory as expounded in Adams v Cape Industries Plc [1990] Ch. 433).
22. H.L. Ho Policies Underlying the Enforcement of Foreign Commercial Judgments
(1997) Vol. 46 ICLQ 443-462.
23. Cf. Russell v Smyth, (1842) M. & W.; 152 E.R. 343 at 346, 347 per Lord Abinger CB,
and Parke B.
24. Which, for historical reasons, are enforceable in the Caribbean without regard to
reciprocity.
25. See e.g., Foreign and Commonwealth Judgments (Reciprocal Enforcement) Act
(Cap. 201), (Barbados); The Judgments and Awards (Reciprocal Enforcement) Act
(Cap. 183), The Judgments (Foreign) (Reciprocal Enforcement) Act (Cap. 184),
(Jamaica); Overseas Judgments (Reciprocal Enforcement) Act, 1960 (Cap. 7), kept
in force by the Amendment (Adaptation) Order 1962, (Trinidad and Tobago).
26. Unreported decision of the High Court of Barbados, No. 1677 of 1993, judgment
dated December 16, 1996 (King J).
27. [1953] 2 All ER 794.
28. See Re Trepca Mines [1960] 3 All ER 304; [1960] 1 WLR 1273. Hudson LJ suggesting
that Travers v Holly was restricted to a judgment in rem affecting matrimonial status
and that it had never been followed outside the matrimonial area.
29. Morguard Investments Ltd. v De Savoye (1991) 76 DLR (4
th
) 256.
30. Hunt v T & N Plc (1993) 109 DLR 16.
31. Supra, Chap 5. See Winston Anderson, (1993) Vol. 42 ICLQ 697, at 704.
32. See.g., CPR 2002, R 12, 13, 15; (Jamaica); CPR 2000, R 12, 13, 15 (ECSC). And
see generally, rules 71.1-71.14, Rules of the Supreme Court of the United Kingdom
(White Book). See also Grant v Easton (1883) 13 QBD 302.
33. Colt Industries v Sarlie (No. 2) [1966] 1 All ER 673, [1966] 1 WLR 440.
34. (1808) 9 East 192.
35. (1870) LR 6 QB 155; [1861-73] All ER Rep 988.
36. (1870) LR 6 QB 155 at 160.
37. Emanuel v Symon [1908] 1 KB 302 at 309.
38. E.g., Malone, Snr. J. in Triangle Refineries, Inc. v Carle, Unreported Judgment of the
Supreme Court of The Bahamas, No. 1045/1988; dated September 22, 1988, (at 3).
39. Adams v Cape Industries plc [1990] Ch 433, [1991] 1 All ER 929. Nebraska Daires Inc.,
v Tropical Trading Unreported decision of the High Court of Barbados, No. 1677 of
1993, judgment dated December 16, 1996 (King J.).
40. See e.g., Jaffrey, Introduction to the Conflict of Laws, (1987) at 224, basing this
proposition upon ambiguous statements of Blackburn J in Emanuel v Symon [1908]
1 KB 302 at 309.
41. Carrick v Hancock (1895) 12 TLR 59, at 60.
42. Forbes v Simmons (1914) 20 DLR 100.
43. [1990] Ch 433 at 519.
44. This question was expressly left open by the Court of Appeal in Adams v Cape
Industries Plc [1990] Ch 433 at 518.
45. [1894] AC 670.
46. John OBrien, Smiths Conflict of Laws, (Cavendish Publishing Litmited, 1999) at
266.
47. [1894] AC 670 at 683-684, per Lord Selborne, delivering the opinion of the Privy
Council.
48. CMV Clarkson & Jonathan Hill, Jaffrey on the Conflict of Laws, (Butterworths, 1997)
at 152.
49. Supra, Chap 4.
50. A view urged by Fawcett, A New Approach to Jurisdiction over Companies in Private
International Law (1988) 37 ICLQ 645.
51. [1990] Ch 433.
52. Humphrey v Jolly Roger Cruises Inc., Unreported, High Court of Barbados, No. 61 of
1998; dated March 26, 1998 at 9.
53. Following Littauer Glove Company v F W Millington (1920) Ltd. (192) 44 TLR 746.
54. Unreported, High Court, Barbados, No. 61 of 1998, dated March 26, 1998 at 9.
55. Counsel for the plaintiffs cited several Canadian cases in support of this proposition,
including: DeSavoye v Morguard Investment Ltd. 76 DLR 256, McMickle v Van Straaten,
93 DLR 74; Moses v Shore Boat Builders Ltd. 106 DLR 654.
56. [1894] AC 670.
57. Humphrey v Jolly Roger Cruises Inc., Unreported, High Court of Barbados, No. 61 of
1998, dated March 26, 1998.
58. As was suggested in the case of Vogel v R and A Kohnstamm [1973] 1 QB 133
(Ashword J); see Cohn (1972) 21 ICLQ 157.
59. [1997] CILR 409.
60. Adams v Cape Industries Plc [1990] Ch 433, at 1026:
We do not accept as a matter of law that the court is entitled to lift the corporate
veil as against a defendant company which is the member of a corporate group
merely because the corporate structure has been used so as to ensure that the legal
liability (if any) in respect of particular future activities of the group (and
correspondingly the risk of enforcement of that liability) will fall on another
member of the group rather than the defendant company. Whether or not this is
desirable, the right to use a corporate structure in this manner is inherent in our
corporate law.
61. Schibsby v Westenholz (1870) L.R. 6 Q.B. 155, at 161; Emanuel v Symon [1908] 1 KB
302; Canada Inc. v Socoa [1997] CILR 409.
62. Nebraska Daires Inc., v Tropical Trading Unreported decision of the High Court of
Barbados, No. 1677 of 1993, judgment dated December 16, 1996 (King J). Murphy
v Sivajothi [1999] 1 WLR 467.
63. Unreported Judgment of the Supreme Court of The Bahamas, No. 1383 of 1987;
dated December 21, 1990.
64. Harris v Taylor [1915] 2 KB 580, [1914-15] All ER 366; as affirmed in Henry v
Geopresco, [1976] QB 726, [1975] 2 All ER 702.
65. (1988) 35 WIR 379. See Winston Anderson, (1999) Vol. 42 ICLQ 157.
66. Unreported, Court of Appeal, Trinidad and Tobago, Civil Appeal No. 73 of 1980,
dated July 29, 1985, at 5-6, expressly adopting the words of Roskill LJ in Henry v
Geopresco [1975] 2 All ER 702 at 720.
67. Unreported, Court of Appeal, Bermuda, Civil Appeal No, 20 of 1981; dated April
15, 1982.
68. [1976] QB 726.
69. (1885) 5 HL Cas. 811.
70. [1975] 2 All ER 702. Delivering the judgment of the Court, Roskill LJ found that the
defendants had submitted to the jurisdiction of the foreign court by other actions
whereby the defendants implicitly acknowledged the courts jurisdiction. He
continued:
We therefore say no more than that we are not deciding that an appearance solely
to protest against jurisdiction is, without more, a voluntary submission.
Ibid., at 719. Note that this question was not answered in Re Dulles [1951] Ch 265,
which concerned submission to the forum (rather than the foreign court); nor in
Harris v Taylor [1915] 2 KB 580, which concerned the effect of a conditional appearance
to in a foreign court.
71. Unreported Judgment of the Supreme Court of The Bahamas, dated February 28,
1985 (Adams J).
72. Winston Anderson, Forum Non Conveniens Strikes Again (1998) vol. 23 No. 3
JECS 77; David W. Robertson, The Federal Doctrine of Forum Non Conveniens: An
Object Lesson in Uncontrolled Discretion 29 Texas International Law Journal, 353,
(1994).
73. See e.g., s. 11 (2) (a), Foreign and Commonwealth Judgments (Reciprocal
Enforcement) Act (Cap. 201), (Barbados); s. 6 (2) (a), The Judgments (Foreign)
(Reciprocal Enforcement) Act (Cap. 184), (Jamaica); s. 6 (1) (ii), Overseas Judgments
(Reciprocal Enforcement) Act, 1960 (Cap. 7), kept in force by the Amendment
(Adaptation) Order 1962, (Trinidad and Tobago).
74. Henry v Geopresco International Ltd., [1976] QB 726.
75. (1998) 52 WIR 37.
76. Copin v Adamson [1968] 2 Lloyds Rep 394, NSW CA.
77. Unreported, High Court, Barbados, No. 1677 of 1993, dated December 16, 1996
(King J).
78. [1962] 2 QB 116, [1961] 3 All ER 1.
79. [1962] 2 QB 116 at 123. In the final analysis, the defendant was held not to be liable
in the enforcement proceedings in England because the judgment was not final and
conclusive. (Austrian law had no doctrine of merger of the original debt in the
judgment; the judgment against the partnership was not enforceable against the
individual partners without initiation of separate proceedings). This case was
distinguished in Nebraska Daires Inc., v Tropical Trading Unreported decision of the
High Court of Barbados, No. 1677 of 1993, dated December 16, 1996 (King J) on
the ground that the defendant in Nebraska did not transact his business through an
agent nor did it have any registration in the public records of that State which would
allow Blohns case to be called in aid.
80. Lewis (1961) 10 ICLQ 910; Carter (1962) 38 BYIL 493.
81. Vogel v R.A. Kohnstamm Ltd. [1973] 1 QB 116, [1971] 2 All ER 1428.
82. Adams v Cape Industries plc [1990] Ch 433 at 463-467.
83. Douglas v Forrest (1828) 4 Bing 686; Schibsby v Westenholz (1870) LR 6 QB 155 at
161; Emanuel v Symon [1908] 1 KB 302 at 309; Harris v Taylor [1915] 2 KB 580 379
at 388; Blohn v Desser [1962] 2 QB 116 at 123; Adams v Cape Industries Plc, [1990]
Ch 433 at 515.
84. Cheshire and Norths Private International Law (Butterworths, 13th edn., 1999) at
419-420.
85. Emanuel v Symon [1908] 1 KB 302.
86. Schibsby v Westenholz (1870) LR 6 QB 155.
87. Dunbee Ltd v Gilman & Co (Australia) Pty Ltd [1968] 2 Lloyds Rep 394.; Nebraska
Daires Inc., v Tropical Trading Unreported, High Court of Barbados, No. 1677 of
1993, dated December 16, 1996 (King J).
88. Morguard Investments Ltd. v De Savoye (1991) 76 DLR (4
th
) 256.
89. Nebraska Daires Inc., v Tropical Trading Unreported decision of the High Court of
Barbados, No. 1677 of 1993, judgment dated December 16, 1996 (King J).
90. Nouvion v Freeman (1889) 15 App Cas. 1, 62 LT 189.
91. Colt Industries v Sarlie (No. 2) [1966] 1 WLR 1287, [1966] 3 All ER 85.
92. See e.g., s. 12 (1), Foreign and Commonwealth Judgments (Reciprocal Enforcement)
Act (Cap. 201), (Barbados); s. 7 (1), Judgments (Foreign) (Reciprocal Enforcement)
Act (Cap. 184), (Jamaica); s. 7 (1) Overseas Judgments (Reciprocal Enforcement)
Act, 1960 (Cap. 7), kept in force by the Amendment (Adaptation) Order 1962,
(Trinidad and Tobago).
93. Cf. Petereit v Babcock International Holdings Ltd. [1990] 2 All ER 135.
94. Grupo Torras SA v Sheikh Fahad Mohammed Al Sabah, Unreported, Supreme Court
of The Bahamas, Common Law Side, 2000 No. 579, dated March 2001. Isaacs, J
(Actg.), adopting a portion of the text provided in the English White Book accepted
that the Court does not make a practice of depriving a successful litigant of the fruits
of his litigation, and locking up funds to which prima facie he is entitled pending an
appeal (The Annot Lyle (1886) 11 P. 114, p. 116, C.A.; Monk v Bartram [1891] 1 QB
346); and this applies not merely to execution but also to the prosecution of
proceedings under the judgment or order appealed from. Ibid.
95. Unreported, Supreme Court of The Bahamas, Common Law Side No. 1045/1988;
dated September 22, 1988.
96. Russell v Smyth (1842) 11 LJ Ex 308, 9 M & W 810.
97. (1998) 52 WIR 37.
98. Unreported Judgment of the Supreme Court of The Bahamas, No. 1383 of 1987;
dated December 21, 1990.
99. (1808), 1 Camp. 253.
100. [1924] 1 KB 807, [1924] All ER 314.
101. See too Ashmore v Clarke, Unreported, High Court, Barbados, dated May 8, 1979.
Contrast the case of Harrop v Harrop [1920] 3 KB 386, 90 LJKB 101. (Legislation in
the state of Perak provided that where any person neglected or refused to maintain
his wife or child, a magistrate may order him to make allowance for their maintenance.
An action to enforce a magistrates order was denied in English proceedings because
the legislation gave the magistrate the power to vary the amount to be paid.)
102. See e.g., Maintenance Orders (Reciprocal Enforcement) Act (Cap. 217), (Barbados);
Maintenance Orders (Facilities For Enforcement) Act 1987, (Jamaica); Maintenance
Orders (Enforcement) Act, (Chap. 45: 53), (Trinidad and Tobago). See also, Ashmore
v Clarke, Unreported, High Court of Barbados, dated May 8, 1979.
103. [1997] CILR Notes - 10.
104. Ibid.
105. Menendez v Sawyer III Unreported, Supreme Court, The Bahamas, No. 1383 of
1987; dated December 21, 1990.
106. Simpson v Fogo (1863) 1 H. & M. 195.
107. (1870) LR 6 QB 139, 40 LJQB 62.
108. [1965-70] 2 LRB 202.
109. This decision is very close to the line because this was a issue related to the jurisdiction
of the foreign court, which in turn was decisive as to whether an obligation was
created by the judgment (Schibsby v Westenholz (1870) LR 6 QB 155). On the other
hand, there was no allegation of fraud (contrast Middleton v Middleton [1967] P 62.)
The assumption on which the foreign court acted was acquiesced in by both parties,
which could arguably give rise to the defence of failing to raise an available defence in
the foreign proceedings (Sardina v Johnson (1977) 30 WIR 1), although in the
Banque DInvestissements Mobiliers et Financement case the burden was on the judgment
creditor to establish that the judgment debtor was domiciled outside of the United
Kingdom. In any event, Banque DInvestissements Mobiliers et Financement was a case
on enforcement by registration under the relevant legislation, and therefore a case on
enforcement on the basis of reciprocity rather than on the basis of obligation, per se.
110. Pemberton v Hughes [1899] 1 Ch 781 at 791.
111. (1863) 15 CB NS 341, 33 LJCP 78.
112. [1899] 1 Ch 781.
113. H.E. Read, Recognition and Enforcement of Foreign Judgments (1938), at 100.
114. (1977) 30 WIR 1.
115. De Cosse Brissac v Rathbone (1861) 6 H & N 301, 30 LJ Ex 238.
116. The most famous exception is the stipulation of the time allowed for bringing an
action in respect of adverse possession which is regarded as a rule of substance: see
further, Chap. 7, infra.
117. See e.g., Huber v Steiner (1835) 2 Bing NC 202, [1835-42] All ER 159; Harris v
Quine (1869) LR 4 QB 653, 20 LT 947.
118. (1988) 35 WIR 379 (PC).
119. Quinn v Pres-T-Con Ltd., Unreported, Trinidad and Tobago High Court No. 2745/
76; February 8, 1980.
120. Quinn v Pres-T-Con Ltd., Unreported, Trinidad and Tobago Court of Appeal (Civil
Jurisdiction), Appeal No. 73 of 1980; dated July 29, 1985.
121. Winston Anderson, Enforcement of Foreign Judgments and the Enforcing Courts
Own Statute of Limitation(1999) 9 Carib. L.R. 157.
122. Red Sea Insurance Co v Ltd v Bouygues SA [1995] 1 AC 190, [1994] 3 All ER 749.
123. Winston Anderson, Enforcement of Foreign Judgments Founded Upon A Cause of
Action Unknown in the Forum (1993) Vol. 42 ICLQ 697, discussing Re Macartney,
[1921] 1 Ch. 522; De Brimont v Penniman (1873) 10 Blatchford Circuit Ct. Rep.
436; Burchell v Burchell (1926) 58 Ont. L.R. 515, Phranzes v Argenti [1960] 2 Q.B.
19. The unifying ground for the refusal of enforcement was said to be that
considerations of public policy.
124. (1986) 39 WIR 1.
125. Ibid., at 5.
126. [1995] 1 AC 432 (PC).
127. Unreported, High Court, Virgin Islands, Suit No. 32 of 1974; September 9, 1976.
128. Ibid.
129. (1882) 10 QBD 295, [1881-5] All ER 307.
130. Vadala v Lawes (1890) 25 QBD 310, [1886-90] All ER Rep. 853.
131. Syal v Heyward [1948] 2 KB 443.
132. [1992] AC 443 (HL).
133. [1995] 1 WLR 44 (PC).
134. [1991] 1 QB 241.
135. [1995] 1 WLR 44 (PC), at 51.
136. Nor is the decision in Henry v Geopresco International Ltd. [1976] QB 726, [1975] 2
All ER 702 immediately relevant because that case was concerned with the converse,
that is, arguing back from the statute to determine the common law.
137. Collier, (1992) CLJ 441.
138. Unreported, Court of appeal for Bermuda, Civil Appeal No. 26 of 1982; dated April
11, 1983. See also Jacobsen v Faucon (1927) 138 LT 386.
139. (1998) 52 WIR 37.
140. Scarpetta v Lowenfeld (1911) 27 TLR 509.
141. [1990] Ch 433.
142. Muhl v Arora Insurers [1997/98] Offshore Financial Law Reports 198.
143. Infra, Chap. 7.
144. [1911] 2 KB 93.
145. Under the Privy Council decision in Huntington v Attrill ([1893] AC 150, 68 LT 326)
it was for the forum to determine the substance of the right sought to be enforced,
irrespective of any opinion or view expressed by the foreign court.
146. The fine was in the amount of 100 francs whilst the compensation was for 15,000
francs: [1911] 2 KB 93 at 94.
147. [1958] CLY 501, [1958] IR 336.
148. Unreported, High Court, Antigua and Barbuda, Suit No. 6 of 1988; dated March
20, 1997. See Winston Anderson, Foreign Orders and Local Lands (1999) Vol. 48
ICLQ 117.
149. (1928) 58 QLR 527.
150. (1845) 12 Cl & F. 368; 8 ER 1450. See also Jacobsen v Fraucon (1927) 72 Sol. Jo.
121; 138 LT 386.
151. Unreported, Court of Appeal of Saint Vincent and the Grenadines, Civil Appeal No.
7 of 1991; dated April 4, 1993.
152. (1869) LR 4 QB 653.
153. See Huber v Steiner (1835) 2 Bing NC 202. See further, Chap 7, infra.
154. [1966] 1 All ER 673, [1966] 1 WLR 1287.
155. Order 11, Rule 1 (1) (n), The Rules of The Supreme Court 1985 (title 8), (Bermuda);
Rule 7.3 (5), CPR 2002, (Jamaica); Rule 7.3 (5), CPR 2000, (ECSC).
156. (2001) 59 WIR 30.
157. Order 11, Rule 1 (1) (m), Order 11, RSC, (Supplt. No. 51, August 1987) (United
Kingdom).
158. Unreported. No. 972 of 1996; dated September 30, 1996. (Barnett J (Acting)).
159. A point acknowledged by the Privy Council in Owens Bank Limited v Etoile Commerciale
SA [1995] 1 WLR 44 at 50 (Lord Templeman). See generally: Foreign and
Commonwealth Judgments (Reciprocal Enforcement) Act (Cap. 201), (Barbados).
The Judgments and Awards (Reciprocal Enforcement) Act (Cap. 183), s. 2 (1), The
Judgments (Foreign) (Reciprocal Enforcement) Act (Cap. 184), (Jamaica).
Commonwealth Countries (Enforcement) Act 1921 (Cap. 82), Foreign Judgments
(Reciprocal Enforcement) Act 1958 (Cap. 87), St. Vincent and the Grenadines).
Judgments Extension Act, (Chap. 5:02), Overseas Judgments (Reciprocal
Enforcement) Act, 1960 (Cap. 7), kept in force by the Amendment (Adaptation)
Order 1962, (Trinidad and Tobago).
160. The Foreign Judgments (Reciprocal Enforcement) Act (Cap. 7:04), (Guyana) is
intended to apply to all judgments given in courts outside Guyana. In this respect it
seeks to abolish the distinction between commonwealth and foreign judgments.
See esp. s. 9(2). The consolidation into a single regime in the other Caribbean states
is proceeding extremely slowly because of the need to ensure reciprocity of treatment
by the foreign country whose judgment is to be enforceable in the local forum by
registration.
161. See e.g., s 2, Foreign and Commonwealth Judgments (Reciprocal Enforcement) Act
(Cap. 201), (Barbados); s. 2 (1), The Judgments and Awards (Reciprocal Enforcement)
Act (Cap. 183), (Jamaica); s. 2, Judgments Extension Act, (Chap. 5:02), (Trinidad
and Tobago).
162. See e.g., s. 3, Foreign and Commonwealth Judgments (Reciprocal Enforcement) Act
(Cap. 201), (Barbados); s. 3, The Judgments and Awards (Reciprocal Enforcement)
and Tobago).
and Tobago).
164. Unreported, High Court, St. Vincent and the Grenadines, Suit No. 18 of 1973,
dated March 3, 1973.
165. (1977) 30 WIR 1.
166. Unreported, High Court, Dominica, Suit No.. 76 of 1970, dated February 18, 1970.
5:02), (Trinidad and Tobago).
168. (1988) 35 WIR 379.
169. Ibid., at 385.
and Tobago). Akande v Balfour Beatty Construction Ltd [1998] I Pr 110 at 123.
171. See e.g., s. 3 (2), (a), (b), Foreign and Commonwealth Judgments (Reciprocal
Enforcement) Act (Cap. 201), (Barbados); s. 3 (2), (a), (b), The Judgments and
Awards (Reciprocal Enforcement) Act (Cap. 183), (Jamaica); s. 4, (a), (b), Judgments
Extension Act, (Chap. 5:02), (Trinidad and Tobago).
172. See e.g., s. 3 (2), (c), Foreign and Commonwealth Judgments (Reciprocal
Enforcement) Act (Cap. 201), (Barbados); s. 3 (2), (c), The Judgments and Awards
(Reciprocal Enforcement) Act (Cap. 183), (Jamaica); s. 4, (c), Judgments Extension
Act, (Chap. 5:02), (Trinidad and Tobago).
173. (1984) 37 WIR 69. See also, Akande v Balfour Beatty Construction Ltd [1998] I Pr 110
at 123.
174. Ibid., at 71, citing Sirdar Gurdyal Singh v Rajah of Faridkote [1894] AC 670; Littauer
Glove Company v F W Millington (1920) Ltd. (1928) 44 TLR 746.
175. See e.g., s. 3 (2), (e), Foreign and Commonwealth Judgments (Reciprocal
Enforcement) Act (Cap. 201), (Barbados); s. 3 (2), (2), The Judgments and Awards
(Reciprocal Enforcement) Act (Cap. 183), (Jamaica); s. 4 (e), Judgments Extension
Act, (Chap. 5:02), (Trinidad and Tobago).
176. Colt Industries v Sarlie (no 2) [1966] 1 All ER 673, [1966] 1 WLR 440.
177. See e.g., s. 3 (2), (c), (d), (f ), Foreign and Commonwealth Judgments (Reciprocal
Enforcement) Act (Cap. 201), (Barbados); s. 3 (2), (c), (d), (f ), The Judgments and
Awards (Reciprocal Enforcement) Act (Cap. 183), (Jamaica); s. 4, (c), (d), (f ),
Judgments Extension Act, (Chap. 5:02), (Trinidad and Tobago).
178. See Privy Council in Owens Bank Limited v Etoile Commerciale SA [1995] 1 WLR 44.
179. Note that Cable Systems Development Co. v Shoupe (1986) 39 WIR 1 drew a clear
distinction between application of public policy in domestic as compared with
transnational cases.
180. (1977) 30 WIR 1, at 4-7.
5:02), (Trinidad and Tobago).
182. Such a claimant is not entitled to the costs of the action unless the application to
register had been refused or unless the court otherwise orders.
183. Unreported. Supreme Court of The Bahamas. 2000 No. 579; dated March 2001.
184. Chap. 67.
185. See e.g., Foreign and Commonwealth Judgments (Reciprocal Enforcement) Act
(Cap. 201), (Barbados). The Judgments and Awards (Reciprocal Enforcement) Act
(Cap. 183), s. 2 (1), The Judgments (Foreign) (Reciprocal Enforcement) Act (Cap.
184), (Jamaica). Commonwealth Countries (Enforcement) Act 1921 (Cap. 82),
Foreign Judgments (Reciprocal Enforcement) Act 1958 (Cap. 87), St. Vincent and
the Grenadines). Judgments Extension Act, (Chap. 5:02), Overseas Judgments
186. For instance in Guyana: The Foreign Judgments (Reciprocal Enforcement) Act (Cap.
7:04), (Guyana) is intended to apply to all judgments given in courts outside Guyana.
In this respect it seeks to abolish the distinction between commonwealth and
foreign judgments. See esp. sect. 9 (2).
187. Unreported. Supreme Court of The Bahamas. 1998 No. 1255; dated May 25, 1999.
188. See e.g., s.7, Foreign and Commonwealth Judgments (Reciprocal Enforcement) Act
(Cap. 201), (Barbados), s. 2, The Judgments (Foreign) (Reciprocal Enforcement)
Act (Cap. 184), (Jamaica), s. 2, Overseas Judgments (Reciprocal Enforcement) Act,
1960 (Cap. 7), kept in force by the Amendment (Adaptation) Order 1962, (Trinidad
and Tobago).
189. Section 11 (2) (b), Foreign and Commonwealth Judgments (Reciprocal Enforcement)
Act (Cap. 201), (Barbados).
190. [1988] Fam 14; [1987] 3 All ER 188.
Act (Cap. 201), (Barbados); s. 3 (3), The Judgments (Foreign) (Reciprocal
Enforcement) Act (Cap. 184), (Jamaica); s. 3 (3) Overseas Judgments (Reciprocal
Enforcement) Act, 1960 (Cap. 7), kept in force by the Amendment (Adaptation)
Order 1962, (Trinidad and Tobago).
192. See e.g., s. 13, Foreign and Commonwealth Judgments (Reciprocal Enforcement)
Act (Cap. 201), (Barbados); s. 8, The Judgments (Foreign) (Reciprocal Enforcement)
Act (Cap. 184), (Jamaica); s. 38, Overseas Judgments (Reciprocal Enforcement) Act,
1960 (Cap. 7), kept in force by the Amendment (Adaptation) Order 1962, (Trinidad
and Tobago).
Enforcement) Act (Cap. 201), (Barbados), s. 6 (2), The Judgments (Foreign)
(Reciprocal Enforcement) Act (Cap. 184), (Jamaica), s. 6 (2), Overseas Judgments
Enforcement) Act (Cap. 201), (Barbados), s. 6 (1) (a), The Judgments (Foreign)
(Reciprocal Enforcement) Act (Cap. 184), (Jamaica), s. 6 (1) (a), Overseas Judgments
195. See e.g., s. 6 (1) (b), Foreign and Commonwealth Judgments (Reciprocal
Enforcement) Act (Cap. 201), (Barbados), s. 6 (1) (b), The Judgments (Foreign)
(Reciprocal Enforcement) Act (Cap. 184), (Jamaica), s. 6 (1) (b), Overseas Judgments
196. See Seafarers International Union Plans v Franco, Unreported, High Court, Virgin
Islands, Suit No 32 of 1974, dated January 9, 1976; but contrast Showlag v Mansour
[1995] 1 AC 432 (PC).
197. See generally, Cheshire & Norths Private International Law, (PM North and JJ Fawcett,
13th edn., 1999), Chap 16.
198. Act 1997, No. 16 of 1997.
199. Agreement Establishing the Caribbean Court of Justice, done at St. Michael, Barbados,
on February 14, 2001. Entered into force on July 23, 2002 when Guyana joined St.
Lucia and Barbados in depositing its instrument of ratification.
200. Article XXVI (a).
201. Text in Winston Anderson, Caribbean Instruments on International Law, (Stone
Publications, 1994) at 411.
202. Antigua and Barbuda, The British Virgin Islands, Dominica, Montserrat, Saint
Christopher-Nevis, Saint Lucia, and Saint Vincent and the Grenadines.
203. Published by The Caribbean Law Publishing Company, Kingston, 2001.
Copyright of Elements of Private International Law is the property of Ian Randle Publishers and its content may
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Foreign Judgments 205

230 ELEMENTS OF PRIVATE INTERNATIONAL LAW

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