Anwar et al v. Fairfield Greenwich Limited et al

Filing 1048

DECLARATION of Professor Jonathan Harris in Support re: #775 FIRST MOTION to Certify Class.. Document filed by AXA Private Management, Harel Insurance Company Ltd., Harel Insurance Company, Ltd., Pacific West Health Medical Center Inc. Employees Retirement Trust(On behalf of Itself), Pacific West Health Medical Center Inc. Employees Retirement Trust(on Behalf of All Others Similarly Situated), Pacific West Health Medical Center, Inc. Employee's Retirement Trust, Securities & Investment Company Bahrain, St. Stephen's School. (Attachments: #1 Exhibit 1 through 3, #2 Exhibit 4 Part 1, #3 Exhibit 4 Part 2, #4 Exhibit 5, #5 Exhibit 6, #6 Exhibit 7 and 8, #7 Exhibit 9 through 11, #8 Exhibit 12 through 14, #9 Exhibit 15 through 21, #10 Exhibit 22 and 23, #11 Exhibit 24, #12 Exhibit 25 through 27, #13 Exhibit 28 through 32, #14 Exhibit 33, #15 Exhibit 34, #16 Exhibit 35, #17 Exhibit 36, #18 Exhibit 37 through 39, #19 Exhibit 40, #20 Exhibit 41 Part 1, #21 Exhibit 41 Part 2, #22 Exhibit 42 through 51, #23 Exhibit 52 through 65, #24 Exhibit 66 through 70, #25 Exhibit 71 through 74, #26 Exhibit 75 through 77, #27 Exhibit 78 through 81, #28 Exhibit 82, #29 Exhibit 83 Part 1, #30 Exhibit 83 Part 2, #31 Exhibit 84 and 85, #32 Exhibit 86 Part 1, #33 Exhibit 86 Part 2, #34 Exhibit 87 through 90, #35 Exhibit 91 Part 1, #36 Exhibit 91 Part 2, #37 Exhibit 92 through 103, #38 Exhibit 104 through 106, #39 Exhibit 107 and 108, #40 Exhibit 109 through 113)(Barrett, David)

EXHIBIT 86
Part 2

"'.

.....

-T-"

"

..

.

-'

I

The Cayman Islands

(i)
(ii)

my

een
(iii)

by

mId
tion
nne

; of

any
that

The order giving leave to register a judgment must be drawn up by, or on behalf
of, the judgment creditor, but need not be served on the judgment debtor, unless
the Court otherwise directs." The order is required to state the period within
which an application may be made to set aside the registration" and shall
contain a notification that execution on the judgment will not issue until after
the expiration of that period." Once registered, the judgment is filed in the
register of judgments as if it were a judgment of the Grand Court."
Notice of registration of a judgment containing:
(a)
(b)

'Jrte
)r.26

(c)
(d)

oode
y, so

that the judgment creditor is entitled to enforce the judgment;
as the case may require, either that at the date of the application the
judgment has not been satisfied, or the amount in respect of which it
remains unsatisfied;
that the judgment does not fall within any of the cases in which a
judgment may not be registered under the Law, section 4.

The Grand Court has power to order the applicant to provide security for costs
for the application for registration and of any proceedings which may be
brought to set aside the registration."

are

duly
~lish
ic or

159

full particulars ofthe judgment registered and the order for registration;
the name and address of the judgment creditor or of his attorney or agent on
whom, and at which, any summons issued by the judgment debtor may be
served;
the right of the judgment debtor to apply to have the registration set aside;
and
the period within which an application to set aside the registration may be
made.33

The notice must be served on the judgment debtor by delivering it to him
personally or by sending it to him at his usual or last known place of abode or
business or in such other manner as the court may direct. 34 If this is outside the
28

Grand Court Rules Ord 71, r 4_

29

Ibid, Ord 71, r 5.

30

Under ibid, Ord 71, r 5(4) the court may, on an application made at any time while it remains
competent for any party to apply to have the registration set aside, extend the period (either as
originally fixed or as subsequently extended) within which an application to have the
registration set aside may be made.

31

Ibid, Ord 71, r 5.

32

Ibid, Ord 71, r 6.

33

Ibid, Ord 71, r 7(3).

34

Ibid, Ord 71, r 7(1).

Part III - Enforcement ofF oreign Judgments

160

r
I
I

Cayman Islands then it may be served abroad without leave provided the same
rules are followed as if it were a writ to be served abroad."
An application to set aside the registration of a judgment must be made by
summons supported by affidavit. In addition, the Grand Court hearing the
application may order any issue between the judgment creditor and the
judgment debtor to be tried in any manner in which an issue in an action may be
ordered to be tried."
Execution shall not issue on a judgment registered under the Law until after the
period within which an application may be made to set aside the registration, as
specified in the order for registration and as extended by the court if it has been
so extended." If an application has been made to set aside the registration of a
judgment then execution shall not issue until after such application is finally
determined." In order to issue execution on a judgment registered under the
Law the applicant must produce to the Clerk of the Grand Court an affidavit of
service of the notice of registration of the judgment and any order made by the
Grand Court in relation to the judgment."

12.3 ENFORCEMENT AT COMMON LAW
By reason of the limited application of the statutory regime for enforcement of
foreign judgments as explained above, the majority of foreign judgments
enforced in the Cayman Islands will be enforced at common law by means of an
action on the judgment. In practice this is a straightforward procedure. An
action on the foreign judgment will be commenced by writ, but the foreign
judgment creditor can apply under Grand Court Rules, Order 14 for summary
judgment on the ground that the foreign judgment debtor has no defence to the
claim. As will appear below, the potential defences against enforcement of a
foreign judgment at common law in the Cayman Islands are limited and
therefore summary judgment will normally be granted thereby providing a swift
and economic means of enforcing the foreign judgment in the Cayman Islands.
Once judgment has been given, the judgment is a judgment of the Grand Court
and may be enforced in the Cayman Islands by the various means available for
the enforcement of domestic judgments.
35

Grand Court Rules Ord 71, r 7(2).

36

Ibid, Ord 71, r 9.

37

Ibid, Ord 71, r 10(1).

38

Ibid, Ord 71, r 10(2).

39

Ibid, Ord 71, r 10(3).

\-

The Cayman Islands

me

by
the
the
be

the
, as
een
If a
illy

thr .
t of
the

of
mts
fan
An

161

An action may be brought on an in personam judgment at common law if it is
for a money judgment, it is final and conclusive and was made by a court having
competent jurisdiction, that is to say jurisdiction in accordance with Cayman
Islands conflict of laws rules, which are to all intents and purposes identical to
those of England and Wales.

Money judgment
A money judgment is a judgment that orders the judgment debtor to pay a
definite and ascertained amount of money to the judgment creditor. It may be a
judgment for a debt or for damages or for costs, but the Grand Court, just as the
courts of England and Wales will not enforce directly or indirectly the revenue
laws of a foreign country" nor will they enforce any fine or other penalty."

Final and conclusive"
A judgment will be final and conclusive" if the foreign court would treat the
matter as having been determined so that it was res judicata and could not be relitigated by the parties in the foreign court otherwise than by appeal. In other
words it must be a judgment that is final as opposed to interlocutory so that it
could subsequently be abrogated or varied by the foreign court which granted
it.44

t

.ign

iary
the
)f
and
wift
rds.
ourt
for

The fact that the foreign judgment may be subject to appeal or is even actively
under appeal does not prevent it from being considered final in the sense
required for enforcement at common law. However, where the foreign judgment
was under appeal the Grand Court would stay execution of any judgment given
on an action brought on the foreign judgment.

<

40

Wahr-Hansen v Compass Trust Company Limited [2007] CILR 55 per Henderson J, Grand
Court

41

42
43

44

'Penalty' in this context means a payment to the state rather than a private claimant However,
punitive damages which are not compensatory in character are likely to be held contrary to
public policy and on that ground unenforceable.
The leading English case is Nouvion v Freeman (1889) 15 App Cas 1.
The phrase sounds more interesting than it is: If it is final it will be conclusive, and if it is
conclusive it will be final.
As opposed to being reversed or varied on appeal to a higher court

Part III - Enforcement ofF oreign Judgments

162

A court of competent jurisdiction
The foreign court will have jurisdiction over the judgment debtor and so be a
court of competent jurisdiction if:
(1)

the judgment debtor was, at the time the proceedings were instituted,
present in the foreign country;
(2) the judgment debtor was the plaintiff or counter-claimant in the
proceedings in the foreign court;
(3) the judgment debtor was the defendant and submitted to the jurisdiction of
the foreign court by voluntarily appearing in the proceedings and
contesting them on the merits; or
(4) the judgment debtor was the defendant and, before the commencement of
the proceedings, agreed in respect of the subject-matter of the proceedings
to submit to the jurisdiction of the foreign court."

These principles were expressly recognised as applicable in the Cayman Islands
by Levers J in Banco Mercantil Del Norte SA (Grupo Financiero Banorte) v
Cabal Peniche" where she said:
... at common law the Court will enforce a judgment of a foreign court in a claim
provided that the foreign court had jurisdiction over the judgment
debtor in accordance with the rules of private international law, i.e. in one of the
following four cases:
in personam

(a)
(b)
(c)

(d)

if the judgment debtor was, at the time the proceedings were instituted,
present in the foreign country;
if the judgment debtor was the plaintiff or counter-claimant in the
proceedings in the foreign court;
if the judgment debtor was the defendant and submitted to the jurisdiction of
the foreign court by voluntarily appearing in the proceedings and contesting
them on the merits; or
if the judgment debtor was the defendant and, before the commencement of
the proceedings, agreed in respect of the subject matter of the proceedings to
submit to the jurisdiction of the foreign court.

The foreign judgment must also not be procured by fraud, given in breach of
natural justice, or otherwise contrary to Cayman public policy."

45

46
47

Rule 36 in Dicey, Morris & Collins,
Maxwell, 2006), at p 588.

The Conflict of Laws, 14th edn (London: Sweet &

[2003] CILR 355 per Levers J, Grand Court.
Ibid, at (8).

The Cayman Islands

a

d,

The foreign court will have had jurisdiction under these rules over the judginent
debtor even though he was not resident in the foreign country at the time the
proceedings were commenced against him, provided that if an individual he was
physically present there. In Adams v Cape Industries PLC8 the English Court of
Appeal said:
while the use of the particular phrase 'temporary allegiance' may be a misleading
one in this context, we would, on the basis of the authorities referred to above,
regard the source of the territorial jurisdiction of the court of a foreign country to
summon a defendant to appear before it as being his obligation for the time being
to abide by its laws and accept the jurisdiction of its courts while present in its
territory. So long as he remains physically present in that country, he has the
benefit of its laws, and must take the rough with the smooth, by accepting his
amenability to the process of its courts. In the absence of authority compelling a
contrary conclusion, we would conclude 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 intemationallaw .49

le
of

ld
of
gs

v

.m
mt
he

163

Where the judgment debtor was resident in the foreign country, but not present
at the time this is probably sufficient to give the foreign court jurisdiction."
In the case of a corporation the test for 'presence' is whether the corporation is
carrying on business at a fixed place within the foreign country. The Court of
Appeal in Adams v Cape Industries pic gave the following guidance:

xl,
he

In relation to trading corporations, we derive the three following propositions from
consideration of the many authorities cited to us relating to the 'presence' of an
overseas corporation.

of
ng

(I)

of
to

of

The English courts will be likely to treat a trading corporation incorporated
under the law of one country ('an overseas corporation') as present within the
jurisdiction of the courts of another country only if either (i) it has established
and maintained at its own expense (whether as owner or lessee) a fixed place
of business of its own in the other country and for more than a minimal
period of time has carried on its own business at or from such premises by its
servants or agents (a 'branch office' case), or (ii) a representative of the
overseas corporation has for more than a minimal period of time been
carrying on the overseas corporation's business in the other country at or
from some fixed place of business.

&
48

[1990] Ch 433 (CA).

49

Ibid,at519.

50

See State Bank of India v Murjani Marketing Group Ltd, 27 March 1991, unreported (CA).

Part III - Enforcement

164

ofF oreign Judgments

(2)

In either of these two cases presence can only be established if it can fairly be
said that the overseas corporation's business (whether or not together with the
representative's own business) has been transacted at or from the fixed place
of business. In the first case, this condition is likely to present few problems.
In the second, the question whether the representative has been carrying on
the overseas corporation's business or has been doing no more than carry on
his own business will necessitate an investigation of the functions which he
has been performing and all aspects of the relationship between him and the
overseas corporation.

(3)

In particular, but without prejudice to the generality of the foregoing, the
following questions are likely to be relevant on such investigation: (a)
whether or not the fixed place of business from which the representative
operates was originally acquired for the purpose of enabling him to act on
behalf of the overseas corporation; (b) whether the overseas corporation has
directly reimbursed him for (i) the cost of his accommodation at the fixed
place of business; (ii) the cost of his staff; (c) what other contributions, if any,
the overseas corporation makes to the financing of the business carried on by
the representative; (d) whether the representative is remunerated by reference
to transactions, e.g. by commission, or by fixed regular payments or in some
other way; (e) what degree of control the overseas corporation exercises over
the running of the business conducted by the representative; (f) whether the
representative reserves (i) part of his accommodation, (ii) part of his staff for
conducting business related to the overseas corporation; (g) whether the
representative displays the overseas corporation's name at his premises or on
his stationery, and if so, whether he does so in such a way as to indicate that
he is a representative of the overseas corporation; (h) what business, if any,
the representative transacts as principal exclusively on his own behalf; (i)
whether the representative makes contracts with customers or other third
parties in the name of the overseas corporation, or otherwise in such manner
as to bind it; (j) if so, whether the representative requires specific authority in
advance before binding the overseas corporation to contractual obligations.

i

i
~

This list of questions is not exhaustive,
necessan ·1 cone I·
y
usive. 51

and the answer to none of them is

These principles would be applied by the Grand Court.

12.4 NON-MONEY JUDGMENTS
Until recently, where a foreign judgment provides for relief other than the
the Cayman Islands, although it could nevertheless be recognised by the courts
51

[1990] Ch 433 at 530-531.

The Cayman Islands

y be
I the
lace
ems.
~ on

165

of the Cayman Islands and be relied upon by way of defence. Following the
decision of Smellie CJ in Miller v Gianne and Redwood Hotel Investment
Corporation'? it seems most likely that a non-monetary foreign judgment will
now be enforced in the Cayman Islands following the recent development of the
common law in Pattni v Ali53and Pro Swing v Ella Golf."

yon

h he
Ithe

. the
(a)
stive
:t on
I has

In order to be recognised at common law a foreign judgment must be a final and
conclusive judgment on the merits and must be made by a court having
competent jurisdiction, that is to say jurisdiction in accordance with Cayman
Islands conflict of laws rules, which are to all intents and purposes identical to
those of England and Wales.
The question whether the judgment
above.

is final and conclusive has been considered

lxe
an)',
n by
ence
.ome

over
r the

For the judgment to have been 'on the merits' the foreign judgment must deal
with the substantive issues in the case and not merely decide on the basis of a
procedural rule in the foreign court."
In The Sennar (No 2/6 Lord Brandon said:

f for

Looking at the matter negatively a decision on procedure alone is not a decision on
the merits. Looking at the matter positively a decision on the merits is a decision
which establishes certain facts as proved or not in dispute; states what are the
relevant principles of law applicable to such facts; and expresses a conclusion with
regard to the effect of applying those principles to the factual situation concerned."

~ the
)r on
: that
.any,
f; (i)

third
mner
ity in

The rules for jurisdiction
considered above.

for a foreign judgment

in personam have been

IS.

rn is

Where the foreign judgment is in rem, ie the judgment deals with the right to
posssion or property in a thing or the sale of a thing in satisfaction of a claim
against the thing itself then it will be recognised or enforced in the Cayman
islands at common law if it relates to moveable or immoveable property situate
in the foreign country at the time of the proceedings.

52
53

[2007] CILR 18.
[2006] UKPC 51 (Isle of Man).

the

54

ed in

55

Harris v QUine (1869) LR 4 QB 653.

56

[1985] 1 WLR 490 (HL).

1

ourts
57

[2006] SCR 612 (SCC).

Ibid, at 499.

Part III - Enforcement ofF oreign Judgments

166

12.5 BARS TO RECOGNITION OR ENFORCEMENT
Where the foreign judgment is entitled to recognition or to be enforced at
common law it cannot be challenged on the ground of an error of law or an error
of fact. Where the judgment has been procured by fraud, whether by fraud on
the foreign court or a fraud on the judgment debtor, then it will not be
recognised or enforced in the Cayman Islands. Similarly, if recognition would
be contrary to the public policy of the Cayman Islands or was obtained in breach
of natural justice.

The fraud exception
The fraud exception to recognition and enforcement is applicable even though
the foreign court has itself considered the evidence which supports the
allegation of fraud. In Vadala v Lawes" Lindley LJ said:
if the fraud upon the foreign court consists in the fact that the plaintiff has induced
that court by fraud to come to a wrong conclusion, you can re-open the whole case
even although you will have this court to go into the very facts which were
investigated and which were in issue in the foreign court.

This principle has more recently been re-affirmed by the Court of Appeal in Jet
Holdings v Pater and by the House of Lords in Owens Bank v Bracco'"

Public policy
The scope of this exception is uncertain as there are few decisions on the refusal
to recognise or enforce a foreign judgment on the grounds of public policy.
One area where it would apply would be where the foreign judgment was
obtained in breach of an anti-suit injunction issued by the Grand Court, or was
inconsistent with a previous decision of the Grand Court in proceedings between
the same parties."

58

(1890) 10 QBD 295 (CA) applying Abouloff v Oppenheimer (1882) 10 QBD (CA).

59

[1990] i QB 335.

60

[1992] 2 AC 443.

61

Vervaeke Smith [1983] 1 AC 145; ED&F Man v Haryanto (No 2) [1991] 1 Lloyd's Rep 429
(CA).

T

167

The Cayman Islands

I
I

at

Tor
on
be
uld
ach

ugh
the

reed
case

were

I
I

Another public policy issue arises in the context of actions for the enforcement,
either directly or indirectly, of a penal''' or revenue" law of a foreign country,
which the Grand Court will not entertain. It follows that the court cannot
entertain an action for the enforcement of a foreign judgment ordering the
payment of taxes, fines, or penalties.
Penalty in this sense normally means a sum of money payable to the state, and
not to a private claimant, so that an award of punitive or exemplary damages is
not necessarily 'penal' for these purposes."
Cayman courts, like English courts, generally demonstrate a degree of antipathy
towards awards of punitive damages of the type sometimes awarded by juries in
the United States, since Cayman courts generally award damages on a
compensatory basis only. 'Exemplary damages' or 'punitive damages' are not
generally available in the domestic legal system of the Cayman Islands, except
in very limited, exceptional circumstances.
It is arguable, therefore, that a foreign judgment containing an award of punitive
damages would be unenforceable in the Cayman Islands on public policy or
natural justice grounds, although the point has not been specifically considered
or decided by a Cayman court.

1 Jet

fusal

w

was
Neen

There is Australian authority, however, to support the proposition that if the
purpose of a damages award made by a foreign court is to punish the defendant,
it may be unenforceable on public policy grounds." An award of multiple
damages might also be regarded as penal at common law, and therefore
unenforceable as a matter of public policy."

Natural justice
This exception applies where there was some irregularity in the foreign
proceedings which has prevented either notice to the judgment debtor or has
62

63

64

65

ep 429

66

Huntington v Attrill [1883] AC ISO, PC; US v Inkley [1989] QB 255, CA; Stutts v Premier
Benefit Capital Trust [1992-1993] CILR 605; Marada Global Corp v Marada Corp [1994-95]
CILR 546; Kalley v Manus [1999] CILR 566; and TMSF v Wisteria Bay Limited [2007] CILR
310 per Smellie CJ, Grand Court.
Government of India v Taylor [1955] AC 491. See also Wahr-Hansen
Company Limited [2007] CILR 55 per Henderson J, Grand Court.

v Compass

Trust

See SA Consortium General Textiles v Sun & Sand Agencies Ltd [1978] QB 279 at 309 per Lord
Denning MR, by way of obiter dicta.
See Schnabel v Lui [2002] NSWSC IS at para 177.
See Jones v Jones (1889) 22 QBD 425.

Part III - Enforcement of Foreign Judgments

168

;

prevented the judgment debtor from having an opportunity to present his case
before the foreign court or has otherwise amounted to a breach of natural
justice. The classic exposition of relevant principle is contained in the judgment
of Lord Lindley in Pemberton v Hughes" where he said:

j

If a judgment is pronounced by a foreign court over persons within its jurisdiction
and in a matter with which it is competent to deal, English courts never investigate
the propriety of the proceedings in the foreign court, unless they offend against
English views of substantial justice."

~

In Adams v Cape Industries plc69 the Court of Appeal reaffirmed that the
appropriate test was whether the foreign proceedings offended against the
domestic court's notion of 'substantial justice' and in that case included a
requirement that damages should not be fixed subjectively by or on behalf of the
plaintiff."

67

[1899] 1 Ch 781(CA).

68

Ibid, at 790.

69

[1990]Ch433(CA).

70

Ibid, at 567.

T

T
ase
iral
lent

tion
gate
iinst

CHAPTER 13
THE ISLE OF MAN

the
the
d a
'the

Robert Colquitt

13.1
13.2
13.3
13.4
13.5
13.6

Introduction
Enforcement by registration
Enforcement at common law
Issue of execution
Enforcement of execution
Future developments

169
170
172
174
175
176

13.1 INTRODUCTION
This chapter provides an outline of the possible avenues of recovery for parties
who have obtained judgment outside the Isle of Man ('a foreign judgment')
against Isle of Man based companies, trusts or individuals or against a party
who has assets within this jurisdiction. It sets out details of the three methods of
recovering money owed under a foreign judgment:
(1) statutory registration of the foreign judgment;
(2) commencement of a common law action in the Isle of Man based on the
existence of foreign judgment;
(3) commencement of a common law action in the Isle of Man based on the
original cause of action that is the subject matters of the foreign judgment.
The final stage in the enforcement of a foreign judgment is the enforcement of
the execution that will hopefully be obtained in the Isle of Man. This chapter
Robert Colquitt is an Advocate and Director of Litigation at Cains in the Isle of Man.

Part III - Enforcement of Foreign Judgments

170

briefly explains how and when execution is obtained in the Isle of Man and
what methods are available to enforce the execution.

i

l
~

13.2 ENFORCEMENT BY REGISTRATION
Where a party ('the judgment creditor') has obtained a foreign judgment for a
debt or definite sum of money he may be able to enforce that judgment in the
Isle of Man in one of three ways. Firstly, it may be possible to commence
registration proceedings under the Judgments (Reciprocal Enforcement) (Isle of
Man) Act 1968 (the Act). Secondly, if the registration procedure is not
available, the judgment creditor may commence a common law action within
the Isle of Man based on the foreign judgment. Thirdly, where neither of the
above methods is available or appropriate, the judgment creditor may seek to
recover the money owed under the foreign judgment indirectly, by commencing
a fresh action in the Isle of Man based on the underlying cause of action that
gave rise to the foreign judgment.

Statutory registration proceedings
The Act makes provision for the enforcement in the Isle of Man of judgments
given in prescribed 'superior courts' of countries which afford reciprocal
treatment to judgments given in the Isle of Man. At present, there are only seven
such countries:
(1) the United Kingdom;
(2) Guernsey;
(3) Jersey;
(4) Surinam;
(5) Israel;
(6) Italy;
(7) the Netherlands.
The prescribed 'superior courts' of these countries are listed in Appendix 13.1
(below).
A foreign judgment of a superior court ('the original court') can be registered
only if it is final and conclusive and there is payable thereunder a sum of money
(not being a sum in respect of taxes, fines or similar penalties). It should be
noted that a UK judgment in respect of VA TI can be registered in the Isle of
Man. A foreign judgment will be treated as final and conclusive notwithstanding
Value added tax.

~- '" -v-

"T'"
I
md

The Isle of Man

that an appeal may be pending. Registration will not be permitted, however, if,
at the date of the application for registration:
(1)
(2)
~

)r a
the
nce
! of
not
:hin
the
c to

171

the foreign judgment has been wholly satisfied; or
the foreign judgment could not be enforced by execution in the country of
the original court.

An application for the registration of a foreign judgment must be made by
petition and supported by affidavit. The affidavit must include a statement by
the deponent that to the best of his information and belief the foreign judgment,
if registered, is not liable to be set aside (see below). There must be exhibited to
the affidavit a certified copy of the foreign judgment, authenticated by the seal
of the original court and, where the foreign judgment is not in English, a
certified translation of the foreign judgment.

:m~

that

ents
Deal
.ven

13.1

tered
oney
d be
le of
iding

The application for registration is made ex parte to the High Court and will be
heard by a Deemster in Chambers who will normally make an order nisi for
registration. However, the Deemster may direct that notice of the petition be
given to the party against whom the foreign judgment was given ('the judgment
debtor'). Once the order nisi is made, execution will not issue until after the
expiration of a period fixed by the court within which an application may be
made by the judgment debtor to set aside the registration.
After the order nisi is made, the judgment creditor must serve a notice of the
registration on the judgment debtor at his last known residence or place of
business by recorded delivery with certificate of delivery or in such other
manner as the presiding Deemster may direct. The person serving the notice of
registration must, within three days of service, indorse the notice with the date
on which service was effected together with the date on which such
endorsement was made. If this is not done, the judgment creditor will not be at
liberty to obtain execution on the registered judgment without the leave of the
court.
After the order nisi is made, the judgment debtor may apply within the time
prescribed by the High Court to set aside the registration on any of the following
grounds:
(1)
(2)

2

that the original court did not have jurisdiction in the circumstances of the
case;
that he did not receive notice of the original proceedings in sufficient time
for him to defend and did not appear;
A Deemster is a judge of the courts of the Isle of Man.

"T··

C

''c"

172

(3)
(4)

;
~

Part III - Enforcement of Foreign Judgments

that the judgment was obtained by fraud; or
that enforcement of the judgment would be contrary to public policy in the
Isle of Man.

The first of these is the ground most commonly invoked to set aside registration
and the Act, section 4(2) provides an exhaustive list of situations where the
original court is deemed to have had jurisdiction (see Appendix 13.2 (below) for
the text of section 4(2)). If the foreign judgment cannot be brought within the
terms of section 4(2) it is not registrable because, for the purposes of the Act, it
would be a foreign judgment of a court which had no jurisdiction in the
circumstances of the case.
A foreign judgment once registered shall, for the purposes of execution, be of
the same force and effect as if the foreign judgment had been a judgment
originally given in the High Court and entered on the date of registration.
If that period expires and no application to set aside has been made (or no
application for an extension of time to set aside has been made) the order for
registration becomes absolute and execution in the Isle of Man may be applied
for by the judgment creditor.
Finally, it must be noted that if the registration procedure under the Act applies
to a judgment, no proceedings for the recovery of a sum payable under that
judgment, other than by way of registration, will be entertained by the High
Court.

13.3 ENFORCEMENT AT COMMON LAW
If the registration procedure under the Act is not available, the judgment creditor
may commence a default action in the High Court, on the debt created by the
foreign judgment, and claiming the amount owed under the foreign judgment,
provided that such judgment is final and conclusive and is not in respect of
taxes, fines or similar penalties or contrary to public policy. This method of
giving effect to a foreign judgment is not dependent on the reciprocal treatment
of Isle of Man judgments in the foreign country.
The procedure for commencing a default action in the Isle of Man is relatively
straightforward. The judgment creditor (who will be the plaintiff must issue and
serve a summons and statement of claim, together with acknowledgement of
service forms on the judgment debtor (the defendant). This service must be
effected by the Coroner who is the process server and judgments enforcement
officer in the Isle of Man. However, if the defendant is resident outside the Isle

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The Isle of Man

173

of Man, it will be necessary to apply to the High Court for leave to serve the
proceedings out of the jurisdiction. In the event that such service cannot be
effected in one of the prescribed manners, it may be open to the plaintiff to
apply to the court for an order for substituted service.
The statement of claim (which briefly sets out the nature of the plaintiffs claim)
will include a claim for the amount adjudged to be due by the defendant to the
plaintiff under the terms of the foreign judgment of the original court, together
with a claim for interest and costs. If the original court judgment is in a currency
other than sterling, the plaintiff may claim in that currency.
If the defendant fails to acknowledge service of the summons and statement of
claim or fails to serve his defence within the prescribed time, the plaintiff may
apply for judgment in default. This application is made administratively to the
Chief Registrar who will within seven working days enter judgment in the Isle
of Man and issue execution. The execution may be stayed, however, if the
parties have agreed that the judgment debt will be discharged by instalments.
If the defendant serves a defence within the prescribed time the plaintiff will be
required to prove his claim to the satisfaction of the High Court. The defendant
may be able to defend the action by claiming, inter alia, that the original court
had no jurisdiction in the circumstances of the case (ie that the defendant did not
submit to the jurisdiction of the original court), that the judgment was obtained
by fraud or that enforcement of the judgment would be contrary to public policy
in the Isle of Man.
If the claim is for a sum of £5,000 or less it will be dealt with by the Isle of Man
small claims court. A claim for a greater sum may be referred to the small
claims court with the agreement of the parties.

lite
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: Isle

Common law action based on the original cause of action
Where the judgment creditor has obtained a foreign judgment which is neither
registrable under the Act nor enforceable by a common law action based on the
judgment, he may wish to commence a new action in the Isle of Man based on
the original cause of action. Although this course of action may result in the
judgment creditor recovering the money owed under the foreign judgment, it is
entirely independent of that judgment and is based solely on the cause of action
which the judgment creditor has against the judgment debtor (eg breach of
contract) .
Where the amount sought to be recovered is a debt or definite sum of money the
judgment creditor may commence a default action in the Isle of Man against the

174

Part III -Enforcement of Foreign Judgments

judgment debtor (as above). However, where the amount sought to be recovered
is unquantified (eg a claim for damages) the judgment creditor must commence
an ordinary civil action (as above) and will generally be required to serve a
statement of case (the document which outlines his case in detail). In either case,
if the judgment debtor disputes the claim, the action will continue through the
normal procedural steps (defence, discovery, interlocutory motions, etc) with
the obvious delays and costs consequences. It is important to note that there is
no Manx equivalent to the English summary judgment procedure.
Whether the proceedings are by way of default action or ordinary civil action,
the judgment creditor should ensure that the Isle of Man is the appropriate
jurisdiction to deal with the matter. If not, it will be open to the judgment
debtor, if he contests the proceedings, to raise the defence of lack of personal
jurisdiction and/or forum non conveniens (ie that the Isle of Man is not the most
suitable forum for trying the action).

13.4 ISSUE OF EXECUTION
When the judgment creditor has successfully registered the foreign judgment or
obtained a judgment of the High Court pursuant to one of the above methods, he
must then obtain execution on that judgment.
Under the statutory registration procedure, execution may issue once the order
for registration is made absolute. In order to obtain execution on a registered
judgment, the judgment creditor must lodge with the General Registry an
Affidavit of service of the notice of registration and of any order made by the
court in relation to the registered judgment. The affidavit must have exhibited to
it the certificate of delivery or other proof of service together with a copy of the
notice of registration duly indorsed.
In default action proceedings the judgment creditor may apply for execution
when applying for judgment. This involves making an application to the Chief
Registrar who will, within seven days, enter judgment and issue execution.
In the case of an ordinary civil action, the judgment creditor may apply for
execution at the time of applying for judgment, although if some form of
arrangement for satisfying the judgment has been agreed, he may postpone his
application for execution.

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13.5 ENFORCEMENT OF EXECUTION
The final stage in the enforcement of a foreign judgment is the enforcement of
the execution. The judgment creditor places the execution in the hands of the
Coroner (the judgments enforcement officer in the Isle of Man) who has the
power, subject to certain exceptions, to arrest and sell sufficient of the judgment
debtor's Isle of Man assets to satisfy the judgment debt and to inquire as to the
judgment debtor's means. The Coroner must keep the seized property under
arrest for a period of 28 days during which time the judgment debtor may make
arrangements to satisfy the debt. At the expiration of the 28-day period, the
property may be advertised for sale.
In the event that the Coroner cannot enforce the execution directly by arrest and
sale, the judgment creditor may enforce the execution indirectly by way of:
(1)

(2)
(3)

tor
, he

rder
ered
an
the
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'the

175

garnishee proceedings;
instalment order; or
attachment of earnings order.

Garnishee proceedings
The Coroner has the power to arrest the debts owing to the judgment debtor in
the hands of a third party and any money so recovered is deemed to have been
obtained from the judgment debtor. The exercise of this power does not require
a court order, although if the third party disputes the debt due to the judgment
debtor, it may be necessary (or more appropriate) to apply for an order, by way
of formal garnishee proceedings, directing the third party to pay the debt
directly to the judgment creditor.

Instalment order
tion
hief

for
1 of
: his

If the judgment debtor has an income, it is possible for either the judgment
debtor or the judgment creditor to apply to have the debt discharged by way of
instalments. Such an application will prevent execution from issuing, or if
already issued, will stay the execution so long as the instalments are maintained
as agreed. An application for the discharge of a judgment debt by instalments is
heard by a Deemster who will inquire as to the means of the judgment debtor
and make an order having regard to all the circumstances of the case.

Attachment of earnings order
Where the judgment debtor is an employee, the judgment creditor (or the
Coroner with the permission of the judgment creditor) may apply to the High

.......

····

,.-

r···
176

Part III - Enforcement of Foreign Judgments

Court for an order directing that the employer deduct from the judgment
debtor's earnings such sums as may be specified in the order. If the judgment
debtor opposes such an application, the High Court will only make an order if it
is satisfied that the judgment debtor has failed to comply with an instalment
order without cause and has the means to satisfy the debt within a reasonable
time by instalments deducted from his earnings.
Finally, if it can be shown that the judgment debtor, being an individual, has had
the means to pay and has 'refused or neglected or refuses and neglects' to pay,
the court may order the imprisonment of the debtor.

Other considerations and potential problems
Whenever contemplating any litigation, the prospective plaintiff should always
attempt to ascertain whether the prospective defendant has sufficient, or indeed
any, assets within the jurisdiction to satisfy any eventual judgment. For this
reason, it is advisable to instruct an inquiry agent to investigate the judgment
debtor's means before issuing any proceedings.
If the judgment creditor suspects that the judgment debtor may attempt to
remove or dissipate any or all of his assets in order to frustrate the enforcement
of a future judgment against him, the judgment creditor may apply to the court
for a Mareva' injunction restraining the judgment debtor from removing his
assets from the jurisdiction or otherwise disposing of or dealing with his assets.
If the judgment debtor is an Isle of Man company, it may be necessary to apply
to have the company liquidated to pay the debt. This process can be time
consuming and it is not possible for present purposes to be specific as to the
various issues that do or might arise should such action be necessary.

13.6 FUTURE DEVELOPMENTS
It is possible that further reciprocal arrangements will be entered into with other
countries. At the time of writing we are not aware of any such proposals.
The Isle of Man is likely to see introduced in 2009 a wholesale replacement of
the current rules of the High Court. It is not anticipated that this change will
impact materially on the law relating to the enforcement of foreign judgments.

3

So named after the decision in Mareva Compania Naviera SA v International Bulk Carriers SA
[1975] 2 Lloyd's Rep 209.

I

The Isle of Man

177

APPENDIX 13.1

1

JUDGMENTS (RECIPROCAL ENFORCEMENT)
(ISLE OF MAN) ACT 1968
List of Superior Courts
1. UNITED KINGDOM

s
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lS

It

to

nt
nt

House of Lords
Court of Appeal (in England and Wales)
High Court of Justice (in England and Wales)
Court of Session and the Sheriff (in Scotland)
Supreme Court of Judicature (in Northern Ireland)

•
•
•
•
•

Note: a judgment of the county courts in England and Wales may be registered
under the 1968 Act if it has been transferred to the High Court of Justice in
England and Wales pursuant to the County Courts Act 1984, section 106.

lis
2. GUERNSEY
,ly
ne
he

•
•

Royal Court sitting as an Ordinary Court or as a Full Court
Court of Appeal of Guernsey

3. JERSEY
•
•

Royal Court of Jersey
Court of Appeal Jersey

her
4. SURINAM
: of
",ill

sSA

•
•
•

Hof van Justitie van Surinam
Kantongerecht in het Eerste Kanton
Kantongerecht in het Derde Kanton

'T'~"
.. ".'

Part III - Enforcement ofF oreign Judgments

178

5. ISRAEL
•
•
•
•
•
•

Supreme Court
District Courts
Rabbinical Courts
Christian Religious Courts
Moslem Religious Courts
Druze Religious Courts

6. ITALY
•
•

Corte d' Appello
Tribunale

7. NETHERLANDS
•
•
•

Hoge Raad der Nederlanden
Gerechtshoven
Arrondissementsrechtbanken

8. NETHERLANDS ANTILLES
•
•
•

Hoge Raad der Nederlanden
Hof van Justitie der Nederlandse Antilles
Gerecht in Eerste Aanleg

I

The Isle of Man

179

APPENDIX 13.2
JUDGMENTS (RECIPROCAL ENFORCEMENT)
(ISLE OF MAN) ACT 1968
Section 4(2)
4 (2) For the purposes of this section, the courts of the country of the original
court shall, subject to the provisions of subsection (3) of this section, be deemed
to have had jurisdiction (a)

in the case of a judgment given in an action in personam (i)

if the judgment debtor, being a defendant in the original court,
submitted to the jurisdiction of that court by voluntarily
appearing in the proceedings otherwise than for the purpose of
protecting, or obtaining release of, property seized, or threatened
with seizure, in the proceedings, or of contesting the jurisdiction
of that court; or

(ii)

if the judgment debtor was plaintiff in, or counter-claimed in,
the proceedings in the original court; or

(iii) if the judgment debtor, being a defendant in the original court,
had before the commencement of the proceedings agreed, in
respect of the subject matter of the proceedings, to submit to the
jurisdiction of that court or of the courts of the country of that
court; or
(iv) if the judgment debtor, being a defendant in the original court,
was at the time when proceedings were instituted resident in, or
being a body corporate had its principal place of business in, the
country of that court; or
(v)

if the judgment debtor, being a defendant in the original court,
had an office or place of business in the country of that court
and the proceedings in that court were in respect of a transaction
effected through or at that office or place;

180

Part III - Enforcement ofF oreign Judgments

(b)

in the case of a judgment given in an action of which the subject
matter was immovable property or in an action in rem of which the
subject matter was movable property, if the property in question was
at the time of the proceedings in the original court situate in the
country of that court;

(c)

in the case of a judgment given in an action other than any such
action as mentioned in paragraph (a) or paragraph (b) of this
subsection, if the jurisdiction of the original court is recognised by the
law of the Isle of Man.

CHAPTER 14

GUERNSEY

John Greenfield and Alistair Wrench"

14.1
14.2
14.3
14.4
14.5

Enforcement
Enforcement at common law
Statutory enforcement
Methods of execution
Conclusion

181
182
185
189
191

14.1 ENFORCEMENT
It is first important to note the distinction between mere recognition of a foreign
judgment and its actual enforcement as helpfully set out in Dicey, Collins &
Morris, The Conflict of Laws,' As they explain 'It is plain that, while a court
must recognise every foreign judgment which it enforces, it need not enforce
every foreign judgment which it recognises', and there are many examples of
where a recognised judgment is not capable of enforcement, such as a judgment
dismissing a claim or counterclaim (unless it orders the unsuccessful party to
pay costs) or a declaratory judgment (one declaring the status of a person or a
title to a thing). However there are many instances where a foreign judgment is
capable of enforcement by the Guernsey court.
When it comes to issues of enforcement, as noted, Guernsey is not a member
state of either the European Union or European Economic Area, and is not a
John Greenfield is Head of the Litigation Department
Carey Olsen in Guernsey.
14th edn (London: Sweet & Maxwell, 2006), p 657.

and Alistair Wrench is a paralegal at

182

Part III - Enforcement of Foreign Judgments

signatory to the Brussels Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters' as amended (the Brussels
Convention), or the Lugano Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters' (the Lugano Convention).
i

I
~

Under the Judgments (Reciprocal Enforcement) (Guernsey) Law, 1957 as
amended" (JREGL) Guernsey is able to reciprocally enforce judgments only
with those countries with whom it has reached bilateral statutory
accommodation,' provided always that the judgment to be enforced is that of a
'superior court'.
However, given the scarce representation on the list of reciprocating countries,
and the global reach of Guernsey's finance industry, it is unsurprising that the
predominant method of enforcement is under the common law.

14.2 ENFORCEMENT AT COMMON LAW
In the event that the JREGL does not apply then the common law, which draws
heavily upon English precedent, prevails, whereby the judgment creditor must
sue on the foreign judgment itself and, if the matter is placed on the pleading list
then apply for summary judgment on the grounds that the defendant has no real
prospect of successfully defending the claim."
Considering the similarity in procedure then Dicey, Morris & Collins comment
in The Conflict of Law/ with regards to English common law prove just as true
of Guernsey when they say that 'The speed and simplicity of this procedure ...
mean that foreign judgments are in practice enforceable at common law much
more easily than they are in many foreign countries'.

2

27 September 1968.

3

16 September 1988.

4

See the Judgments (Reciprocal Enforcement) (Amendment) Law, 1994, and the Judgments
(Reciprocal Enforcement)
Ordinances dated 1973 to 1991 and Judgments (Reciprocal
Enforcement) Rules 1972 and 1975.

S

Reciprocating countries are England and Wales, Scotland, Northern Ireland, the Republic of
Italy, the Isle of Man, the Netherlands, the Netherlands Antilles, Surinam, Jersey and Israel, see
the Judgment (Reciprocal Enforcement) (Amendment) Ordinance 1991, No 1 and No 2.

6

Grant v Easton (1883) 13 QBD 302 (CA); Colt Industries Inc v Sarlie (No 2) [1966] 1 WLR
1287 (CA).

7

14th edn (London: Sweet & Maxwell, 2006), p 471.

T
I

Guernsey

of
iels
t of

as
nly
ory
)f a

183

Common law - in personam
It is essential to the recognition or enforcement in Guernsey of a foreign
judgment that the foreign court should have had jurisdiction according to
Guernsey rules of the conflict of laws which are themselves based along English
law principles. The Guernsey rules used to determine correct jurisdiction
therefore will be similar to those expounded by Buckley LJ in the case of
Emanuel v Symbon' as follows:
In actions in personam there are five cases in which the courts of this country will
enforce a foreign judgment: (1) where the defendant is a subject of the foreign
country in which the judgment has been obtained; (2) where he was resident in the
foreign country when the action began; (3) where the defendant in the character of
plaintiff has selected the forum in which he is afterwards sued; (4) where he has
voluntarily appeared; and (5) where he has contracted to submit himself to the
forum in which the judgment was obtained.

'ies,
the

Should these criteria be met and a foreign judgment be sued upon and placed in
the pleading lists then it is impeachable only in the following limited grounds:
aws
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<>

(1) the foreign court did not have jurisdiction to give that judgment; or
(2) judgment obtained by fraud (on the part of either the court of the party in
whose favour judgment was given);" or
(3) where enforcement would be contrary to public policy; or
(4) where the proceedings in which the judgment was obtained were contrary
to natural justice. 10
Failure to employ the JREGL where it would have been applicable is also likely
to be a successful defence, albeit a temporary one.

8

[1908] 1 KB 302.

9

A foreign judgment which has been obtained by fraud will not be recognised or enforced in
Guernsey. The judgment is impeachable whether the fraud was on the part of the court or on the
part of the successful party. It is immaterial that the fraud has already been investigated by the
foreign court, although in such a case the plea of fraud may involve a re-trial in Guernsey of the
matters adjudicated upon by the foreign court, and it is immaterial that the unsuccessful party in
the foreign proceedings refrained from raising the plea of fraud in those proceedings although
the facts were known to him at all material times.

10

A foreign judgment can be impeached if the proceedings in which the judgment was obtained
were contrary to natural justice. Proceedings are not regarded as having been contrary to natural
justice merely because the foreign court admitted evidence which was inadmissible under
Guernsey law, nor because of a mere procedural irregularity on the part of that foreign court,
provided that the unsuccessful party was given an opportunity to present his case. The objection
that the foreign proceedings were contrary to natural justice cannot be taken in Guernsey if it
could have been or was taken before the foreign court.

nents
irocal
lie of
el, see
WLR

184

Part 111- Enforcement of Foreign Judgments

In the absence of anyone or more grounds of impeachment, a judgment of a
foreign court which is final and conclusive on the merits is conclusive in
Guernsey between parties and privies as to any issues upon which it adjudicates.
It is not impeachable or examinable on the merits, whether for error of fact or of
law. However it is probable that a foreign judgment will not be recognised if it
shows in its face a perverse and deliberate refusal to apply generally accepted
doctrines of private international law.

Common law - in rem
A judgment in rem may be defined as the judgment of a court of competent
jurisdiction determining the status of a person or thing, or the disposition of a
thing, as distinct from the particular interest in it of a party to the litigation. It is
thus judgment vesting in a person the possession of or property in a thing, or
decreeing the sale of a thing in satisfaction of a claim against the thing itself, or
a judgment as to a status of a person. A judgment in rem pronounced by a court
of competent jurisdiction is conclusive and binding in Guernsey, not only
between parties and privies, as in the case of a judgment in personam, but
against all the world.
For actions in rem the question of jurisdiction is determined by the locus of the
assets concerned at the time of the proceedings. When relating to judgment in
rem relating to movables this means that a judgment will be recognised and
enforced if the movables were situated in the foreign country concerned at the
time of the proceedings. In the case of immovables, it means more simply that
the foreign judgment will be recognised if the removables are situated in the
relevant foreign country. \I Again it is much more rare that enforcement of an
action in rem will be sought abroad for reasons such as the immovability of
realty. This is as opposed to recognition.

Judgments given in default
While this is an area that has received little substantive argument within the
Guernsey courts it would seem likely that it is not possible to directly enforce
default judgments under Guernsey common law, any more than it is in England
and Wales." As Lord Selbourne ruled:"

11

See Dicey, Morris & Collins, The Conflict oj Laws, 14th edn (London: Sweet & Maxwell,
2006), pp 611 et seq.

12

For further discussion on this point see Dicey, Morris & Collins, ibid, pp 588 et seq.

13

Sirdar Gurdyal Singh v Rajah of Faridkote [1894] AC 670 at 683-684 (PC).

Guernsey

185

a decree pronounced in absentem by a foreign court, to the jurisdiction of which the
defendant has not in any way submitted himself, is by international law an absolute
nullity. He is under no obligation of any kind to obey it; and it must be regarded as
a mere nullity by the courts of every nation, except (when authorised by special
local legislation) in the country ofthe forum by which it was pronounced.

However, while a default judgment might not prove a cause of action in and of
itself, it can be used as evidence in a common law application for summary
judgment.

Methods of executing judgment
For details as to how a successful application for enforcement of a foreign
judgment under common law can be executed, then please see material section
below.

Power to make judgments unenforceable if there is no
reciprocity
It is, however, important to note that judgments by not all foreign courts need be
enforced. If, for example, it appears to the States that the recognition and
enforcement accorded by another court to judgments given by the Royal Court
are substantially less favourable than those accorded by the Royal Court to that
court then the States may by ordinance decide that no proceedings for the
recovery of any sum alleged to be payable under a judgment of a court of that
country shall be entered in any Guernsey courts. The States may also revoke any
previous ordinance made.

14.3 STATUTORY ENFORCEMENT
As mentioned above the relevant legislation covering the enforcement of foreign
judgments in Guernsey is the JREGL.
Reciprocating countries are stipulated by Ordinance, and the necessary
Ordinance validating and acknowledging the bilateral agreement for reciprocity
in judgments lists which courts of a particular jurisdiction are considered
superior courts, for example, insofar as England and Wales are concerned, 'the
House of Lords, the Court of Appeal and the High Court of Justice'.

Part IIl- Enforcement of Foreign Judgments

186

This view was held in the Jersey case of Re Hardwick" in accordance with the
Reciprocal Enforcement (Jersey) Law, 1960 and followed in Guernsey in
Highseal Windows Limited v Gary Martel and Graham Carroll t/a The
Conservatory Centre." that the English county courts are not a superior court
for the purposes of the JREGL. Several commentators including Advocate
Dawes in his work Laws of Guernsey have pointed out that this position might
now be somewhat outdated considering the unlimited jurisdiction more recently
enjoyed by the county courts when it comes to issues of, for example, contract
and tort. However prior to this decision being reconsidered, for such situations
the Guernsey court will adopt the common law position in England before
statute intervened and the plaintiff is entitled to sue on the foreign judgment in
the Guernsey court as explained in the above section dealing with common law.
A judgment given on appeal by a superior court from a court which is not a
superior court, is not ajudgment to which the JREGL will apply.

Jurisdiction
Whether the original court will be deemed to have had jurisdiction will vary
according to whether the judgment was given in an action in personam; in an
action in respect of immovable property or an action in rem where the subject
matter was movable property.
Where the action was in personam the original court will have had jurisdiction
if:
(1)

the judgment debtor submitted to the jurisdiction or was plaintiff or
counterclaimed in the proceedings, or was resident in (or being a body
corporate, had its principal place of business in) the jurisdiction; or
(2) there was a prior agreement between the parties submitting to the
jurisdiction of that court, or the courts of that country; or
(3) the judgment debtor has an office, or place of business in the country and
the proceedings relate to a transaction effected through, or at that office.
Where the action was in respect of immovable property/an action in rem where
the subject matter was movable property, the original court have had jurisdiction
if the property in question was in the country during the time of the proceedings.

14

[1995] JLR 245.

15

2 January 2001, unreported.

Guernsey

1

t

t
Y
:t

s
e

187

In all other cases jurisdiction will be conferred in an action where the
jurisdiction of the original court is recognised by the laws of Guernsey.

Does the JREGL apply?
Providing the original superior court had jurisdiction under the JREGL, the
judgment must be; final and conclusive (notwithstanding any pending appeal);
for a definite sum of money (not related to taxes, or other similar charges, fines
or penalty) and not more than six years old (from the date the judgment was
given and if there was an appeal from the date of the last judgment).

n

a

A relevant action in personam will not, for the purposes of the JREGL, include
any matrimonial cause or matter, administration of Estates, insolvency, winding
up of companies, lunacy, or guardianship of infants. 16

Application to register judgment in Guernsey
Once it is confirmed that a foreign judgment can apply in Guernsey, an
application will need to be made for leave to register the judgment in Guernsey
so that it may then be enforced in Guernsey (ie the Sheriff can arrest assets to
satisfy the judgment in the normal way).

in

This application for leave to appeal is made ex parte to the Ordinary Division of
the Royal Court and must be supported by an affidavit" exhibiting a certified
copy of the foreign judgment and must state that, to the best of the applicant's
knowledge or belief that:

Dr

ly

(1)
(2)

The judgment creditor is entitled to enforce the judgment; and
The balance of the judgment is still outstanding (ie all, or part); and

lle

(a)
(b)
(c)
(d)
re

the judgment is enforceable within the originating jurisdiction; and
the judgment is not liable to be set aside; and
the amount of any interest due; and
any foreign currency judgments must state a Guernsey equivalent by
reference to the rate of exchange at the date of the judgment.

Dn

~s.

Notice of the application needs to be given to the Court by at least noon the day
before the day of the sitting.

16
17

The JREGL, s 1(2).
Sworn and dated before, then signed by a Notary Public.

Part III - Enforcement of Foreign Judgments

188

In the case of a part satisfied judgment, registration will only be given for an
amount outstanding" however, the judgment can be registered for the reasonable
costs of and incidental to registration.
The order must also state the period during which the debtor can apply to set
aside the registration as set out below.

Conditions the court may attach to an order for registration
Under the JREGL, section 5.5 the court may, inter alia, make conditions:
(1)
(2)
(3)
(4)
(5)

For provision for security for costs to be paid by the applicant;
For prescribing matters to be proven and the manner of proof;
For service of notice on the judgment debtor;
Fixing the time within an application to set aside must be made;
Prescribing the methods by which questions relating to the effect of the
original judgment shall be determined.

Effect of registration
Subject to the provisions relating to setting aside judgments, a registered
judgment shall be of the same force and effect as if the judgment had been given
in the Royal Court of Guernsey on the date of registration, so that:
( 1)
(2)
(3)

Proceedings may be taken;
Interest will run; and
The Royal Court can control execution of the registered judgment

Judgment debtor's right to set aside the registration
Notice in writing of the registration of the judgment must be served on the
judgment debtor by the judgment creditor through means of HM Sergeant and it
must state the full particulars of the registered judgment (including details of the
judgment creditor) and the fact that a registration order has been made.
The judgment debtor will then have 14 days from the date of service of the
notice of registration to apply to have the registration set aside." Execution will
not be permitted until after that time has elapsed. This period of 14 days may be

18
19

The JREGL, s 4(4).
The Judgments (Reciprocal Enforcement) (Amendment) (Guernsey) Rules, 1975.

T
I

Guernsey

189

r

extended by an amount prescribed by Ordinance" in the case of the judgment
debtor not being present in the Bailiwick, or to a fixed period of 60 days where
notice was served by substituted service.
Execution will not be permitted if an application to set aside can, or has been
made. The application to set aside is made by way of summons supported by an
affidavit and must satisfy the Royal Court that an appeal against the judgment is
pending, or to be brought. Further to the JREGL, section 6(1)(a) the registration
will then be set aside if, inter alia, it can be shown that:
(1)

(2)
(3)

e

:d

(4)
(5)
(6)

The JREGL does not apply to the judgment; or
The original Court had no jurisdiction; or
The judgment debtor did not receive sufficient notice of the original
proceedings to enable him to defend and did not appear; or
The judgment is fraudulent; or
contrary to public policy in Guernsey; or
The applicant does not have the right to enforce the judgment vested in
him.

Further by section 6( 1)(b) the court may set aside the registration if satisfied
that:

:n

the matter in dispute in the proceedings in the original court had previously to the
date of the judgment in the original court had been the subject of a final and
conclusive [as well as presumably inconsistent] judgment by a court having
jurisdiction in the matter.

Alternatively, the application may be adjourned until the appeal has been
disposed of in the original court.

he
Iit
:he

the
vill
be

As set out above, subject to the provisions relating to setting aside judgments, a
registered judgment shall be of the same force and effect as if the judgment had
been given in the Royal Court of Guernsey on the date of registration. The
Royal Court can therefore control execution of the registered judgment from the
date of registration. For enforcing a registered judgment see below section on
enforcement of judgments in Guernsey.

20

As Advocate Dawes set out in Laws of Guernsey 'If the judgment debtor is absent from the
Islands of Guernsey, Herrn and Jethou the period of 14 days is increased according to where in
the world the judgment debtor is. The period is fixed by reference to the (now repealed but
apparently still relied upon) 1936 Ordonnance au sujet des terrnes a ecrire ... Thus, if the
judgment debtor is in Jersey the period is six days, eight days if in Britain but 180 days if in the
South Sea Islands. For reciprocal enforcement purposes the 14 day period is extended by only
half of the relevant terrne a ecrire'.

Part III -Enforcement of Foreign Judgments

190

14.4 METHODS OF EXECUTION
Once the permitted period for the judgment debtor to make an application to set
aside the registration has passed, the judgment creditor may make an ex parte
application to the court, which may then grant leave to enforce the registered
judgment. The court will however not give its consideration to the enforcement
of the judgment unless the application is supported by the correct proof of
service as follows:
(1)
(2)
(3)

Personal service within the jurisdiction - a certificate of service by HM
Sergeant in prescribed form.
Personal service outside the jurisdiction - an Affidavit of service in
prescribed form.
Substituted service by a newspaper advertisement - a copy of an issue of
the relevant newspaper.

Should the judgment creditor want a certified copy of the judgment and a
certificate of the particulars of the action, he may make an application with an
accompanying fee to the Bailiff who will direct the Greffier to issue them.
A judgment, whether registered (under the JREGL) or summary (under common
law), can be enforced against a debtor's personalty and realty.

Personalty
Goods can be arrested and on application sold through the agency of HM
Sheriff. If there are numerous creditors a procedure called 'Detastre' may be
employed to realise all the debtor's non-excluded personalty. Wages can also be
arrested.

Realty
Judgment can also be registered against the debtor's realty subject to any prior
charges. This method has the advantage of affording some priority. Realisation
of the realty can be forced by a procedure called 'Saisie'. Care should be taken,
however, by a judgment creditor in adopting this approach since, once the
decision to enforce against realty has been made, all rights to enforce against
personality are lost.

Guernsey

191

14.5 CONCLUSION
In conclusion then we can see that in a limited number of countries it is possible
to enforce the judgment of foreign superior courts through the JREGL while in
all other cases a relatively simple and straightforward common law solution,
based very closely on the English precedent, prevails.
The effect of the JREGL is restricted by the definition of a relevant action in
personam; the need to prove the jurisdiction of the original Court and the types
of judgment that can be registered. However, taking these limitations into
account, it can often be a useful tool for judgment creditors, who have obtained
judgment outside Guernsey and who have good grounds to believe that there are
valuable assets within Guernsey, for enforcing that judgment in Guernsey.

r
n
I,

e
st

CHAPTER 15
JERSEY

Mike Cushing and David Benest'

15.1
15.2
15.3

Introduction
Statutory enforcement
Customary law rules

193
194
200

15.1 INTRODUCTION
In the recent case of IMK Family Trust.' Deputy BailiffBirt said this:
We consider that 'enforcement' of a foreign judgment means the situation where
the judgment creditor comes to [the Royal Court] and requests that [it] give effect
to the judgment in Jersey, either by registration ... or by giving a judgment in
identical form to the foreign judgment without reconsidering the merits, which can
then be enforced against the debtor here in Jersey in the same way as any other
Jersey judgment.'

We thus consider the provisions for statutory registration and, where such
remedy is not available, the 'enforcement' of a foreign judgment at common or
customary law.

Mike Cushing and David Benest Me partners in the Litigation and insolvency
Appleby's Jersey office.
[2008] JRC 136.
2

Ibid, at para 62.

Department

at

194

Part III - Enforcement of Foreign Judgments

15.2 STATUTORY ENFORCEMENT

~

As a general rule, foreign judgments cannot be directly enforced in Jersey and it
is necessary for the holder of a foreign judgment to commence fresh
proceedings before the Royal Court of Jersey to seek to enforce his rights in
Jersey.
The principal exception to this general rule is where the Judgments (Reciprocal
Enforcement) (Jersey) Law 1960 (the 1960 Law) applies. Statutory provision is
also made in Jersey for the recognition and enforcement of certain foreign
matrimonial orders (under the provisions of the Recognition of Divorces and
Legal Separations (Jersey) Law 1973 and the Maintenance Orders (Facilities for
Enforcement) (Jersey) Law 2000) and for the enforcement of foreign arbitral
awards under the provisions of the Arbitration (Jersey) Law 1998.

The 1960 Law - registration of a foreign judgement
The 1960 Law makes provision for the registration by the Royal Court on the
application of the judgment creditor, of certain foreign judgments. Once
registered (and provided that the registration is not set-aside), the effect is that:
(1) proceedings may be taken in Jersey on the registered judgment; (2) the
Royal Court will have the same control over the execution of the registered
judgment; and (3) the registered judgment shall be of the same force and effect
in Jersey, as if the judgment was a judgment of the Royal Court entered on the
date of registration.
The registration provisions under the 1960 Law are limited to judgments of the
superior courts of countries which have been designated as reciprocating
countries. The superior courts to which the 1960 Law applies are: the House of
Lords, Court of Appeal and the High Court of England and Wales; the Court of
Session and the Sheriff Court of Scotland; the Supreme Court of Judicature of
Northern Ireland; Her Majesty's High Court of Justice of the Isle of Man
(including the Staff of Government Division); and the Court of Appeal and
Royal Court of Guernsey.
Provision is made in the 1960 Law for orders to be made by Jersey's legislature
to extend the scope of the 1960 Law to judgments of the superior courts of other
reciprocating jurisdictions. As at the date of writing the authors are not aware of
any proposals for the 1960 Law to be extended to other territories.
The 1960 Law does not apply to all judgments of the superior courts of the
reciprocating countries. Registration will only be ordered by the Royal Court if
the following conditions are met: the judgment must be: (1) final and

r
I
I

I

Jersey

195

I

I

conclusive; (2) it must be a judgment under which a sum of money is payable;
and (3) the foreign court giving the judgment must have had appropriate
jurisdiction. Certain matters are therefore noteworthy:
(1)

what amounts to a final and conclusive judgment
as between the parties was considered by the Royal Court in In the Matter
of Bells Application' in relation to an application for the registration of a
summary judgment on a debt obtained in the English High Court.
'Final and conclusive':

Following the position adopted in England under the Foreign Judgments
(Reciprocal Enforcement) Act 1933, the Royal Court held that an
application for registration of a foreign judgment for the recovery of a debt
cannot be brought unless the judgment finally and conclusively (subject to
any appeal to a higher court) settles the existence of the debt so as to
become res judicata between the parties. In the instant case the Royal
Court went on to conclude that a summary judgment of the English High
Court was final and conclusive and therefore capable of registration under
the 1960 Law. The fact that a judgment may be subject to or capable of
appeal in the country of the original court does not mean that the judgment
is not final and conclusive. Such a judgment is, therefore, capable of
registration under the 1960 Law. The 1960 Law, Article 7(1) does,
however, give power to the Royal Court, on the application of a judgment
debtor, either to set aide the registration of a judgment or adjourn an
application to set aside the registration for such period as appears to the
Royal Court sufficient to enable the judgment creditor to take the
necessary steps to have any pending or intended appeal disposed of in the
country of the original court.

:l
t

e

(2)

re
er
of

The judgment will not be a judgment of a superior court if it is a judgment
given on appeal from a court which is not a superior court. In Re
Hardwick' the Royal Court decided that a judgment obtained in an English
county court was not capable of registration under the 1960 Law, despite
the fact that the county court proceedings had, before the date of the
application for registration of the judgment in Jersey, been transferred to
the English High Court for enforcement.

(3)

The judgment must be one for a sum of money which has not been wholly
satisfied. Where, therefore, the judgment is in respect of diverse matters, so
that only some of the matters contained in the judgment are capable of

rle

if

3

rld

4

[1995] JLR 23.
[1995] JLR 245.

Part III - Enforcement

196

of Foreign Judgments

registration under the 1960 Law, registration may be ordered to the extent
of those matters alone (Article 4(5».
(4)

The judgment must be capable of being enforced by execution in the
country of the foreign court.

(5)

The judgment must not be in respect of taxes or other charges of a like
nature or in respect of a fine or other penalty. This statutory provision
reflects the Jersey customary law rule that the Jersey court will not enforce
5
the penal and revenue laws of another state - In Re Bamford.

(6)

The application for registration must be made within six years from the
date of the judgment of the foreign court. Where there has been an appeal
in the country of the original court in respect of the judgment, the six-year
period runs from the last judgment given in the proceedings (Article 4(1».

Making the application for registration
The procedure for making an application to the Royal Court for the registration
of a foreign judgment under the 1960 Law is governed by the Judgments
(Reciprocal Enforcement) Rules 1961 (the Rules).
The application for registration must be made by summons with an affidavit in
support (Rule 4). The Rules expressly provide that on an application for
registration, the Royal Court may order the judgment creditor to provide
security for the costs of the application for registration and for any proceedings
which may subsequently be brought for the setting aside of the registration
(Rule 5).
The application for registration may be made ex parte. The supporting affidavit
must:
(1)
(2)
(3)

5

exhibit a certified copy of the judgment issued by the original court and
authenticated by the seal of the original court;
exhibit a translation into English where appropriate;
state to the best of the information and belief of the maker of the affidavit
that:

[2002] JLR N[34].

Jersey

ent

(a)
(b)

the
(c)
(d)

like
aon
irce

197

the applicant is entitled to enforce the judgment;
as at the date of the application for registration the judgment has not
been wholly satisfied and what amount of the judgment remains
unsatisfied;
the judgment is capable of enforcement by execution in the country
of the original court; and
if the judgment were to be registered, the registration would not be, or
be liable to be, set aside under the provisions of the 1960 Law;

(4)

the
peal
vear
l))

uion
Lents

-it in
l for
ivide
lings
ation

t and

idavit

specify the amount of interest (if any) which has become due under the law
of the country of the original court as at the date of the application for
registration;
(5) where the judgment sum is expressed in a foreign currency, state the
amount of the sum in the currency of Jersey at the exchange rate prevailing
at the date of the judgment;
(6) state the full name, title, trade or business and the usual or last known
place of abode or of business of both the judgment creditor and the
judgment debtor; and
(7) where only some of the provisions of the judgment are capable of
registration under the 1960 Law, state the provisions in respect of which
registration of the judgment is sought.
Where registration of the foreign judgment is ordered, the judgment creditor
must serve notice on the judgment debtor (either by personal service within the
jurisdiction of the Royal Court or in accordance with the applicable rules for
service out of the jurisdiction) providing full details of the judgment registered,
the judgment creditor's name and address for service and stating the right of the
judgment debtor to apply to the Royal Court to have the registration set aside.
The order for registration of the foreign judgment will specify the period within
which notice of any application to set aside the registration must be given.

Setting aside registration of the judgment
Any judgment registered under the 1960 Law is not capable of enforcement in
Jersey until after the expiry of the period specified by the Royal Court for the
making by the judgment debtor of any application to set aside the registration.
The Rules further provide that if an application is made to set aside the
registration of a judgment, the judgment shall not be enforceable in Jersey until
the application to set aside has been disposed of.
An application to set aside the registration of a judgment must be made by
summons with an affidavit in support. The 1960 Law provides that on an
application by the judgment debtor to set aside the registration of a judgment,

Part III - Enforcement

198

of Foreign Judgments

r
!

the registration of the judgment must be set aside where the Royal Court is
satisfied that:
(1)
1
j

~

(2)

(3)
(4)
(5)
(6)

the judgment is not one to which the 1960 Law applies or the judgment
creditor has not complied with the procedure for registration of the
judgment;
the judgment debtor did not (even if the proceedings were properly served
in accordance with the law of the foreign court) receive notice of the
proceedings in the foreign court in sufficient time to enable him to defend
those proceedings and did not appear in those proceedings;
the judgment was obtained by fraud;
the enforcement of the judgment would be contrary to public policy in
Jersey;
the person applying for registration in Jersey did not have the rights which
are sought to be enforced in Jersey under the foreign judgment; or
the foreign court did not have jurisdiction (as to which see below).

The 1960 Law provides that the registration of a foreign judgment may be set
aside where the Royal Court is satisfied that the judgment relates to a dispute
which had previously to the date of the judgment in the foreign court been the
subject of a final and conclusive judgment by a court having jurisdiction in the
matter ie that the dispute to which the judgment of the foreign court relates was
res judicata at the time of the foreign court's judgment. As already stated, the
Royal Court may also set aside the registration of a judgment in circumstances
where an appeal is pending in the foreign court or the Royal Court is satisfied
that the personal applying to set aside the registration is entitled to and is
intending to appeal against the judgment.

Jurisdiction of the foreign court
As set out above, the 1960 Law provides that the Royal Court must, on the
application of the judgment debtor, set aside the registration of any judgment in
relation to a dispute where the foreign court did not have jurisdiction.
(1)

In the case of a judgment given in an action in personam, the foreign court
will be deemed to have had jurisdiction only if:
(a)

the judgment debtor had submitted to the jurisdiction of the foreign
court by voluntarily appearing in the proceedings other than to seek
the release of property seized or threatened with seizure in those
proceedings or to contest the jurisdiction of the foreign court;
(b) the judgment debtor was a plaintiff in the foreign proceedings;
(c) the judgment debtor counter-claimed in the foreign proceedings;

Jersey
(d)

(e)

(f)

199

prior to the commencement of the foreign proceedings the judgment
debtor had agreed to submit to the jurisdiction of that court or the
courts of that country;
when the foreign proceedings were instituted, the judgment debtor
was resident in or, if a corporation, had its principal place of business
in the country of the foreign court; or
the judgment debtor had an office or place of business in the country
of the foreign court and the foreign proceedings were in respect of a
transaction effected through or at that office or place of business.

(2)

In the case of a judgment given in an action where the subject matter of the
proceedings is immovable property or in an action in rem where the
subject matter is movable property, the foreign court will be deemed to
have jurisdiction only if the property in question was at the time of the
foreign proceedings situate in the country of that court. The 1960 Law does
not deal expressly with the situation where, in relation to an action in rem
concerning movable property, the movable property is situate in the
country of the foreign court at the time that the foreign proceedings are
instituted but that the property is removed from that country prior to the
foreign judgment being obtained. The view of the authors is that in those
circumstances the Royal Court would be likely to construe the provisions
of the 1960 Law as deeming the foreign court to have had jurisdiction.
This point has not, however, fallen for consideration by the Royal Court.

(3)

In the case of a judgment given in any other action, the foreign court will
be deemed to have jurisdiction if the jurisdiction of the foreign court is
recognised by the law of Jersey.

(4)

Notwithstanding what is set out at paragraphs 1 to 3 above, the foreign
court will not be deemed to have had jurisdiction if:

s
j

s

e
n

(a)
(b)

rt

~n

:k

(c)

the subject matter of the foreign proceedings
was immovable
property outside the country of the foreign court;
the foreign proceedings were brought contrary to an agreement
whereby the dispute in question was to be determined otherwise than
proceedings in the courts of the country of the foreign court (save
where paragraphs (l)(a), (b), (c) or (3) above apply); or
the judgment debtor was a person entitled to immunity in the
jurisdiction of the foreign court under rules of public international
law and did not submit to the jurisdiction of the foreign court.

Part III - Enforcement of Foreign Judgments

200

15.3 CUSTOMARY LAW RULES

t
B

. As noted, the procedure for the registration of a judgment
many senses restrictive, confined
it is to the strictures
particular to the enforcement of money judgments from
limited number of jurisdictions.
The Law, however,
exclusive regime so as to circumscribe the Royal Court's
enforce foreign judgments at common law.

as

sc

of a foreign court is in
of the 1960 Law and in
the foreign courts of a
does not provide an
inherent jurisdiction to

rr
C4

s(
E

cc
C

th

Foreign judgments may be enforced under the customary law, so that there is
jurisdiction in the Royal Court to enforce the judgments from those countries
where there is not a reciprocal enforcement regime and, given more recent
authority, where the judgment is a non-monetary one.
Whilst English judicial authority is not binding on the Royal Court, Jersey has,
generally, in matters touching the conflict of laws, followed the position under
English common law. As to the enforcement of foreign judgements, that is most
conveniently set out in Dicey, Morris & Collins, The Conflict of Laws?
Although, the enforcement of a foreign judgment at English common law is
dealt with under Rule 35(1) of Dicey, it is helpful to set out both Rules 34 and
35(1) which are as follows:

In
C
et
TI
al
Is
El

sn
C:

Rule 34 - A judgment of a court of a foreign country (hereinafter referred to as a
foreign judgment) has no direct operation in England but may:
(1)
(2)

be enforceable by claim or counterclaim at common law or under statue, or
be recognised as a defence to a claim or as conclusive of an issue in a claim.

Rule 35 - (1) Subject to the Exceptions hereinafter mentioned and to Rule 55
(international conventions), a foreign judgment in personam given by the court of a
foreign country with jurisdiction to give that judgment in accordance with the
principles set out in Rules 36 to 39, and which is not impeachable under any of
Rules 42 to 45, may be enforced by a claim or counterclaim for the amount due
under it if the judgment is:
(a)

(b)

for a debt, or definite sum of money (not being a sum payable in respect of
taxes or other charges of a like nature or in respect of a fine or other penalty);
and·
'"
final and conclusive, but not otherwise.
7
8
9

6

14th edn (London: Sweet & Maxwell, 2006), at Rule 35.

10

Jersey

201

Until the recent decision of the Royal Court in Brunei Investment Agency and
Bandone Sdn BHd and Others v Fidelis Nominees Ltd and Others/ there was
some uncertainty as to the Royal Court's jurisdiction to enforce a foreign nonmonetary judgment. In IMK Family Trust' Birt DB, in obiter comment,
considered that the customary law position in Jersey may historically have gone
somewhat further, being more flexible in its approach, that the common law in
England and Wales. Reviewing the authority of Lane v Lane' the Deputy Bailiff
considered that the language of the judgment was consistent with the Royal
Court having a discretion as to whether to enforce a non-monetary judgment;
the question was, however, left open.
In the Brunei case the matter was dealt with definitively, holding that the Royal
Court, adapting to modem day circumstances, should have a discretion to give
effect to foreign non-monetary judgments.
The case contains a comprehensive review of the various international
authorities in this area including those coming from the Canadian and Cayman
Islands courts and their reasoning for a departure, in this respect, from the
English common law position. In effect, what is said is that the world is now a
smaller place - a community. The Royal Court quoted with approval the
Canadian case of Morguard Investments Limited v De Savoye: 10
The world has changed since the above rules [concerning the recognition and
enforcement of foreign judgments] were developed in ] 9th century England.
Modern means of travel and communications have made many of these ]9th
century concerns parochial. The business community operates in a world economy
and we correctly speak of a world community ... Accommodating the flow of
wealth, skills and people across state lines has now become imperative. Under
these circumstances, our approach to the recognition and enforcement of foreign
judgments would appear ripe for reappraisal.

7
8

9
10

[2008] JRC 152.
[2008] JRC 136.
[1985-6] JLR 48.
(1990) 3 SCR 1077.

202

J

1
~

Part III - Enforcement

of Foreign Judgments

Although Morguard was dealing with the recognition and enforcement of
judgments within the provinces of Canada, the sentiment and reasoning was
echoed in Pro Swing Inc v Elta Golf Incll in which the Supreme Court of
Canada removed the restriction on the ability to enforce foreign non-money
judgments, within Canada itself. This is a restriction also removed in Cayman."
The Royal Court also took support from the opinion, though obiter, of the Privy
Council in the case of Pattni v Ali. 13
The ability to enforce a non-monetary judgment remains, however, a discretion.
There is no right to enforce a non-monetary judgment. It is, further, a discretion
to be exercised cautiously.
The Royal Court in Brunei did not set out any general principles to be applied,
but exercised its discretion in favour of enforcement on the facts of the case
before it. It did that for the following reasons: (1) the court in the Brunei case
had jurisdiction in accordance with Rule 35(1) and its judgment was final and
conclusive; (2) the terms of the Brunei judgment and of the order sought in
Jersey were clear and specific; (3) there was little likelihood of further
supervision being required by the Royal Court; (4) the Royal Court was not
being asked to extend greater judicial assistance to the applicants than it would
extend to its own litigants; (5) there were no grounds upon which the court
might refuse to exercise its discretion.
Of course, a foreign judgment, even though it may now be a non-monetary
one, must nevertheless meet the other requirements set out in Rule 35 before it
might be enforced. Jersey's case law dealing with the recognition and
enforcement of foreign judgments is limited. The general principles which can
be extracted from the Jersey case law on the recognition by the Jersey Courts,
are as follows.

II

(2006) SCC 52.

12

See Miller v Gianne and Redwood Hotel Investment Corp 2007 CILR 18.

13

[2007] 2 AC 85.

17

Jersey

203

The Royal Court will recognise a foreign judgment where: (1) the judgment is
of a court of competent jurisdiction in the territory in which it was
pronounced;" (2) the judgment is final and conclusive;" and (3) the judgment is
not open to impeachment on any ground. 16
Where the judgment is recognised, this will give rise to an estoppel per rem
judicatum. In Rahman Showlag v Monsour." the Privy Council stated on an
appeal from the Jersey Court of Appeal that:
It is common

ground

of the Law

of Jersey

between

and that it applies

Limited v Braco (2), Lord Bridge of Harwich

t

14

1
t
15
(

t
j
11

16

"

17

res judicata forms part
to foreign judgments.
In Owens Bank

the parties that the doctrine

of

said: [I 992] AC at 484:

As is the position under the 1960 Law, a fundamental requirement for the recognition or
enforcement of a foreign judgment under Jersey law is that the foreign court should have had
jurisdiction in relation to the matters the subject of the foreign proceedings according to Jersey
conflict of laws principles. In the area of conflicts of laws, the Jersey courts have tended to
follow English common law principles in relation to conflicts of laws.
In Abdel Rahman v Chase Bank (CI) Trust Co Ltd [1990] JLR 59, the Royal Court cited with
approval English Court of Appeal authority setting out the well established principle that even
though a judgment may be subject to further appeal or under appeal, it is still final and
conclusive so as to enable an action to be brought on it.
There is little Jersey authority which addresses the circumstances in which a judgment of a
foreign court is open to impeachment. At first instance in Rahman Showlag v Mansour [1991]
JLR 367, the Royal Court indicated that only in exceptional circumstances would it decline to
recognise a judgment of a foreign court of competent jurisdiction. The Royal Court went on to
say (obiter) that such exceptional circumstances would arise where the method by which the
foreign court had come to its final decision was contrary to Jersey views of substantial justice.
The Royal Court also indicated that it may decline to recognise a foreign judgment where
<special circumstances' exist, such as fresh material becoming available or a development in the
law post-judgment which shows quite clearly that the case had been wrongly decided either in
fact or in law. (Note that the decision in this case was overturned on appeal to the Privy Council
although the Privy Council did not deal expressly with the circumstances in which the court
might exercise a discretion not to recognise a foreign judgment. It appears, in any event, that the
comments of the Royal Court in relation to 'special circumstances' were limited to the exercise
of discretion where an issue estoppel is alleged.) In the context of an application to seek to
enforce the in Jersey an order of the English High Court in matrimonial proceedings, the Royal
Court in the more recent case of In Re The Fountain Trust [2005] JLR 359 had regard to
whether the method by which the English High Court had come to its decision was contrary to
Jersey views of substantial justice.
[1994]JLR

113.

204

Part III - Enforcement of Foreign Judgments

'A foreign judgment given by a Court of competent jurisdiction over the
Defendant is treated by the common law as imposing a legal obligation on
the judgment debtor which will be enforced in an action on the judgment by
an English Court in which the Defendant will not be permitted to reopen
issues of either fact or law which had been decided against him by the foreign
Court'
This statement holds good in Jersey as it does in England.

The Privy Council considered in Rahman Showlag which of two competing
foreign judgments set up the resjudicata stating that:
the correct general rule is that where there are two competing foreign judgments,
each of which is pronounced by a Court of competent jurisdiction and is final and
not open to impeachment on any ground, then the earlier of them in time must be
recognised and given effect, to the exclusion of the later.

The Privy Council went on to state that it must be borne in mind that there may
be circumstances in which a party holding a competing judgment which is
earlier in time may be estopped from relying on it.