PRIL Text chapter 6.pdf

Foreign Judgments 205

6

ForeignJudgments

INTRODUCTION

A question that frequently arises in private international law concernswhether a judgment given in a foreign country may be recognised andenforced in the forum. In the absence of appropriate internationalagreements and corresponding incorporating legislation,1 the theory ofterritorial sovereignty forbids any direct operation of judgments renderedin a foreign state.2 Nonetheless, pursuant to the fundamental objective offurthering the ends of justice, common law countries have, for well over200 years, permitted the recognition and enforcement of foreign judgmentsthat satisfied certain conditions.3 Examination of these conditions is ofutmost importance to the practical effect of the foreign judgment but beforetheir consideration several preliminary points must be made.

First, recognition and enforcement are not synonymous. Recognitionalone may be sought when, for example, a successful foreign defendantwants to stop the plaintiff from trying the same cause of action again in aCaribbean forum. In this type of case, the foreign judgment is raised as adefence, a shield, or a kind of estoppel that prevents the plaintiff frompursuing proceedings in the forum. No question of enforcement arises. Bycontrast, enforcement of a judgment necessarily implies its recognition, aswhere the Caribbean forum authorises the successful foreign plaintiff totake the necessary steps to satisfy the judgment debt out of local assets of

206 ELEMENTS OF PRIVATE INTERNATIONAL LAW

the defendant. In these circumstances the foreign judgment is being usedas a sword.

Secondly, occasionally where the foreign judgment is being used as ashield, and almost invariably where it is being wielded as a sword, the lawseeks to further the ends of justice by protecting rights acquired underforeign law where it is just to do so. The actual mechanism used for suchprotection has been the subject of debate. Essentially, the choice has beenseen as being between requiring the foreign judgment creditor to bring afresh action in the Caribbean forum, as contrasted with finding a moredirect way of enforcing the foreign award.

Thirdly, although there is some overlap, the law maintains an importantdistinction between foreign personal judgments, and other foreignjudgments. A foreign personal judgment is a judgment or order given ormade by a court in civil proceedings, or a judgment or order given or madeby a court in criminal proceedings for the payment of a sum of money inrespect of compensation or damages to an injured party.4 This judgment inpersonam creates an obligation binding upon the persons to the litigation,and is traditionally contrasted with a judgment in rem, which normallyhas the effect of creating status that is binding upon third parties. Theforeign personal judgment determines a claim based upon the law of non-familial obligations and will normally be for a sum of money or injunctiverelief. It does not include a judgment given in connection with a matrimonialmatter, administration of estates of deceased persons, bankruptcy, windingup of companies, lunacy or guardianship of infants, or admiralty actions.

This chapter is primarily concerned with the rules relating to therecognition and enforcement of foreign personal judgments. The treatmentof foreign judgments of a specialised nature is dealt with as appropriate inother chapters, and foreign matrimonial decrees are considered elsewhere.5

Fourthly, foreign judgments may be entitled to recognition andenforcement under one of five distinctive legal regimes. The first andhistorically most important is the common law. Common law rules are,potentially, applicable to all foreign judgments, whether given in anotherCaribbean country, Commonwealth countries, United States, Europe, orelsewhere. Enforcement at common law may proceed even in the presenceof a statutory regime on enforcement of foreign judgments, or if that regimedoes not apply to the foreign judgment.6 Recognition and enforcement atcommon law involves bringing an ordinary action in a Caribbean court,pleading and proving the foreign judgment, and seeking entry in theCaribbean court of a judgment similar to that given in the foreign forum.


Proceeding at common law is assisted by the rules of civil procedure thatenable a claimant to apply for summary judgment under Rules of theSupreme Court Order 14, or its equivalent, on the basis of the foreignjudgment.

The other four regimes are statutory or treaty-based and allowapplication to a Caribbean court for an order that a foreign judgment beregistered for enforcement. There are no special statutory rules governingmere recognition. With a few modifications, the first two legislativeframeworks are virtual codifications of the common law and the distinctionbetween them lies mainly in the nature of the relationship between theCaribbean forum and the foreign country in which the judgment was given.The first statutory regime is based upon the Administration of Justice Act1920 of the United Kingdom.7 It applies to judgments given in the UnitedKingdom and to judgments given in other Commonwealth countries towhich the statute has been specially extended for this purpose. The secondstatutory scheme reflects the Foreign Judgments (Reciprocal Enforcement)Act 1933 of the United Kingdom8 and governs recognition and enforcementof judgments rendered in any foreign country to which the statute hasbeen extended. The third scheme applies to enforcement in Member statesof the Caribbean Community by virtue of the recent establishment of theCaribbean Court of Justice.9 The fourth statutory regime is applicable toenforcement in the Member States of the Organisation of Eastern CaribbeanStates in relation to judgments given by the Supreme Court of EasternCaribbean States.10

The fifth and final preliminary point to be made concerns the non-merger of the original cause of action with the enforcement action. In theinterest of bringing finality to litigation there is a rule in purely domesticlitigation debarring a plaintiff who obtains judgment against a defendantfrom again litigating that cause of action.11 Considerations of doublejeopardy could also arise. This rule does not apply in the case of foreignjudgments. At common law, a foreign court is not regarded as a court ofrecord and it therefore follows that there is no merger of the foreign andforum actions even though based upon the same cause.

Cogent criticism12 led to the reversal of the common law by legislationin England,13 but not, as a general rule, in the Caribbean.14 Accordingly, aplaintiff who was successful in a foreign court normally still has the choiceof either litigating in the Caribbean based on the foreign judgment, orbringing an action in the Caribbean against the defendant based on theoriginal cause of action. However, as we shall see, under some of the


legislative arrangements for enforcement, a judgment that is capable ofbeing registered cannot be enforced by other means.

PHILOSOPHICAL BASIS FOR RECOGNITION ANDENFORCEMENT

There is widespread acknowledgment that the society of nations will workbetter if some foreign judgments are taken to create rights that are recognisedand can be directly enforced in countries where the defendant or his assetsare to be found.15 However, consensus on practical convenience, by itself,does nothing to explain the philosophical basis for such recognition andenforcement, and the cases give virtually no guidance on this vital question.

Comity

In the eighteenth century justification was advanced based upon the ideaof comity16 but it is now well accepted that comity is a rather vague conceptand is more appropriate to the relations between sovereigns.17 Moreover,common law recognition and enforcement was never based upon anindividual nation-to-nation relationship. Caribbean courts have neverthought it necessary to investigate what reciprocal rights of enforcementare conceded by the foreign country, or to limit their exercise of jurisdictionto that which they would recognise in others.

Obligation

Accordingly, the nineteenth century witnessed the eclipse of comity bythe doctrine of obligation. Obligation to fulfil the judgment of the foreigncourt is related to sovereignty. From the earliest cases, a foreigner whochose to create an establishment within the territory of a sovereign wastaken to owe, in exchange for personal safety and well-being, a personalduty to respect the sovereign’s laws as enforced by sovereign’s courts. Thisconcept may be reasonably applied to a person who establishes a long-term residence in the foreign country. In the case of transient passage,however, allegiance may be too strong a fare. Tacit consent to abide by therights and obligations stemming from the local law administered in theforeign court (including the local rules on private international law) appearsa more plausible basis.18

In Schibsby v Westenholtz19 Blackburn J identified the rationale ofobligation as ‘the true principle on which the judgments of foreign tribunals


are enforced’. Langer v International Transport and Earthmoving20 confirmedthat ‘the same principle applies in our courts in Bermuda.’21

Ends of Justice

The doctrine of obligation undoubtedly provides an acceptable theory toexplain the positivistic rationale underlying recognition and enforcementof foreign judgments at common law. Whether it provides a sufficientrevelation of the underlying policy considerations is doubtful,22 but theremay be little more to be gleaned than the basic judicial instinct to act infurtherance the advancement of substantial justice. For over 150 years thisdrive has been the unarticulated premise of the juridical activity in thisarea.23

Statutory Enforcement

Whilst the advancement of justice is not irrelevant in relation to enforcementby statute, reciprocity is prioritised. It may be said that, from the vantagepoint of the legislation, reciprocity is an attempt to speed up the furtheranceof justice by encouraging more and more countries to give due regard tothe judgments of the forum. Accordingly, the formal basis for enforcementby registration is clearly the doctrine of reciprocity, apart, it must be said,from United Kingdom judgments.24 Caribbean courts recognise and enforcethe judgments of a foreign country only in circumstances where that foreigncountry is prepared to offer ‘like treatment’ or ‘substantial reciprocity oftreatment’ to the judgments of the Caribbean country.

Normally the Short Title of the relevant statutory instrument containsreference to reciprocity.25The operation of the doctrine is then secured bythe substantive provision allowing the Head of State, Head of Government,or Minister, as the case may be, to direct that the enforcement provisionsof the Act extend to courts of a foreign country. Such direction may onlybe given if the statutory benefits conferred by the Act upon judgmentsgiven in the superior courts of a foreign country are substantially reciprocated‘as respects the enforcement in that foreign country of judgments given inthe Supreme Court’ of the relevant Caribbean country.

Segregation of the theoretical underpinnings for the differentenforcement regimes was visible in Nebraska Dairies Inc. v Tropical Trading.26

The case held that a Nebraska money judgment could not be enforced inBarbados on the basis of reciprocity since the Governor General had notacted in accordance with the Foreign and Commonwealth Judgments


(Reciprocal Enforcement) Act to certify the existence of reciprocity. In factthe High Court doubted whether such reciprocity existed with any statein the United States of America and it refused to follow Travers v Holley,27 acase that affirmed English recognition on the common law basis ofreciprocity of a divorce obtained in New South Wales.28

There have been recent attempts in the Supreme Court of Canada toexplain which foreign judgments are to be recognised and enforced in termsthat borrow from, but modernise the language of, comity, obligation, andreciprocity. Comity, as refashioned in the modern sense, is neither a matterof absolute obligation nor mere courtesy and good will. Rather, it indicatesrecognition ‘which one nation allows within its territory to the legislative,executive or judicial acts of another nation, having due regard both tointernational duty and convenience, and to the rights of its own citizens orof other persons who are under the protection of its laws.’29 The Courtrecognised that greater comity is required in our modern era ‘wheninternational transactions involve a constant flow of products, wealth andpeople across the globe.’30

RECOGNITION AND CONSTITUTIONAL RIGHTS

Recognition of foreign judgments could give rise to the kinds of concernsfor constitutional rights considered in relation to the staying of localproceedings.31 It is not immediately clear that the enforcement, withoutmore, of a decision taken by a foreign tribunal on the civil rights andobligations of citizens, comports easily with the constitutional guaranteesof access to the Supreme Court for determination of those civil rights andobligations. The point is particularly telling in relation to enforcement byregistration, which, as we have seen, involves no plenary proceedings at allin the forum.

RECOGNITION AND ENFORCEMENT AT COMMON LAW

At common law, enforcement of a foreign judgment required a fresh actionunder which the foreign judgment creditor sued on the obligation createdby the judgment. The fresh action was governed by the ordinary rules ofcivil procedure.32 For example, the claimant could apply for judgment indefault where the defendant failed to acknowledge service or failed to file adefence. Summary judgment may be obtained on the ground that the


defendant had no defence to the claim, or that the claimant has no realprospect of succeeding on the claim or issue. Nevertheless, the requirementto bring fresh proceedings meant that Caribbean rules for jurisdiction inpersonam had to be satisfied.33

Moreover, in order to gain the advantages of suit on the obligation ofthe foreign judgment, the claimant had to establish three grounds. Thesewere that the foreign court had possessed jurisdiction over the parties; thatthe judgment had been final and conclusive; and that the judgment hadbeen for a fixed sum not itself being a tax or penalty. With the establishmentof these three elements the claimant became entitled, prima facie, to havethe judgment enforced, but the defendant could then negate suchenforcement by producing evidence relating to one or more of the accepteddefences.

Jurisdiction of the Foreign Court

By far, the most important essential of the foreign judgment is that a courtof competent jurisdiction must have given it. This meant that the foreigncourt must have possessed jurisdiction in the international sense, that is,under Caribbean rules recognising the competence of that foreign court. Itis not enough that the foreign court was competent under its own domesticrules. Nor is it sufficient that it had jurisdiction on a ground that theCaribbean forum would itself regard as sufficient to establish its ownjurisdiction. What is required is jurisdiction under the Caribbean rules forprivate international law for the recognition of foreign judgments. Nothingelse suffices.

These principles may be traced back to the classical cases of Buchananv Rucker34 and Schibsby v Westenholz.35 In Buchanan, the plaintiff broughtan action in England to enforce a judgment given by a court in Tobago. Aspermitted under Tobagonian law, service of the writ had been effected onthe defendant simply by nailing a copy to the door of the courthouse. LordEllenborough refused to enforce the judgment asking somewhat rhetorically:‘Can the Island of Tobago pass a law to bind the rights of the whole world?Would the World submit to such an assumed jurisdiction?’

In Schibsby, the plaintiff sought to enforce in England a judgmentobtained in France. French jurisdiction had been founded upon service ofa writ issued against the defendants in France and served upon the ProcureurImperial, who forwarded it to the French Consul in London, who thenserved a copy upon the defendants resident and carrying on business in


London. In delivering the judgment of the court, Blackburn J acceptedthat if foreign judgments were enforced on the basis of comity, then theEnglish courts ‘could hardly’ decline to enforce a French judgment givenin circumstances in which the English court could itself have assumedjurisdiction under RSC Order 11.

However, adherence to the doctrine of obligation necessarily meantthat anything that negatived the obligation to obey the foreign judgmentwas a good defence to its enforcement. The obligation had to be basedupon the allegiance owed by the defendant to the foreign court and wherethe defendant owned no such allegiance because he was not a subject orresident there, and had not submitted to its jurisdiction, then there wasno duty to obey the judgment. In particular, mere service of the writ uponthe defendant in the forum could not create the obligation. Blackburn Jquestioned: ‘Can the empire of France pass a law to bind the whole world?’and thought that as in the case of a similar attempt by the Island of Britain,the answer should be ‘No’.36 Accordingly, enforcement was refused.

Residence

It is basic law that the residence of the individual or corporate defendantwithin the territory of the foreign court is sufficient for jurisdiction.37 Whatwas, until recently, controversial was whether mere presence falling shortof residence constituted a sufficient territorial connection between thedefendant and the country of original judgment. Recent developmentsappear to have resolved the debate in the affirmative but it is useful toexamine separately the position of individuals and corporations.

Individuals

Although Caribbean dicta to the contrary may be identified,38 there islittle doubt that an individual who is resident and physically present inthe foreign country at the time when proceedings are commenced is subjectto the jurisdiction of the courts of that country.39 Where the individualwas present but not resident it was thought for many editions of learnedtextbooks that jurisdiction was lacking.40 But even in the nineteenth centurythe temporary presence of an Englishman in Sweden was sufficient to conferjurisdiction on the Swedish courts. This was because ‘all persons withinany territorial dominion owe their allegiance to its sovereign power andobedience to all its laws and the lawful jurisdiction of its courts.’41 For thesame reason the short visit to British Columbia by a husband to see his sickwife was enough to ground the jurisdiction of the British Columbia courts.42


After a thorough review of the cases the English Court of Appeal concludedin Adams v Cape Industries Plc that:

The voluntary presence of an individual in a foreign country, whether permanentor temporary and whether or not accompanied by residence, is sufficient to givethe courts of that country territorial jurisdiction over him under our rules ofprivate international law.43

Whether jurisdiction exists in relation to a defendant who is residentbut not present in the foreign country at the commencement of theproceedings there remains unclear.44 One reading of the Privy Councildecision in Sirdar Gurdyal Singh v Rajah of Faridkote45 suggests that there isan irreducible minimum of physical presence at service of process.46 But abetter explanation of the decision may be that the five-year absence of thedefendant from Faridkote had caused his residence there to lapse beforethe action was brought. Under these circumstances, there could be noquestion of the courts there having jurisdiction.47

There is much cogency in the view that if presence is properly regardedas sufficient to support jurisdiction, then residence, even if not accompaniedby immediate presence, should also be adequate. 48 Residence is a moresubstantial connection than mere presence. Since the test of allegiancewould have already been satisfied, such jurisdiction ought to be respectedeven if the foreign court has to authorise service ex juris on the defendant.There is an obvious parallel here with the notion that ‘once competentalways competent’, so that it is irrelevant that having been properly served,the defendant departs the jurisdiction

Corporations

A company is a legal person without a physical existence and thereforecannot literally be resident or present in a foreign country. It is, however,deemed to be resident and present in the foreign country if incorporatedthere.49 Moreover, it may conduct economic activities in countries otherthan the country of incorporation. Several cases have been concerned withdeciding upon the nature of the activities that would qualify as residenceor presence in such countries for jurisdictional purposes. Rather thanevaluating the nature of the economic presence per se50 the common lawhas, by analogy to individuals, adopted a more physical test.

Jurisdiction by analogy with the individual was endorsed in Adams vCape Industries Plc,51 which is said by Caribbean courts to be ‘the leadingmodern authority on the subject’.52 Adams laid down three criteria bywhich the English courts are likely to treat a corporation as resident or


present in a foreign country. First, it must have its own fixed place ofbusiness (often a branch office) there. Second, the corporation must havecarried out its own business, or an agent must have carried out thecorporation’s business. Third, this business activity must have endured formore than a minimal time.53

Two aspects of the ‘residence or presence’ test have proven controversial.Where a representative carries on business in a foreign country there maybe some doubt as to whether this person is carrying on the company’sbusiness or is merely minding his or her own business. That was the centralissue in Humphrey v Jolly Roger Cruises Inc.54 A tourist to Barbados had diedfollowing a boating accident on the Jolly Roger on which he was a passenger.His parents sued the defendants as owners of the Jolly Roger in New York,which was the parents’ state of residence, for damages for negligence in thedeath of their son. The defendants did not appear and judgment wasgiven in default in the sum of over US$1 million. The defendants opposedenforcement in Barbados on the ground that the New York court had nojurisdiction since they had no residence or presence in the United Statesand had not submitted to the jurisdiction of that court. The plaintiffsargued that the defendants were present in New York through theirrepresentatives who made bookings for the cruises on behalf of Jolly Roger.

The Barbados High Court rejected the Canadian notion that the foreignjurisdiction could be founded on ‘a real and substantial connection’ betweenthe injury suffered by the plaintiffs and the foreign court.55 Williams CJheld that there was no basis for departing from the principles laid down byin the Sirdar Singh v Rajah and Adams v Cape Industries Plc56 line of cases,which based jurisdiction of foreign courts on the defendant’s residence orpresence there at the time of the suit. Moreover, the defendants’ connectionto foreign court was to be determined in accordance with Barbados conflictof laws. The Court examined the totality of the circumstances and found,on the facts, that the travel agents in New York were carrying on their ownbusiness rather than that of the defendants:

It is stated that the travel agents would contact the defendant on behalf of clientsin New York. They would forward the names of those clients to the defendant inBarbados, and the defendants would put these names on the list for the cruise. Theagent could collect the money from the client on behalf of the defendants, andretain a commission.

There was no evidence of any other contact or communication between thetravel agents and the defendant, nor is it suggested that the travel agents couldmake bookings without reference to the defendants.


On the other hand, the defendants specifically stated that prior to 19th December1997, it did not allow bookings to be made by travel agents or to be paid for in theUnited States of America, nor did it pay commissions to travel agents in the UnitedStates of America. Further, all bookings were made in Barbados.

As it seems to me, the arrangements as alleged by the plaintiffs between thetravel agents and the defendants are too tenuous to give the defendants a presencein New York. The travel agents clearly cannot be considered agents or representativesof the defendants carrying on the defendants’ business rather than their own.57

The Court was careful to avoid the suggestion that the mere fact thatthe representative did not have power to enter into contracts on behalf ofthe defendants in the foreign country necessarily meant that the defendantsdid not have a presence there.58 Rather, Williams CJ accepted the varietyof considerations mentioned in Adams that might be looked at inconsidering whether a company resident in a particular jurisdiction byhaving a representative there. Considerations such as whether therepresentative was remunerated by commissions or a regular salary, thedegree of control exercised by the corporation over the business run by therepresentative, whether the representative displayed the corporation’s name,whether the representative required specific authority in advance to bindthe corporation.

By way of contrast, it was held in Canada Inc. v Socoa59 that theestablishment of a place of business in Montreal from which some of theaffairs of the company were conducted by its representative, constitutedpresence. The Quebec judgment could therefore be enforced in The GrandCourt, in the Cayman Islands. It was immaterial that the place of businessin Montreal was not a registered address for the company.

The other troublesome aspect concerns the circumstances in which acompany is resident or present in a foreign country through its subsidiaries.Recently this has become a live issue. After an exhaustive examination ofthe topic, Slade LJ held in Adams that any relationship between a parentcompany and subsidiaries is to be resolved by recourse to tradition principlesof company law asserting the separate legal personality of the company.There was no room for piercing the veil to prove any singularity of economicidentity between the parent and subsidiary companies.60

Submission

A foreign court will have jurisdiction in the international sense if thedefendant voluntarily submits to its jurisdiction. Submission covers amultitude of activities. Many self-evidently constitute submission, othershave attracted controversy. The non-controversial grounds include the


circumstance where the defendant in the enforcement proceedings was theplaintiff in the original proceedings and thereby became liable in respectof a counterclaim, cross-claim or costs.61 Similarly, a defendant whovoluntarily appears in the foreign proceedings or otherwise defends theaction on the merits will be taken to have submitted.62 In Menendez vSawyer63 the defendant’s attorney filed the pleadings before a court in Floridaand this was held to amount to submission by the defendant.

Finally, entry of a conditional appearance is considered a completeappearance for all purposes save for the reservation of the right to challengethe service out of process. Accordingly, where such a challenge is unsuccessful,the appearance becomes unconditional and the defendant will be consideredto have submitted.64 In enforcement proceedings in the Trinidad and Tobagocase of Quinn v Pres-T-Con Limited,65 the defendant was taken to havesubmitted to the jurisdiction of High Court of England following its entryof a conditional appearance and unsuccessful attempt to have the order forservice out set aside. Even without the additional facts that they then servedtheir defence and later issued a third-party notice, the appearance wasvoluntary submission. In the view of the court:

Where any issues arise for decision at any stage of the proceedings in the foreigncourt and that court is invited by the defendant as well as by the plaintiff to decidethose issues, ‘the merits’ are voluntarily submitted to that court for decision so thatthe submission subsequently binds both parties in respect of the dispute as awhole, even if both would not have been so bound in the absence of that voluntarysubmission.66

By way of comparison, there are two circumstances that have generateda great deal of litigation concerning whether the defendant may to betaken to have submitted. These are first, where the defendant appears tocontest jurisdiction, and second, where the defendant agreed ahead of timeto permit disputes to be litigated in the foreign court.

Appearance to contest jurisdiction

A defendant who is simply served with process does not thereby becomeamenable to jurisdiction. Accordingly, in Christensen v Holderness School67

it was held that an application for final judgment under Order 14 to enforcea New Hampshire judgment for school fees allegedly owed by the defendant,failed. The defendant had not entered any kind of appearance and themere service of the foreign writ or the local writ upon him in the Caribbeandid not amount to submission.


If having been served, a defendant appears in the foreign proceedingsto contest the jurisdiction of the court, and that contest fails, difficultquestions arise as to whether that defendant will be deemed to havesubmitted to the court’s jurisdiction. Appearance to contest jurisdictionclearly differs from the situation described above where the defendantvoluntarily appears to fight the case on the merits and in so doing takes thechance of obtaining judgment in his or her favour. But the common lawdraws another distinction. This is between protest as to exercise and protestas to existence of jurisdiction.

Protest to the exercise of jurisdiction amounts to submission.Accordingly, in Henry v Geopresco International Ltd.68 a Jersey company’sappearance before an Alberta court to argue that service out ought to beset aside on the basis that the court was not the forum conveniens was heldby the English Court of Appeal to amount to submission. A similarconclusion would probably be reached where a defendant requests a stayon the basis of forum non conveniens. It is irrelevant that without thisimplicit acknowledgment the foreign court would have lacked jurisdictionin the international sense. It is also immaterial that the stay or dismissal ofthe foreign proceedings is sought to enable arbitration to take place or toenable effect to be given to a Scott v Avery69 clause.

The question of whether an appearance solely to contest the existenceof the jurisdiction of the foreign court, in order for example, to protectassets in the country, amounts to submission, was expressly left open inHenry v Geopresco International Ltd.,70 and considered but not, it issubmitted, properly or finally decided in Hunter v Crowch.71 In enforcementproceedings in The Bahamas, the defendant argued that the Florida courtsdid not have jurisdiction because he had entered an appearance for the solepurpose of protesting against jurisdiction. Adams J quoted from ‘thetroublesome’ case of Harris v Taylor in support of the proposition thatprotesting against the Florida court’s jurisdiction meant that the defendanthad ‘made himself amenable’ to the jurisdiction of the Florida court. Thismay be an improper reading of Harris since this case does not concern aninstance of mere appearance to contest jurisdiction.

There are arguments supporting the notion that to protest is to submit.At the most theoretical level, the existence and exercise of jurisdiction formsa seamless web insofar as assumed jurisdiction is concerned. Whether thecourt has jurisdiction is a function of whether it decides to exercisecompetence. Surmounting the hurdle of jurisdiction is only complete withovercoming the obstacle of discretion.


Moreover, it is a fact of life that, increasingly, the decision on jurisdictionis conclusive of transnational litigation particularly in the context of theapplication of forum non conveniens. 72 There might be little practicaldifference between protesting the existence and exercise of jurisdictiontherefore, since a decision on either is often a de facto decision on the merits.Where the defendant has no asset at risk in the foreign country, thedefendant’s intermeddling with the process of the foreign court may wellbe a ground for finding in favor of submission.

Criticism of the common law led to reformation in the statutory regimesbasing enforcement upon reciprocity. A judgment debtor will not be takento have submitted to the jurisdiction of a foreign court if the appearancewas ‘for the purpose of protecting or obtaining the release of propertyseized or threatened with seizure in the proceedings or of contesting thejurisdiction the court.’73 But failure to define the expression ‘contestingthe jurisdiction’ is rather unfortunate considering the distinctions thathave been made between protest to the existence and exercise of jurisdiction.In any event, the legislation represents a self-contained regime that wasnot intended to repeal the common law framework. So, it was been heldthat the legislative provisions are not controlling because it is not possibleto argue backwards from the statute to the content of the common law.74

Agreement to submit

A foreign court will have jurisdiction over a defendant who had previouslycontracted to submit to that jurisdiction, as in Raffle America Inc. v KingsboroInternational Holding Co. Ltd.75 A contract between the parties obliged thedefendants to manufacture men’s, ladies’, boys’ and girls’ dress shirts inBarbados. It was a term of the agreement that all disputes should besubmitted to the jurisdiction of the Supreme Court of New York fordetermination pursuant to the New York Simplified Procedure for CourtDetermination of Disputes. Expressly adopting the ratio of Emanuel v Symon,the High Court of Barbados held that the New York judgment wasenforceable since the defendant had expressly contracted to submit to thatforum.

Implied agreement may also suffice, as for example, where the defendanttakes shares in a company whose articles of association provide for theresolution of relevant disputes in the foreign country.76 Whether conductby itself, without express or implied agreement, can amount to submissionis more difficult. In Nebraska Daires Inc., v Tropical Trading77 it was arguedthat the defendant had impliedly submitted to the Nebraska jurisdiction


by becoming party to an agreement governed by Nebraska law by virtue ofthe course of dealings with the plaintiff. A finding that this constitutedsubmission to the jurisdiction in the Nebraska Court was reversed becauseit was held that the defendant could not by his conduct be taken to havesubmitted.

The Court distinguished on the facts, rather than disapproved inprinciple, the case of Blohn v Desser.78 In that case a sleeping partner in anAustrian firm, who took no part in the conduct of the business and whowas resident in England, was held by Diplock J to have impliedly submittedto the jurisdiction of the Austrian courts. This was because she had becomea partner in the foreign firm with a place of business in Austria andappointed an agent resident in Austria to conduct business on behalf ofthe partnership at that place of business in Vienna. The court opined thatthe partner must be taken to have submitted to the courts of the foreigncountry in the circumstances, where he or she ‘causes or permits thesematters to be notified to persons dealing with the firm by registration in apublic register’.79

This decision has been subject to severe academic criticism,80 and wasrejected in one notable English case.81 Recently however, the decision hasbeen given a new lease on life by the apparent acceptance that an impliedagreement to submit might be enough.82

Connecting Factors Insufficient to ground Jurisdiction

While the common law list of the bases for jurisdiction cannot be regardedas necessarily closed, it is fair to say that it is now very difficult to extend it.Older authorities suggested grounds for jurisdiction that are no longertenable and recent authorities in foreign jurisdictions adopting radicalapproaches that have, at least for the time being, been rejected. Thus,despite earlier affirmations none of the following is sufficient to foundjurisdiction: political nationality;83 domicile;84 or possession of propertyin the foreign country.85 From the earliest of times it was decided thatjurisdiction of the foreign court based upon the equivalent of service outunder RSC Order 11 was not good enough.86 Jurisdiction based uponchoice of the foreign law as the governing law is also inadequate.87 And theinnovative approach of the Canadian Supreme Court in locating jurisdictionon the basis of a real and substantial connection between the defendantand the foreign court88 has been held to have no application in Caribbeanlaw.89


Finality and Conclusiveness

The second requirement is that the foreign judgment must be final andconclusive in the sense that the parties must be able to identify the extentof their rights and obligations under it. So that if the judgment is subjectto a further investigation by the court giving it, before a final decision ismade, then the earlier judgment cannot be enforced.90 In comparison, ajudgment subject to being overturned by a higher court on appeal maynonetheless be enforced in the forum;91 a situation that contrasts with thestatutory regimes allowing the setting aside of registration if an appeal ispending, or if the defendant is entitled and intends to appeal.92 As a matterof prudence the common law enforcement proceedings are likely to bestayed pending the disposal of the foreign appeal,93 although the courtmay be indisposed towards a stay where the appeals process is being unfairlyused as a delaying tactic.94

Caribbean law is replete with examples of litigation on the point ofwhether a foreign judgment may properly be regarded as final andconclusive. Most problematic has been the foreign judgment given in defaultof appearance or issuance of a defence. In Triangle Refineries, Inc. v Carle95

it was held in the Supreme Court of The Bahamas that a Texas judgmentobtained by default, was not a judgment obtained on the merits andtherefore did not meet the requirement of finality stipulated by Bahamianlaw. This approach ignored a line of authority going back over 150 years96

and was itself rejected in Raffle America Inc. v Kingsboro International HoldingCo. Ltd.,97 which, reasserting traditional law, held that it was immaterialthat a New York judgment was a default judgment. Similarly, in Menendezv Sawyer III98 it was agreed that a judgment is not final and conclusive ifthe Court who pronounced it had power to rescind or vary it. However,the Court continued by saying:

A default judgment may be final and conclusive even though it may be set aside bythe court which pronounced it. As Erle, CJ stated in Vanquelin v Bouard (1863) 15CB NS 341 at 367:

The twelfth plea, to the first count, alleges that the judgment in thefirst count mentioned was judgment by default for want of appearanceby the defendant in the court of the Tribunal of Commerce, and by thelaw of France would become void as of course on an appearance beingentered. I apprehend that every judgment of a foreign court ofcompetent jurisdiction is valid, and may be the foundation of anaction in our courts, though subject to the contingency that, byadopting a certain course, the party against whom the judgment is


obtained might cause it to be vacated or set aside. But, until thatcourse has been pursued, the judgment remains in full force and capableof being sued upon.

A Foreign Money Judgment Must Be For A Fixed Sum

A particular consequence of the requirement for finality and conclusivenessis that if the foreign judgment is for an award for damages, the amountmust be fixed. The obligation on the defendant to pay is said to be inchoateuntil the precise sum has been determined. In Sadler v Robins99 the plaintiffobtained a decree from a court in Jamaica ordering the defendant andvarious other persons to pay him a fixed sum. However, before payment,the defendant was authorised to deduct his full costs of the litigation. Itwas held in enforcement proceedings that until the costs were taxed thejudgment could not be enforced because the exact amount payable wasunknown.

With this may be compared the case of Beatty v Beatty100 where a wifeobtained a New York order for weekly alimony payments. Under NewYork law, she could apply to the court for the amount to be altered if hercircumstances changed materially, but any alteration would not affect theamount of installments already due. Enforcement proceedings for arrearsunder the order were properly instituted since the order was final andconclusive as to the arrears,101 and since the actual sum could be ascertainedby ‘simple arithmetical calculation’. As a practical matter, there are normallylegislative procedures in place specifically to deal with enforcement offoreign maintenance orders.102

Defences

Presumption of Unimpeachability

A foreign judgment, given by a court of competent jurisdiction, and whichis final and conclusive, enjoys the presumption of unimpeachability. Thismeans it will be assumed to be regular and enforceable. A Caribbean courtwill be very reluctant to re-open the case in enforcement proceedings andis certainly not prepared to act as a Court of Appeal reviewing the merits ofthe case. Laager v Kruger103 expressed this posture in strong language, perhapsexcessively so. Once the foreign judgment is the final and conclusivejudgment of a Court of competent jurisdiction under Caribbean privateinternational law rules, ‘other issues become irrelevant.’104 In any event, it


may be taken that, as a general rule, the foreign judgment cannot beimpugned on the merits, whether of fact or law.105 This principle may beillustrated in various ways.

1. A Mistake of Fact or Law

A Caribbean court will not refuse enforcement of a foreign judgment onthe ground only that the foreign court made an error of law or fact. Such amistake goes to the merits of the dispute and should have been brought tothe attention of the foreign court by way of review or appeal. One of theearliest cases on the subject did refuse enforcement of a foreign judgmenton the ground that it showed on its face, ‘a perverse and deliberate refusalto recognise the law’ of the forum.106 But the accepted approach wasstrikingly illustrated in Godard v Gray107 where the French court gavejudgment upon a contract matter. In applying English law as the governinglaw of the contract the court made a bad mistake as to the effect of that law,and this error was apparent from the wording of judgment. Nevertheless itwas held that the judgment could be enforced in England since the mistakewas no good defence.

In more recent times the Supreme Court of The Bahamas denied theapplication in Banque D’Investissements Mobiliers et Financement v Clifton108

to refuse to enforce an English judgment. It was irrelevant that the Englishcourt had proceeded on the mistaken assumption that the judgment debtorwas resident in The Bahamas, whereas in fact the place of residence was theUnited Kingdom. The application was dismissed because the Englishjudgment created an estoppel by record, which precluded investigation byThe Bahamas courts.109

2. Lack of Internal Jurisdiction

A lack of internal, as opposed to international, jurisdiction, is unlikely torender a foreign judgment unenforceable. As long as 100 years ago, it wasasserted that competence in the international sense was all that mattered,‘competence or jurisdiction in any other sense is not regarded as materialby the courts of this country.’110 Accordingly, the French judgment inVanquelin v Brouard111 was enforceable even though under its own rulesjurisdiction was limited to bills drawn in a particular area upon traders,and the defendant was not a trader. The limitation relating to jurisdictionwas a matter for the French court to determine.

Similarly, in Pemberton v Hughes112 the mistake in giving the respondentnine days to respond to proceedings rather than the ten days stipulated bythe rules of court was immaterial to recognition. Even if this procedural


irregularity rendered the award void in the foreign court it could still berecognised in the forum. This was because the foreign court was competentin the international sense to deal with this sort of case. A mistake orirregularity of procedure in the exercise of that competence ‘rendered theright created by the judgment merely voidable, capable of being madevoid by subsequent proceedings’.113

3. Defences Available in the Foreign Proceedings

Defences that could have been raised in the foreign proceedings but werenot, cannot, as a general rule, be raised for the first time in the enforcementproceedings. In Sardina v Johnson114 the plaintiff, who was the managerand attorney for a bank in Dominica brought an action there in his ownname against the defendant. Judgment was entered against the defendantwith the defendant’s consent, but in enforcement proceedings in Barbados,the defendant argued that the action should have been brought in thename of the bank. The argument was rejected because the defence as tocapacity of the parties should have been taken in the original proceedings.

Whether the concept of ‘availability’ of defences refers merely to theexistence of a rule in the foreign court allowing for the defence, or knowledgeof the existence of evidence to support such a defence, is open to speculation.The general rule is that all relevant evidence must be called at the originaltrial and that fresh evidence cannot be introduced in the enforcementproceedings.115 Where evidence comes to light only after the originalproceedings, the defence that it supports could only be said to have been‘available’ at trial in a very contrived and artificial sense.

Fresh evidence should therefore be allowed, albeit subject to the kindof safeguards applicable in purely domestic cases relevant to ensuring promptprosecution, and finality of litigation. For these reasons, too, a defencebased upon post-trial appreciation of the significance of evidence knownbefore the trial should be disallowed, without prejudice to possibleproceedings in respect of negligent legal advice.

4. Avoidance of Forum’s Limitation Period

The mere fact that the action was brought in the foreign court in order toavoid a stricter limitation period in the forum is no answer to enforcementof the foreign judgment. Statutes of limitation specifying a certain periodwithin which action can be brought are generally considered procedural innature and therefore governed by the law of forum in which the action isbrought.116 They bar the plaintiff from bringing action outside the specifiedtime but do not affect the substantive right to the cause of action. Many


are the cases where a limitation period has run out in one jurisdiction andthe plaintiff has gone to another jurisdiction having a longer limitationperiod and started the action there.117 Judgments so obtained are perfectlyenforceable in the Caribbean.

The issue of whether enforcement of a foreign judgment obtained in aforeign action brought outside the limitation period set by the Caribbeancourt was considered in the Trinidad and Tobago case of Quinn v Pres-T-Con Ltd.118 An accident had occurred in Trinidad in which Frank Quinnwas killed. He had been employed by Marconi Co. Ltd., an EnglishCompany, and his death had been caused by his being struck by a cranebelonging to the defendants, Pres-T-Con Ltd., a company registered inTrinidad and Tobago. The plaintiff, who was the widow and administratrixof the estate of the deceased, began an action in England only because bythen the action had become statute-barred in Trinidad and Tobago. Shesued Marconi Co. Ltd. largely because of the necessity of bringing the casewithin the Rules of the English Supreme Court Order 11, so that servicecould be effected on Pres-T-Con Ltd., in Trinidad on the ground that itwas a necessary or proper party to the English litigation.

It seemed obvious that this case involved nothing less than a bare-faced attempt, in a matter almost entirely connected with Trinidad andTobago, to circumvent the limitation period laid down by the locallegislation. But the Trinidad courts saw nothing wrong with this. Warner Jsaid:

I for my part see nothing so sacrosanct in the limitation period fixed by our statutefor bringing the action that it becomes an injustice for a would-be litigant tochoose a jurisdiction where the limitation period is longer, after his claim hasbecome statute-barred here.119

Persaud, JA, in the Court of Appeal stated:

… there is no rule of law to prevent a plaintiff from availing himself of the lex foriin which he could launch an action that is statute-barred in another jurisdictiononce he obtains leave to serve the process in the other jurisdiction. If the appellantswished to challenge the order made in the United Kingdom giving such leave in theinstant case, their proper course was to have gone to appeal, but they are notentitled in my view to lie in wait and take the point when it is being sought to[enforce] the judgment.120

Although in line with the presumption of non-impeachability, it hasbeen argued that this decision goes too far.121 Enforcement of the foreignjudgment may have been technically within the limitation period because


the enforcement proceeding started to run from the date of the Englishjudgment rather than from the date of the original cause of action thatarose at the time of the accident. However, this is to ignore the fact that theoriginal cause of action had its most substantial connection with and wasgoverned (at least partly)122 by the law of Trinidad and Tobago. It maytherefore have been contrary to public policy to have thus flagrantly flauntedthe domestic statute of limitation.

5. Cause of Action Unknown in Forum

A foreign judgment will not be refused recognition and enforcement merelybecause it was given in respect of a cause of action that was unknown in theforum. Most of the authorities suggesting that lack of familiarity with theforeign cause of action may be a ground for non-enforcement are explicableon other grounds.123 The issue was faced squarely in Cable SystemsDevelopment Co. v Shoupe.124 The plaintiffs, who held a franchise underwhich they were entitled to provide cable television programmes tosubscribers in New York and New Jersey, obtained judgment in New Yorkagainst the defendants for piracy and theft of the television service. Thejudgment being largely unsatisfied, the plaintiffs sought enforcement inThe Bahamas where the defendant had fixed deposit accounts. It was heldthat the New York judgment should be enforced notwithstanding that noaction for infringement of a franchise to provide a cable television serviceexisted in The Bahamas.

After reviewing the relevant authorities on the subject, the Chief Justiceof The Bahamas held that mere unfamiliarity with the cause of action didnot mean that it could not be enforced. To the extent cases that appearedto have decided to the contrary were actually based upon the fact thatenforcement would have been contrary to the forum’s public policy theyremained,

… unchallengeable. In so far as [they were] based on a doctrine that the courtsshould not enforce foreign judgments based on causes of action unknown in themunicipal jurisdiction, I would be inclined to express reservations. The overridingconcern appears to be the issue of public policy. Even if the cause of action may beunknown in the municipal jurisdiction there seems no valid reason why a judgmentso based should not be enforced, unless it does violence to some well-establishedprinciple or underlying concept of municipal law.125

In deciding whether public policy allows for enforcement, three separatesituations might arise and should be kept distinct. First, the law of theforum might be completely silent upon the question whether, had the


facts occurred locally, a cause of action would have arisen. In other words,the plaintiff would have been unable to proceed locally because neitherstatutory nor common law made any provision for allowing an action. Inthis scenario the judicial attitude may reasonably be enforcement of thejudgment unless some strong reason in principle can be identified for notdoing so.

Secondly, local statutory rules or common law principles might activelyprohibit the kind of cause of action pursued in the foreign proceedings. Insuch circumstances, the forum should refuse to enforce the foreign judgmentin all but the exceptional circumstances where the local rule was meant toregulate only the affairs of local people and neither the parties to the foreignaction nor the transaction itself was closely related to the forum. The problemhere reduces itself to basically one partaking of statutory interpretation.

Thirdly, enforcement of the foreign judgment may be sought against adefendant who is entitled to protection under the constitution of the forum.Here there could be an argument that such a defendant is constitutionallyentitled to litigation in the forum, where he would have won by reason ofthe unfamiliarity or actual outlawry of the plaintiff ’s cause of action. Toallow enforcement of the foreign judgment in such cases could clearly leadto constitutional difficulties.

6. Conflicting Foreign Judgments

In circumstances where there are conflicting foreign judgments, eachpronounced by a court of competent jurisdiction and both being final andconclusive, the general rule is that the earlier in time prevails. The PrivyCouncil supported this rather doctrinaire approach in Showlay v Mansour.126

The plaintiffs had obtained judgment in England against the first defendanton the ground that the first defendant had stolen the sum of money inissue from the deceased whose estate was represented by the plaintiffs. Thedefendants subsequently obtained judgment in Egypt to the effect thatthe money had been a gift. It was held that the English judgment shouldbe given effect on the general principle that where there were two competingforeign judgments, each pronounced by a court of competent jurisdiction,and not open to impeachment on any ground, the earlier prevailed overthe latter.

Adopting this purely procedural posture keeps faith with the notionthat the earlier foreign judgment ought not to be reinvestigated on itsmerits. But it does nothing for the later judgment that is discarded withoutceremony, and it puts a premium on the race to get a prior (favourable)


judgment. In circumstances where one or other foreign judgment will berejected, it must be consonant with principle to decide which should, onthe merits, be accepted. This may mean, as was implied in the BritishVirgin Islands decision of Seafarers International Union Plans v Franco127

evaluation of the rival claims according to the law governing the dispute.This would probably have produced the identical result obtained in Showlagsince, on the facts, English law probably governed the question of thevalidity of the gift.

7. Conflict With a Caribbean Judgment

A foreign judgment that conflicts with a Caribbean judgment on the samesubject will not be enforced. From this perspective, the decision in SeafarersInternational Union Plans v Franco128 provides an interesting point fordiscussion. In this case the High Court of the British Virgin Islands waspresented with conflicting foreign judgments, in addition to which, therewas a judgment in rem of the High Court of the British Virgin Islands infavour of one of the parties. The plaintiffs had claimed property in a vesselcalled the ‘Flying Cloud’ by virtue of a judgment against the seconddefendant by a court in Florida. The judgment was in respect of an unpaidmortgage owed by the second defendant whose sole asset was the ‘FlyingCloud’. The first defendant had also obtained a foreign judgment, thistime in the courts of Martinique in respect of salvage services rendered bythem the ‘Flying Cloud’ off the coasts of the Dominican Republic.

Instead of choosing between the two foreign decisions, the High Courtinvestigated whether the plaintiffs had made out the case for enforcement.The Court was particularly concerned with whether the plaintiffs’ claimcould stand as against the earlier British Virgin Islands decision in favourof the first defendant. It accepted expert evidence that, under Panamanianlaw, which was the law governing the mortgage and the law of the ship’sregistry, the mortgage had been annulled by operation of law for want ofprosecution of the elusive vessel. Therefore, by the time of the previousaction in the High Court, the mortgage had been extinguished and theplaintiff ’s enforcement action had to be dismissed.

The decision to evaluate the validity of the rival claims by reference tothe law governing the cause of action rather than the simple application ofthe domestic decision is surprising but may be defended. It is entirelypossible that the earlier domestic decision could have been taken withoutfull investigation of all the relevant allegations, particularly so if the partiesto enforcement proceedings were not all litigants in that earlier case. In


these circumstances it would be unfair and probably contrary to naturaljustice to enforce the strict doctrinal position without more.

Rebuttal of the Presumption

Notwithstanding the presumption of unimpeachability, some defences areavailable to the defendant in enforcement proceedings. These are that theforeign judgment was obtained in proceedings tainted with fraud; inproceedings contrary to natural justice; or in contravention of Caribbeanpublic policy.

Fraud

Caribbean courts will not recognise or enforce a foreign judgment that wasobtained by fraud, and the mere allegation of fraud is enough to rebut thepresumption against review of foreign judgments on the merits. The conceptof fraud covers a multitude of sins. Tricking or threatening a party into nottaking part in the proceedings, knowingly tendering false evidence, thecourt’s acceptance of a bribe, or deliberate defrauding of one of the parties,or of the court, by another party, are all covered.

Review for fraud has been allowed since the nineteenth century Englishcase of Abouloff v Oppenheimer.129 In proceedings in a Russian court, theplaintiff obtained a judgment against defendant ordering the return ofcertain goods or payment of damages. When she sought to enforce it inEngland, the defendant pleaded that judgment had been obtained by thefraudulent concealment of the fact that the plaintiff had had the goods inher possession at the time of the Russian trial. It was held that this was agood defence despite the fact that the defendant had raised similarallegations in the Russian proceedings, and that those allegations had beendismissed.

The Court asserted that the principle that no one could take advantageof his own wrong applied in the international forum no less than the purelylocal context. The principle that the merits of the foreign decision oughtnot to be reinvestigated did not apply where the foreign court had beenmisled, and where the issue of the misleading of the court had itself neverbeen decided. Subsequent English cases have held that allegations of fraudought to be investigated even though the evidence to be presented was thesame as adduced before the foreign court130 and even though the evidenceof the alleged fraud could have been presented before the foreign court butwas not.131

This line of cases was affirmed by the House of Lords in Owens Bank vBracco132 even though the early cases were decided at a time when English


courts paid scant regard to the jurisprudence of other countries. As a matterof policy there might be a very strong case for a modern review in favour ofaccording overseas judgments the same finality accorded to purely domesticjudgments but the rule was so well established that its modification wassaid to be a matter for the legislature.

The Privy Council in Owens Bank v Etoile Commerciale SA133 engagedin a comprehensive discussion of Caribbean law on the point. In proceedingsbefore the Commercial Court of Paris, Etoile succeeded in an action againstOwens Bank in respect of an action on a written guarantee dated March 1,1983. Under this arrangement Owens Bank had stood security for acompany to the sum of some 10 million (French francs). The Court ofAppeal of Paris dismissed an appeal alleging that the date of the guaranteehad been fraudulently altered from March 7 to March 1, the companythat was the subject of the surety being legally wound up in the interim.

In enforcement proceedings in St. Vincent and the Grenadines, boththe High Court and the Court of Appeal struck out the allegation of fraud.However, given the fact that several international companies were domiciledand transacted business in the jurisdiction, leave was granted for an appealto Her Majesty in Council. There was a perceived need to clarify the lawgoverning the circumstances under which enforcement of a foreign judgmentmay be resisted on the ground that it was obtained by fraud.

The Privy Council likewise struck out the plea of fraud. In the courseof doing so the Board discussed three broad principles upon which thefraud defence operates.

Acceptance of Abouloff

The English authorities derived from the rule in Abouloff were accepted.This was without enthusiasm and with some regret because of the salutaryprinciple that favoured finality in litigation. But those cases were thoughttoo well entrenched to be overruled. There can therefore now be no doubtthat the mere fact that an allegation of fraud was raised and determined inthe foreign country does not prevent its being raised and relitigated in theenforcement proceedings. Regretfully or not, the Abouloff rule continuesas the general principle of Caribbean law.

Estoppel Per Rem Judicatum

The line advanced by the English Court of Appeal in House of Spring GardensLimited v Waite134 may be regarded as good law. In this case the plaintiffsobtained judgment against the defendants in Ireland for some £3 millionin damages for misuse of confidential information. In subsequent


proceedings in Ireland, two of the defendants sought to set aside thejudgment in the first action on the ground of fraud. The second action wasdismissed. The plaintiffs then brought an action in England to enforce thefirst judgment. They issued a summons under RSC Order 14. Thedefendants sought to defend the action on the ground that the firstjudgment had been obtained by fraud. It was held that the issue had beendecided against the defendants in the second action in Ireland, and couldnot be raised again in the English proceedings. The defendants wereestopped per rem judicatam. The rule in Abouloff was distinguished on theground that neither in that case nor in any of the subsequent cases had theissue of fraud been decided in a second and separate action in the foreigncourt.

The principle that an estoppel may be created on the question of fraudwhere there have been separate proceedings abroad was applied by theCourt of Appeal of St. Vincent and the Grenadines in relation to theunsuccessful appeal by Owens Bank to the Court of Appeal of Paris. It wasargued that the striking out of the fraud defence by the High Court of St.Vincent and the Grenadines activated the defence. This clearly involvedsignificant bending of the House of Spring Garden exception but the PrivyCouncil refused to consider whether this was too much of a stretch.

Continued Evolution of the Common Law

There is a possibility that, notwithstanding its codification in the statutoryregime, the courts could alter the common law. In the proceedings beforethe Board, the ‘interesting and important’ argument was presented thatwhere there was a statutory regime for enforcement, any common law rulethereby incorporated was frozen at the point of statutory incorporationand could not be subsequently altered by judicial development of the law.But where enforcement was sought under the common law regime thecourt of ultimate authority was free to develop the common law, so as tosuit modern requirements. In Bracco Lord Bridge had said that if the issuehad been governed by the common law alone, he would have thought itnecessary to consider the Abouloff rule afresh. In Etoile, Counsel for therespondent sought to steer his ship through the gap left open by the Houseof Lords but the Privy Council decided that it was unnecessary to undertakethat voyage ‘because there was a much shorter answer’ to the appeal.

This shorter answer was found in the rule that the defence of fraudmay be struck out in the enforcement proceedings pursuant to the inherentpower in the court to prevent abuse of its own process. This was the approach


adopted by the High Court and Court of Appeal of St. Vincent and theGrenadines and which was confirmed and applied by the Privy Council.According to Lord Templeman:

Where allegations of fraud have been made and determined abroad, summaryjudgment or striking out in subsequent proceedings are appropriate remedies inthe absence of plausible evidence disclosing at least a prima facie case of fraud. Nostrict rule can be laid down; in every case the court must decide whether justicerequires the further investigation of alleged fraud or requires that the plaintiff,having obtained a foreign judgment, shall no longer be frustrated in enforcing thatjudgment.135

Accordingly, both the House of Lords and the Privy Council have leftopen the possible reformation of the common law as embodied in Abouloffwhere enforcement proceedings are brought at common law rather thanunder the legislative regimes.136 And it is definite that the existence of thestatutory regime does not mean that the whole field is effectively governedby legislation.137 There are many countries including, as we have seen, theUnited States, with whom Caribbean countries have no legislation-basedreciprocal arrangements, and where the relationship governing enforcementcontinues to be controlled by the common law. Consequently, there willbe a day of reckoning when a decision will have to be taken on whetherdevelopments in the common law have restricted the availability of thedefence of fraud, beyond the House of Spring Garden case. Unless use of thenewly applied inherent power to prevent abuse of process renders the wholeissue redundant.

Ethical Restrictions on Pleading Fraud

Public allegations of fraud often have significant psychological, social andeconomic consequences. As an officer of the Court, counsel is under anobligation not to allege fraud unless personally persuaded that fraud wascommitted. The fraud defence should therefore never be conceived of atactical maneuver to rebut the presumption of non-impeachability. Intesting times the court may well have to ensure that those of its offers whomay be ethically challenged are reminded in appropriate terms of theiroaths of office.

Natural Justice

A foreign judgment may be impeached in an action for recognition orenforcement if it was obtained in proceedings that violated the principlesof natural justice. Under traditional law, natural justice was exclusivelyconcerned with procedural fairness. The parties must have had due notice


of the allegations and a proper opportunity to have been heard. There isthe further requirement that the tribunal should have been unbiased,although this is often subsumed under the rule relating to the defence offraud.

The question of whether the defendant had a fair chance to present hisor her side of the case arose in Langer v International Transport andEarthmoving138 There the plaintiffs asked a Bermuda court to exercise itspower under Order 14 to give summary judgment to enforce a defaultjudgment obtained in Illinois. The Illinois judgment had been given inrespect of an amended complaint. The original complaint had listed thefirst defendant and contained 63 paragraphs. The amendment sued threedefendants and the allegations were described in 152 paragraphs. Yet theamended complaint was never served on the first defendant. The Bermudacourts held that the foreign award given in respect of this amended complaintbreached the rules of natural justice because the defendant had never seenit and had never had the opportunity to answer to it.

The mere fact that the foreign judgment was given in default ofappearance by the defendant does not of itself constitute a contraventionof natural justice. What is required is the opportunity to appear and to beheard. In Raffle America Inc., v Kingsboro International Holding Co. Ltd.,139

it was agreed that a New York judgment given in default could be enforcedin Barbados. The foreign judgment had been given after notice had beenserved on the defendants by registered airmail and it was immaterial thatthe defendants claimed not to have received it.

Moreover, a major concern of the requirement for procedural fairness isthat both parties are treated equally. Thus, the fact, for example, that underthe foreign law none of the parties is competent to give personal evidencedoes not preclude enforcement.140 However, it might be otherwise if theexclusion of the evidence of one party can be shown to be unfairly prejudicialeven in the context of the exclusion of the evidence of the others.

In tandem with the development of the domestic law of judicial review,there is emerging the doctrine that a foreign judgment will not be recognisedor enforced if the proceedings in which it was obtained offended the conceptof substantive justice. The leading conflict case on this point is Adams vCape Industries Plc141 where it was decided that an American judgmentoffended the English court’s understanding of substantive justice and forthis reason, among others, would not be enforced. The American judgment,given in default of appearance by the defendants, decided a rather complexdispute involving some two hundred claimants alleging injuries caused by


exposure to asbestos. Even in this circumstance, substantive justice requiredthat damages be assessed and fixed objectively by the court, rather than, aswas the case here, by counsel for the claimants after the court had indicatedthe permissible average level of recovery.

Similarly, an order by a New York court that the defendant providessecurity in a sum in excess of US$10 million before the defendant couldcontinue the defence to the New York litigation was contrary to the Englishidea of substantial fairness. There was no reason for the New York court tothink the defendant could pay the security. Thus the New York judgmentobtained in default of defence could not be enforced in Bermuda.142

Public Policy

No action can be sustained on a foreign judgment contrary to the forum’sprinciples of public policy. But is equally true of any attempt to apply anyforeign law or rights allegedly incurred under any foreign law that is contraryto public policy. For the sake of convenience, then, public policy is discussedin the context of the exclusion of foreign laws.143

SEVERABILITY

A foreign judgment may be impeached in part, giving rise to the conceptualquestion of whether the part or parts not impeached may be enforced. Itappears to be settled law that the unimpeached part of the judgment maybe enforced provided it is properly severable from the other part or parts.In Raulin v Fischer144 the defendant, a young American lady, while recklesslygalloping her horse in Paris, collided with the plaintiff, a French officer,and seriously injured him. She was prosecuted under Article 320 of theFrench Penal Code, convicted, fined, and ordered to pay damages to theplaintiff, who happened to have been a French Colonel. In enforcementproceedings in England, the award of damages was held to be enforceable.There was power to dissect the judgment and enforce that civil aspectwhilst not enforcing the criminal penalty. It was of no moment that theforeign court refused to distinguish between the parts of the judgment oradopted a different classification.145

The question of the criteria for severability is more difficult and is yetto be directly addressed. A basic consideration must be whether the part tobe severed could stand on its own, or whether it is so inextricably boundup with the rest of the judgment as to be inseparable. But what determineswhether an aspect of the judgment has reached the point of inextricability?


First, the matter is clearly not one of whether the unimpeached part is,formally, subsidiary to the impeached part or parts, or vice versa. By allaccounts, the compensatory award in Raulin was subsidiary in the sensethat the main purpose of the proceedings was the criminal prosecution ofthe accused and damages were only considered after the intervention of theColonel. Yet it was severable even though the court awarded considerablymore to compensate than to punish.146 In Mayo-Perrott v Mayo-Perrott147 itwas held that a foreign order for costs was not severable from the mainaward. Although ancillary to a foreign divorce decree, the order could notbe sensibly separated from the decree in respect of which the costs hadbeen incurred. As the grant of the decree breached the forum’s publicpolicy, it followed that the order for costs was equally unenforceable.

Secondly, it may be the case that aspects of a foreign judgmentimpeachable for want of jurisdiction may be severable from aspects overwhich jurisdiction existed. Raeburn v Raeburn,148 decided in the High Courtof Antigua and Barbuda, confirmed the traditional rule that a foreign awardin respect of local land is not enforceable. With this may be comparedBurchell v Burchell,149 which held that a foreign award in respect of localland could be severed from the impeachable parts of the foreign judgment.

Finally, the criterion of severability may be related to the basis of theground for impeachment. Where aspects of a foreign judgment areunenforceable because of public policy, it is relatively easy to understandthat other parts may be enforced. It is more difficult to understand howany aspect of a judgment obtained in proceedings contrary to natural justicemay be enforceable, unless the onerous burden of proving that only therelevant aspects of the proceedings were so tainted is discharged. Fraudpresents similar problems. Although the deceit may be confined to a specificaspect of the case, there is a fundamental equitable principle that a personapproaching a Caribbean Court for relief must do so with clean hands.

RECOGNITION AS A DEFENCE

The enforcement of a foreign judgment necessarily entails its recognition.In addition however, a foreign judgment may be recognised for purelydefensive purposes. Recognition is based upon the same basic criteriagoverning enforcement, namely, that the judgment must have been givenby a court of competent jurisdiction, be final and conclusive, and be securefrom all legitimate defences. Such a judgment is a conclusive answer to an


action in the local forum on the original cause of action litigated in foreignforum.

One of the earliest cases on the point appears to be Ricardo v Garcias.150

Competent Tribunals in France gave judgment against Garcias in an actionbrought by him against persons with whom he had been connected in aloan transaction. The French action had sought an account from thesepersons and payment of his share of the profits in the loan. Afterwards, hefiled a bill in the Courts of Chancery against some of the same persons andin respect of the same matter. It was held that the French judgment was adefence to the English proceedings. Thus was provided a classical illustrationof a successful defendant in the foreign proceedings being able to raise thatjudgment as an estoppel against a subsequent suit in the forum.

An estoppel can also be raised by a successful plaintiff in respect ofmatters decided in that plaintiff ’s favour in the foreign proceedings. Thepresumption of unimpeachability is built upon the notion that issues ofjurisdiction and finality and conclusiveness have been decided in theplaintiff ’s favour. Etoile Commerciale SA v Owens Bank Ltd.,151 representsan instance where the plaintiff ’s successful answer to the defence of fraudin the foreign proceeding was held to constitute an estoppel per remjudicatam preventing their relitigation in the courts of St. Vincent and theGrenadines.

Application to defences based upon limitation periods could give anappearance of difficulty. In Harris v Quine152 lawyers started a case in theIsle of Man, suing for fees owing to them. The action failed because it hadbeen brought outside the three year period specified by the statute oflimitation. The equivalent English statute provided for a six year limitationperiod, so the lawyers started the same cause of action again in England. Itwas held that the English action could proceed since the Isle of Manjudgment did not destroy the actual cause of action, in that it did notextinguish the actual right to the fees. The foreign judgment merely heldthat, because of the limitation statute, the lawyers could not obtain a remedyin the Isle of Man. In other words, the foreign statute dealt with theprocedure for bringing the action, which is a matter governed by the law ofthe forum.153


JURISDICTION OF THE FORUM

A requirement that can be easily overlooked is that recognition andenforcement of foreign judgments at common law necessarily mean thatthe Caribbean court must have jurisdiction over the enforcement action.Mere possession by the defendant of real or personal property in the localforum will not be enough. Competence is based upon grounds forjurisdiction in personam, namely, service of process pursuant to presence,submission, or where there are relevant provisions, service out of thejurisdiction under Order 11 or its equivalent.

The same considerations apply as in establishing original jurisdictionover a private international law action. Thus in Colt Industries v Sarlie154

the plaintiffs, a New York company, obtained judgment in New York for adebt against the defendant, a Frenchman. It then issued a writ to enforcethe judgment in England and served it on the defendant while he wasstaying for a few days in a London hotel for reasons unconnected with thelitigation. It was held the English courts had jurisdiction in the enforcementproceedings. Even temporary presence not amounting to residence sufficedfor in personam jurisdiction. Competence was established provided thatthe defendant had not been ‘tricked’ into coming within the territorialjurisdiction so that proceedings could be instituted against him.

The traditional understanding is that there must be actual provisionwithin the rules of the Supreme Court authorising service ex juris. Theolder versions of Order 11 do not contain any authorisation for assumedjurisdiction to enforce any judgments or awards. Also, recent Caribbeanlegislative developments do allow assumption of jurisdiction but in respectof judgments given in the forum.155 Whether the Privy Council decision inWalsh v Deloitte & Touche156 challenges this traditional understanding isopen to debate. By contrast, the rules in England allow service out inrespect of a claim ‘brought to enforce any judgment or arbitral award.’157

The English rule clearly applies in those Caribbean territories that receiveEnglish law pursuant to their constitutional status as overseas dependentterritories incorporating English procedural law.

Whether the English Rule applies in those Caribbean countriesaccepting a jurisdiction similar to that exercised in the United Kingdomwas considered by the Supreme Court of The Bahamas in Commercial Bankof Kuwait S.A.K. v Central Bank of Iraq.158 The plaintiff obtained judgmentagainst the defendant in the United States of America and sought to enforce


the judgment in The Bahamas. The defendant had assets in The Bahamasbut did not maintain a presence there. The Rules of the Supreme Court ofThe Bahamas, unlike those in England, did not provide that service outwas permissible where the claim was brought to enforce any judgment oraward. Accordingly, even though by statute, the local jurisdiction was thesame as the English High Court over defendants who were not present andwho had not submitted, there was no competence over the defendants inthe instant case. As Barnett J (acting), stated:

In my judgment, to say that Order 11 extends the jurisdiction of the English court,is simply to say that the Court by its Rules Committee could by amending thatOrder enlarge the number of circumstances where the Court may exercise itsundoubted jurisdiction to assume jurisdiction over persons outside its territorialjurisdiction. I have deliberately used the words “jurisdiction” in that sentence toillustrate that the word can be used in many different contexts.

The rules Committee of this Court has not seen fit to extend Order 11 Rule 1in the manner that the Rules Committee of the English High Court did in the early1980s. The fact that the claim in the Writ is brought to enforce a judgment is nota circumstances in which this Court may authorise that notice of the Writ may beserved on a defendant outside of The Bahamas. In the circumstances, I mustrespectfully refuse the application by the intended Plaintiffs...

ENFORCEMENT BY STATUTE

A foreign judgment may be enforced without need for bringing freshproceedings. Under statutory regimes adopted in most Caribbean countries,a person may apply to the High Court for an order that the judgment beregistered for enforcement. Registration has the effect of treating thejudgment as if it had been rendered in the Caribbean country therebymaking available the state machinery for its enforcement without need forformal proceedings or judgment. The actual statutory regimes are basedupon and correspond to the Administration of Justice Act 1920, and theForeign Judgments (Reciprocal Enforcement) Act 1933 of the UnitedKingdom.159 The statutes apply, respectively, to judgments given in anypart of the commonwealth, and to any foreign judgments, although thereis the intention of eventually having a single regime equally applicable toall judgments given outside of local forum.160


Commonwealth Judgments

The term ‘judgment’ is defined in broad terms.161 It means any judgmentor order given or made by a court in any civil proceedings whereby a sumof money is payable, and includes arbitration awards. Arguably, this includesawards in matrimonial proceedings, at least those awards that include moneypayments.

Application based on Reciprocity

Caribbean legislation on the recognition of commonwealth judgmentsdistinguishes between United Kingdom and other Commonwealthjudgments. Registration of a United Kingdom is virtually automatic, beingsubject only to the substantive provisions of the Act.162 Where a judgmenthas been obtained in the United Kingdom against any person resident inthe United Kingdom, the Court must, on application of the successfulparty, issue a certified copy of the judgment for possible use in UnitedKingdom judicial proceedings.

By contrast, there is merely discretion to extend the Act toCommonwealth judgments given outside the United Kingdom. Suchdiscretion may only be exercised where the President, Governor General,Prime Minister, or Minister, as the case may be, is satisfied that reciprocalprovisions have been made by the legislature of that country for theenforcement of local judgments.163 That Official must make a declarationby order certifying application to the commonwealth country in question.It is customary to list certified countries in a Schedule to the Act.

This preliminary point has attracted considerable Caribbean litigation.In Bougu v Timmins164 the High Court of St. Vincent and the Grenadinesrefused registration of a Canadian judgment as there was no evidence thatthe appropriate order had been made in any Canadian court. Anotherstraightforward clarification was made in Sardina v Johnson.165 An attemptto argue for the registration in Barbados of a judgment given in Dominicaunder the regime governing foreign judgments had to be corrected by theCourt. As the Court said: ‘Dominica is a member of the Commonwealth’and the statutory provisions relating to registration of foreign judgmentson a reciprocal basis did not apply. Instead, the regime applicable toCommonwealth judgments did.

A more difficult question concerns the continued applicability of thestatutory framework to countries that have obtained their independence.The initial enactment of the regime and its extension to commonwealth


countries occurred in the early part of the twentieth century and sincethen many gained political independence. In the case of Fitzritson vDequazon166 there was an application for registration in Dominica of ajudgment given by the Supreme Court of Jamaica. Enforcement was resistedon the ground that the 1924 Order extending the regime to Jamaica hadbecome invalidated by the subsequent political evolution that country hadundergone in attaining independence. This contention was rejected andthe High Court of Dominica found in favour of the continued validity ofthe 1924 Order. It was immaterial that Dominica had, subsequent to theextension of the Order to Jamaica, adopted the more comprehensive ForeignJudgments (Reciprocal Enforcement) Act, which consolidated the previousregimes on enforcement of foreign judgments. The statutory provision didnot affect the issue under review, nor did the Order in Council, in theabsence of specific provision to the contrary, become invalid with regard toJamaica upon the attainment of independence by that State.

Time period for Registration

Application for registration must be made within twelve months of thedate of the foreign judgment, or such longer period as allowed by thecourt.167 However, the effluxion of time without any formal application foror the granting of an extension is not fatal. In an interesting judgment, thePrivy Council has held that the judicial grant of an extension may be bothretroactive and implicit.

Quinn v Pres-T-Con Ltd.,168 was a case in which the Trinidad plaintiffand her Trinidad legal advisers had problems keeping to time. Having hadto sue in England because of tardiness in meeting the Trinidad and Tobagostatute of limitation, they obtained an English judgment on October 22,1975 and made application made to register it in Trinidad and Tobago onOctober 27, 1976, some five days out of time. Cross J acceded to theapplication and gave the judgment debtors liberty to apply to set aside hisjudgment within 14 days. Their application before Warner J was based,among other things, on the failure to apply for registration within twelvemonths of the original judgment. The Judge refused to set aside theregistration, but the Court of Appeal reversed his decision on appeal.

The Privy Council reversed the Court of Appeal and restored the decisionof Judge. When the matter, which had been dealt with by Cross J on an exparte basis, had come before Warner J on an inter partes application, he hadfull jurisdiction to exercise his own discretion on the matter of the extensionof time. As there was no evidence of any prejudice caused to the judgment


debtors by the extension, there was only one way in which Warner J couldproperly have exercised his discretion. Any decision by him not allow theextra five days, ‘would, in the circumstances of the case, have been plainlywrong.’ As a matter of good practice, however,

Where an extension of time is needed, it would be better for the applicant forregistration to make an express application to the judge for such extension, and, ifthe judge allows the extension, for the fact of his having done so to be expresslyrecorded in his formal order. The following of such a practice would obviate thekind of difficulty which has caused so much trouble in this case.169

Discretion

Registration is discretionary, not as of right. The court must be persuadedthat, in all the circumstances of the case, registration is just andconvenient.170 Common law defences may become relevant here.Registration could hardly be just and convenient if the judgment wasobtained by fraud, in proceedings contrary to natural justice, or contraryto public policy.

Judgments which cannot be Registered

Under the statute, registration is not allowed in a number of circumstances.First, there are considerations related to the competence of the foreign

court. Registration is impossible if the original court acted withoutjurisdiction. So too, if the judgment debtor, being a person who was neithercarrying on business nor ordinarily resident within the jurisdiction, didnot voluntarily submit to the jurisdiction of the foreign court.171 Also, nojurisdiction exists if the defendant was not duly served with the process ofthe foreign court and did not appear, notwithstanding being ordinarilyresident or carrying on business there.172

These provisions were discussed in Maycock v International SeafoodsLtd.173 An application for the registration of a judgment of the High Courtof Guyana as a judgment of the High Court of Barbados was refused. Thejurisdiction of the Guyana Court had been based upon an order forsubstituted service on the defendant by way of registered mail to thedefendant’s registered office in Barbados. This was clearly insufficient underthe common law. These rules were said to be merely the application of thegeneral rule of international law that in a personal action a decree pronouncedin absentem by a foreign court to the jurisdiction of which the defendantin no way submitted himself, was an absolute nullity.174


Secondly, registration will be refused if the judgment debtor satisfiesthe Caribbean court either that an appeal is pending or that he is entitledand intends to appeal.175 This contrasts with the common law positionsomewhat where even with the pendency of an appeal a foreign judgmentis still regarded as final and conclusive.176

Thirdly, some of the defences available at common law are also expressedto be available under the statute.177 Registration must be denied if thejudgment was obtained by fraud. In this regard, it has been accepted thatthe common law must be taken as it was found at the time of the enactmentof the legislation. In effect Abouloff reigns supreme. However, the inherentpower to strike out the defence of fraud for abuse of the process of thecourt, necessarily applies equally to enforcement by registration as to doesto enforcement by common law action.178

Registration must also be refused if the judgment was in respect of acause of action which, for reasons of public policy or for other similarreason, could not have been entertained in the registering country. Whetherthe legislative wording makes the public policy defence narrower than thatat common law, is a matter for speculation.179 With reference to the othercommon law defences such as breach of the rules of natural justice, it issuggested that registration would be refused, in any event, at the forum’sdiscretion. Even if convenient it is unlikely to be ‘just’ to register such ajudgment.

Foreign currency

The rules in respect of the registration of Commonwealth judgments goback to the early 1920s and are in need of revision. Not surprisingly, theserules contained no provision for conversion of foreign currency into localcurrency. Those were the halcyon days of the British Empire and theinvincibility of the pound sterling. Notwithstanding the absence of expresslegislative fiat, Sardina v Johnson180 held that in accordance with commonlaw developments, a foreign judgment given in a foreign currency could beregistered as such in Barbados.

Effect of Registration

A judgment registered under the statute is, from the date of registration, ofthe same force and effect, and proceedings may be taken on it, as if it hadbeen originally obtained in the registering court.181 In relation to execution,the Caribbean court has the same control and jurisdiction over the judgmentas it has over similar judgments given by itself. A claimant is not deprived


of the right to sue at common law upon the obligation created by theforeign judgment but proceedings in this way is likely to be penalised incosts.182

An important consequence of treating the foreign judgment as if itwere a local judgment is that it should be obeyed timeously. In GrupoTorras SA v Sheikh Fahad Mohammed Al Sabah183 the Supreme Court ofThe Bahamas rejected an application for an order to stay enforcement of aforeign judgment which had been registered under the ReciprocalEnforcement of Judgments Act.184 The mere possibility of bankruptcyproceedings being brought against the judgment debtor was not sufficientreason for a stay. Borrowing from statements in the English White Bookregarding civil procedure governing local judgments, it was said that theCourt does not make a practice of depriving a successful litigant of thefruits of his litigation. Nor does it lock up funds to which he is prima facieentitled, pending an appeal.

Foreign Judgments

The objective of the statutory regime based upon the Foreign Judgments(Reciprocal Enforcement) Act 1933,185 is, among others, the eventualreplacement of the earlier legislative framework governing the registrationof United Kingdom, and other Commonwealth judgments. For this tooccur a specific declaration is required, that the foreign country is preparedto offer substantial reciprocity of treatment to judgments obtained in therelevant Caribbean country. In this way, it was intended that all foreignjudgments, whether Commonwealth or not, would ultimately be treatedequally.

While uniformity of application is at an advanced legislative stage insome countries,186 it remains the case that the old fault lines are still generallymanifest. The process of declaring reciprocal treatment is proceedingextremely slowly because of the absolute necessity to ensure reciprocity bythe foreign country whose judgment is to be enforceable in the local forumby registration. The net result is that there are relatively limitedopportunities for application of the foreign judgment regime.

An unsuccessful attempt was made to leap frog the need for domesticlegislative and executive intervention in the case of Cour D’Appel D’ Aix-en-Province.187 The applicant, who had obtained a French judgment in theamount of over 103 million French francs, succeeded in his ex parteapplication to the Supreme Court of The Bahamas for its registration.Registration was allowed pursuant to the United Kingdom Act of 1933. It


was accepted that the Order in Council made pursuant to section 7 of theAct of 1933, where the Act was extended to The Bahamas, meant that theFrench judgments could be registered in The Bahamas as in the UnitedKingdom.

However, on application by the judgment creditor, it was held thatthe registration had to be set aside. The exercise of the prerogative to extendthe Act to Her Majesty’s dominions (including The Bahamas) meant onlythat judgments obtained in certain courts in those countries would beplaced on the same footing as judgments obtained in the foreign countriesto which the Act applied or was extended. It could not have meant anyattempt to legislate concurrently for dominions since to do so would, in1933, have run counter to basic constitutional principles. At the time TheBahamas had representative institutions. Nor could inclusion of the 1933Act in the Revised Laws of The Bahamas cure the defect of lack ofparliamentary and executive intervention.

Although the statutory framework applicable to foreign judgments isbasically similar to the regime governing commonwealth judgments, thereare significant differences. The foreign judgment regime applies, potentially,to all foreign judgments, whether or not delivered in commonwealthcountries. ‘Judgments’ retain the same meaning as for commonwealthawards, but the term ‘action in personam’ is defined to expressly excludeany matrimonial cause. This means that the proceedings in connectionwith any of the following matters are not covered, that is to say, matrimonialmatters, administration of the estates of deceased persons, bankruptcy,winding up of companies, lunacy, or guardianship of infants.188 In at leastone jurisdiction, there is a provision allowing for recognition of judgmentsin rem but this appears to be tied to adjudication of actions in respect ofimmovable and movable property.189 As was held in Maple v Maple190 anoverseas divorce is not an action within the statutes providing for reciprocalenforcement but rather ‘proceedings’ within the meaning of the MatrimonialCauses Acts.

A judgment-creditor may apply to the High Court at any time withinsix years for the judgment to be registered, compared with 12 months forcommonwealth judgments. Application is based entirely upon reciprocity;there is no opportunity for automatic enforcement. But registration is ofright provided only that the judgment was final and conclusive betweenthe parties thereto, and there is payable thereunder a sum of money, notbeing sum payable in respect of taxes or a fine, or other penalty.


For the purpose of the statute a judgment is deemed final and conclusivenotwithstanding that an appeal is pending against it or that it may still besubject to appeal.191 No action for recovery of a sum payable under a foreignjudgment can be brought to enforce a judgment that could have beenregistered under the Act.192 In other words the foreign award obliteratesthe right to bring proceedings to enforce the foreign judgment. However,because of the non-merger rule, it is questionable whether this provisionprevents a plaintiff from suing on the original cause of action that gave riseto the foreign judgment.

Whilst registration may not, in the circumstances just described, berefused, it can be set aside. There are certain circumstances in which, uponapplication by the judgment debtor, the registration must be set aside andthere are other circumstances in which it may be set aside. Registrationmust be set aside if the foreign court had no jurisdiction in the circumstancesof the case. In an action in personam, the original court is deemed to havehad jurisdiction in the following cases, namely, where the judgmentdebtor:193

(a) submitted to the jurisdiction of the foreign court by voluntarilyappearing in the proceedings otherwise than for the purpose ofprotecting, or obtaining the release of property seized or threatenedwith seizure in the proceedings or of contesting the jurisdiction ofthat court; or

(b) was plaintiff, or counterclaims in the foreign proceedings; or

(c) had agreed to submit to the jurisdiction of the foreign court; or

(d) was at the time when proceedings were instituted, resident or hadits principal place of business in the foreign country; or

(e) had an office or place of business in the foreign country and theforeign proceedings were in respect of a transaction effected throughor at that office or place.

The other circumstances where registration must be set aside are thefollowing:194

(i) if the judgment is not one to which the Act applies;

(ii) if the judgment was registered in contravention of the Act;

(iii) if the judgment debtor did not receive notice in sufficient time toenable him to defend the proceedings and did not appear;

(iv) the judgment was obtained by fraud;


(v) enforcement would be contrary to the public policy of the countryof the registering court.

Registration may be set aside if the registering court is satisfied thatthe matter in dispute in the proceedings in the original court had previouslyto the date of the judgment been the subject of a final and conclusivejudgment by a court having jurisdiction in the matter.195 It is submittedthat this discretion may be properly exercised after reviewing the merits ofthe rival claims for enforcement. The mere fact of the discretion is arepudiation of the doctrinaire tendency simply to facilitate enforcement ofthe judgment that was first in time.196

CARIBBEAN COURT OF JUSTICE

The recent establishment of the Caribbean Court of Justice (CCJ) has addeda new dimension to the enforcement of foreign judgments. A critical aspectof the creation of the Caribbean community is the development of rightconditions for an internal market among Member States, allowing,eventually, for the free movement of goods, persons, and services betweenthose states. An important feature of this process is the facilitation of theenforcement of judgments within the single market and economy.

Within the European Union, there are conventional provisions requiringthe free circulation and enforcement of judgments. A judgment given inone Member State in a civil or commercial matter must, broadly speaking,be recognised by all contracting states to the Union, subject to limitedexceptions.197

The situation in CARICOM is not nearly as advanced. There is generallyno obligation to enforce judgments of Member States outside of the regimeestablishing enforcement based upon reciprocity, although there areoccasionally legislative admonitions to this direction. Thus the TransnationalCauses of Action (Product Liability) Act of Dominica198 provides that‘Where judgment is given in a transnational cause of action in a CARICOMState, the Court shall in accordance with any applicable internationalconvention and customary practice encourage and promote the enforcementof that judgment in Dominica and other CARICOM territories.’

This is taken much further under the Agreement establishing theCCJ.199 Contracting Parties agree to take all necessary steps, includingenactment of legislation to ensure that they all act in aid of the Court.Further, any judgment, decree, order or sentence of the Court given in


exercise of its jurisdiction, ‘shall be enforced by all courts and authoritiesin any territory of the Contracting Parties as if it were a judgment, decree,order or sentence of a superior court of that Contracting Party.’200

OECS JUDGMENTS

A single Supreme Court (High Court and Court of Appeal) is establishedfor the Member States of the Organisation of Eastern Caribbean States.201

Judgments rendered by this court are therefore enforceable in each of theseven countries over which the Court exercises jurisdiction.202 This isessentially equivalent to the situation just described in relation to theEuropean Union. Decisions by the Privy Council on appeal from the EasternCaribbean Supreme Court should likewise have direct effect within thejurisprudence of each of the Member States. So will decisions of the CCJ.

Part 72 of the Civil Procedural Rules adopted in 2000203 guide theCourt in relation to the formal procedure to be followed for the reciprocalenforcement of foreign judgments. There are provisions on application forregistration, security for costs, order for registration, register of judgments,notice of registration, application to set aside registration, issue of execution,and certification of a copy of the Court’s judgment for enforcement insome other country. The Rules are subject to any enactment in force in aMember State or Territory relating to reciprocal enforcement of judgments.

NOTES

1. It could be argued that where such legislation exists, it is the legislation that is givendirect domestic effect, rather than the foreign judgment per se.

2. If the country is part of a federation, the prohibition, if it exists, is likely to be foundin the constitutional arrangements. See generally, Adams v Cape Industries Plc [1990]1 Ch.433, at 553-555.

3. One of the earliest cases on the subject was Geyer v Aguilar (1798) 7 Term Rep 681.

4. See e.g., ss. 2, 7, Foreign and Commonwealth Judgments (Reciprocal Enforcement)Act (Cap. 201), (Barbados); s. 2 (1), The Judgments and Awards (ReciprocalEnforcement) Act (Cap. 183), s. 2 (1), The Judgments (Foreign) (ReciprocalEnforcement) Act (Cap. 184), (Jamaica); s. 2, Judgments Extension Act, (Chap.5:02), s. 2 (1), Overseas Judgments (Reciprocal Enforcement) Act, 1960 (Cap. 7),kept in force by the Amendment (Adaptation) Order 1962, (Trinidad and Tobago).

5. Winston Anderson, Private International Family Law. Forthcoming.

6. Cable Systems Development Co. v Shoupe (1986) 39 WIR 1 at 3.


7. (22 Statutes 441). For incorporation into Caribbean law, see e.g., Part I, Foreign andCommonwealth Judgments (Reciprocal Enforcement) Act (Cap. 201), (Barbados);The Judgments and Awards (Reciprocal Enforcement) Act (Cap. 183), (Jamaica);Judgments Extension Act, (Chap. 5:02), (Trinidad and Tobago).

8. (22 Statutes 447). For incorporation into Caribbean law, see e.g., Part II, Foreign andCommonwealth Judgments (Reciprocal Enforcement) Act (Cap. 201), (Barbados);The Judgments (Foreign) (Reciprocal Enforcement) Act (Cap. 184), (Jamaica);Overseas Judgments (Reciprocal Enforcement) Act, 1960 (Cap. 7), kept in force bythe Amendment (Adaptation) Order 1962, (Trinidad and Tobago).

9. Agreement Establishing the Caribbean Court of Justice, done at St. Michael, Barbadoson the February 14, 2001. Entered into force on July 23, 2002 when Guyana joinedSt. Lucia and Barbados in depositing its instrument of ratification.

10. The Eastern Caribbean Supreme Court Agreement, 1982. Text in Winston Anderson,Caribbean Instruments on International Law, (Stone Publications, 1994), at 411.

11. Henderson v Henderson (1843) 3 Hare 100; Arnold v National Westminster Bank Ltd.[1991] 2 AC 93. These cases affirm that it is for the common good that there shouldbe an end to litigation: interest rei publicae ut sit finis litum.

12. See e.g., Carl Zeiss Stiftung v Rayner and Keeler Ltd. (No 2) [1967] 1 AC 853 at 966.

13. Section 34, Civil Jurisdiction and Judgments Act 1982 (11 Statutes 1104, 22 Statutes509, 27 Statutes 852, 1 Statutes 24), (United Kingdom).

14. The writer is unable to locate any legislative provision on the point, but the multiplicityjurisdictions and the incompleteness of reporting and research facilities, make itmore foolhardy than normal to assert the negative.

15. Slade LJ in Adams v Cape Industries Plc [1990] Ch 433 at 1037.

16. Geyer v Aguilar (1798) 7 Term Rep 681.

17. John O’Brien, Smith’s Conflict of Laws, (Cavendish Publishing Limited, 1999) at 263,suggesting that the comity idea may have been a consequence of the writings ofUlrich Huber (1634-94).

18. Slade LJ in Adams v Cape Industries Plc [1990] Ch 433 at 1039.

19. (1870) LR 6QB 155 at 159. See too, Adams v Cape Industries Plc [1990] 1 Ch.433,at 552-553.

20. Unreported Judgment of the Court of Appeal for Bermuda, Civil Appeal No. 26 of1982; dated April 11, 1983.

21. Ibid. See to similar effect, Humphrey v Jolly Roger Cruises Inc., Unreported, HighCourt of Barbados, No. 61 of 1998; dated March 26, 1998, (at 9) (adopting obligationtheory as expounded in Adams v Cape Industries Plc [1990] Ch. 433).

22. H.L. Ho ‘Policies Underlying the Enforcement of Foreign Commercial Judgments’(1997) Vol. 46 ICLQ 443-462.

23. Cf. Russell v Smyth, (1842) M. & W.; 152 E.R. 343 at 346, 347 per Lord Abinger CB,and Parke B.


24. Which, for historical reasons, are enforceable in the Caribbean without regard toreciprocity.

25. See e.g., Foreign and Commonwealth Judgments (Reciprocal Enforcement) Act(Cap. 201), (Barbados); The Judgments and Awards (Reciprocal Enforcement) Act(Cap. 183), The Judgments (Foreign) (Reciprocal Enforcement) Act (Cap. 184),(Jamaica); Overseas Judgments (Reciprocal Enforcement) Act, 1960 (Cap. 7), keptin force by the Amendment (Adaptation) Order 1962, (Trinidad and Tobago).

26. Unreported decision of the High Court of Barbados, No. 1677 of 1993, judgmentdated December 16, 1996 (King J).

27. [1953] 2 All ER 794.

28. See Re Trepca Mines [1960] 3 All ER 304; [1960] 1 WLR 1273. Hudson LJ suggestingthat Travers v Holly was restricted to a judgment in rem affecting matrimonial statusand that it had never been followed outside the matrimonial area.

29. Morguard Investments Ltd. v De Savoye (1991) 76 DLR (4th) 256.

30. Hunt v T & N Plc (1993) 109 DLR 16.

31. Supra, Chap 5. See Winston Anderson, (1993) Vol. 42 ICLQ 697, at 704.

32. See.g., CPR 2002, R 12, 13, 15; (Jamaica); CPR 2000, R 12, 13, 15 (ECSC). Andsee generally, rules 71.1-71.14, Rules of the Supreme Court of the United Kingdom(‘White Book’). See also Grant v Easton (1883) 13 QBD 302.

33. Colt Industries v Sarlie (No. 2) [1966] 1 All ER 673, [1966] 1 WLR 440.

34. (1808) 9 East 192.

35. (1870) LR 6 QB 155; [1861-73] All ER Rep 988.

36. (1870) LR 6 QB 155 at 160.

37. Emanuel v Symon [1908] 1 KB 302 at 309.

38. E.g., Malone, Snr. J. in Triangle Refineries, Inc. v Carle, Unreported Judgment of theSupreme Court of The Bahamas, No. 1045/1988; dated September 22, 1988, (at 3).

39. Adams v Cape Industries plc [1990] Ch 433, [1991] 1 All ER 929. Nebraska Daires Inc.,v Tropical Trading Unreported decision of the High Court of Barbados, No. 1677 of1993, judgment dated December 16, 1996 (King J.).

40. See e.g., Jaffrey, Introduction to the Conflict of Laws, (1987) at 224, basing thisproposition upon ambiguous statements of Blackburn J in Emanuel v Symon [1908]1 KB 302 at 309.

41. Carrick v Hancock (1895) 12 TLR 59, at 60.

42. Forbes v Simmons (1914) 20 DLR 100.

43. [1990] Ch 433 at 519.

44. This question was expressly left open by the Court of Appeal in Adams v CapeIndustries Plc [1990] Ch 433 at 518.

45. [1894] AC 670.


46. John O’Brien, Smith’s Conflict of Laws, (Cavendish Publishing Litmited, 1999) at266.

47. [1894] AC 670 at 683-684, per Lord Selborne, delivering the opinion of the PrivyCouncil.

48. CMV Clarkson & Jonathan Hill, Jaffrey on the Conflict of Laws, (Butterworths, 1997)at 152.

49. Supra, Chap 4.

50. A view urged by Fawcett, ‘A New Approach to Jurisdiction over Companies in PrivateInternational Law’ (1988) 37 ICLQ 645.

51. [1990] Ch 433.

52. Humphrey v Jolly Roger Cruises Inc., Unreported, High Court of Barbados, No. 61 of1998; dated March 26, 1998 at 9.

53. Following Littauer Glove Company v F W Millington (1920) Ltd. (192) 44 TLR 746.

54. Unreported, High Court, Barbados, No. 61 of 1998, dated March 26, 1998 at 9.

55. Counsel for the plaintiffs cited several Canadian cases in support of this proposition,including: DeSavoye v Morguard Investment Ltd. 76 DLR 256, McMickle v Van Straaten,93 DLR 74; Moses v Shore Boat Builders Ltd. 106 DLR 654.

56. [1894] AC 670.

57. Humphrey v Jolly Roger Cruises Inc., Unreported, High Court of Barbados, No. 61 of1998, dated March 26, 1998.

58. As was suggested in the case of Vogel v R and A Kohnstamm [1973] 1 QB 133(Ashword J); see Cohn (1972) 21 ICLQ 157.

59. [1997] CILR 409.

60. Adams v Cape Industries Plc [1990] Ch 433, at 1026:

We do not accept as a matter of law that the court is entitled to lift the corporateveil as against a defendant company which is the member of a corporate groupmerely because the corporate structure has been used so as to ensure that the legalliability (if any) in respect of particular future activities of the group (andcorrespondingly the risk of enforcement of that liability) will fall on anothermember of the group rather than the defendant company. Whether or not this isdesirable, the right to use a corporate structure in this manner is inherent in ourcorporate law.

61. Schibsby v Westenholz (1870) L.R. 6 Q.B. 155, at 161; Emanuel v Symon [1908] 1 KB302; Canada Inc. v Socoa [1997] CILR 409.

62. Nebraska Daires Inc., v Tropical Trading Unreported decision of the High Court ofBarbados, No. 1677 of 1993, judgment dated December 16, 1996 (King J). Murphyv Sivajothi [1999] 1 WLR 467.

63. Unreported Judgment of the Supreme Court of The Bahamas, No. 1383 of 1987;dated December 21, 1990.

64. Harris v Taylor [1915] 2 KB 580, [1914-15] All ER 366; as affirmed in Henry vGeopresco, [1976] QB 726, [1975] 2 All ER 702.


65. (1988) 35 WIR 379. See Winston Anderson, (1999) Vol. 42 ICLQ 157.

66. Unreported, Court of Appeal, Trinidad and Tobago, Civil Appeal No. 73 of 1980,dated July 29, 1985, at 5-6, expressly adopting the words of Roskill LJ in Henry vGeopresco [1975] 2 All ER 702 at 720.

67. Unreported, Court of Appeal, Bermuda, Civil Appeal No, 20 of 1981; dated April15, 1982.

68. [1976] QB 726.

69. (1885) 5 HL Cas. 811.

70. [1975] 2 All ER 702. Delivering the judgment of the Court, Roskill LJ found that thedefendants had submitted to the jurisdiction of the foreign court by other actionswhereby the defendants implicitly acknowledged the court’s jurisdiction. Hecontinued:

We therefore say no more than that we are not deciding that an appearance solelyto protest against jurisdiction is, without more, a voluntary submission.

Ibid., at 719. Note that this question was not answered in Re Dulles [1951] Ch 265,which concerned submission to the forum (rather than the foreign court); nor inHarris v Taylor [1915] 2 KB 580, which concerned the effect of a conditional appearanceto in a foreign court.

71. Unreported Judgment of the Supreme Court of The Bahamas, dated February 28,1985 (Adams J).

72. Winston Anderson, ‘Forum Non Conveniens Strikes Again’ (1998) vol. 23 No. 3JECS 77; David W. Robertson, ‘The Federal Doctrine of Forum Non Conveniens: AnObject Lesson in Uncontrolled Discretion’ 29 Texas International Law Journal, 353,(1994).

73. See e.g., s. 11 (2) (a), Foreign and Commonwealth Judgments (ReciprocalEnforcement) Act (Cap. 201), (Barbados); s. 6 (2) (a), The Judgments (Foreign)(Reciprocal Enforcement) Act (Cap. 184), (Jamaica); s. 6 (1) (ii), Overseas Judgments(Reciprocal Enforcement) Act, 1960 (Cap. 7), kept in force by the Amendment(Adaptation) Order 1962, (Trinidad and Tobago).

74. Henry v Geopresco International Ltd., [1976] QB 726.

75. (1998) 52 WIR 37.

76. Copin v Adamson [1968] 2 Lloyds Rep 394, NSW CA.

77. Unreported, High Court, Barbados, No. 1677 of 1993, dated December 16, 1996(King J).

78. [1962] 2 QB 116, [1961] 3 All ER 1.

79. [1962] 2 QB 116 at 123. In the final analysis, the defendant was held not to be liablein the enforcement proceedings in England because the judgment was not final andconclusive. (Austrian law had no doctrine of merger of the original debt in thejudgment; the judgment against the partnership was not enforceable against theindividual partners without initiation of separate proceedings). This case was


distinguished in Nebraska Daires Inc., v Tropical Trading Unreported decision of theHigh Court of Barbados, No. 1677 of 1993, dated December 16, 1996 (King J) onthe ground that the defendant in Nebraska “did not transact his business through anagent nor did it have any registration in the public records of that State which wouldallow Blohn’s case to be called in aid.”

80. Lewis (1961) 10 ICLQ 910; Carter (1962) 38 BYIL 493.

81. Vogel v R.A. Kohnstamm Ltd. [1973] 1 QB 116, [1971] 2 All ER 1428.

82. Adams v Cape Industries plc [1990] Ch 433 at 463-467.

83. Douglas v Forrest (1828) 4 Bing 686; Schibsby v Westenholz (1870) LR 6 QB 155 at161; Emanuel v Symon [1908] 1 KB 302 at 309; Harris v Taylor [1915] 2 KB 580 379at 388; Blohn v Desser [1962] 2 QB 116 at 123; Adams v Cape Industries Plc, [1990]Ch 433 at 515.

84. Cheshire and North’s Private International Law (Butterworths, 13th edn., 1999) at419-420.

85. Emanuel v Symon [1908] 1 KB 302.

86. Schibsby v Westenholz (1870) LR 6 QB 155.

87. Dunbee Ltd v Gilman & Co (Australia) Pty Ltd [1968] 2 Lloyd’s Rep 394.; NebraskaDaires Inc., v Tropical Trading Unreported, High Court of Barbados, No. 1677 of1993, dated December 16, 1996 (King J).

88. Morguard Investments Ltd. v De Savoye (1991) 76 DLR (4th) 256.

89. Nebraska Daires Inc., v Tropical Trading Unreported decision of the High Court ofBarbados, No. 1677 of 1993, judgment dated December 16, 1996 (King J).

90. Nouvion v Freeman (1889) 15 App Cas. 1, 62 LT 189.

91. Colt Industries v Sarlie (No. 2) [1966] 1 WLR 1287, [1966] 3 All ER 85.

92. See e.g., s. 12 (1), Foreign and Commonwealth Judgments (Reciprocal Enforcement)Act (Cap. 201), (Barbados); s. 7 (1), Judgments (Foreign) (Reciprocal Enforcement)Act (Cap. 184), (Jamaica); s. 7 (1) Overseas Judgments (Reciprocal Enforcement)Act, 1960 (Cap. 7), kept in force by the Amendment (Adaptation) Order 1962,(Trinidad and Tobago).

93. Cf. Petereit v Babcock International Holdings Ltd. [1990] 2 All ER 135.

94. Grupo Torras SA v Sheikh Fahad Mohammed Al Sabah, Unreported, Supreme Courtof The Bahamas, Common Law Side, 2000 No. 579, dated March 2001. Isaacs, J(Actg.), adopting a portion of the text provided in the English White Book acceptedthat the Court does not “make a practice of depriving a successful litigant of the fruitsof his litigation, and locking up funds to which prima facie he is entitled” pending anappeal (The Annot Lyle (1886) 11 P. 114, p. 116, C.A.; Monk v Bartram [1891] 1 QB346); and this applies not merely to execution but also to the prosecution ofproceedings under the judgment or order appealed from. Ibid.

95. Unreported, Supreme Court of The Bahamas, Common Law Side No. 1045/1988;dated September 22, 1988.


96. Russell v Smyth (1842) 11 LJ Ex 308, 9 M & W 810.

97. (1998) 52 WIR 37.

98. Unreported Judgment of the Supreme Court of The Bahamas, No. 1383 of 1987;dated December 21, 1990.

99. (1808), 1 Camp. 253.

100. [1924] 1 KB 807, [1924] All ER 314.

101. See too Ashmore v Clarke, Unreported, High Court, Barbados, dated May 8, 1979.Contrast the case of Harrop v Harrop [1920] 3 KB 386, 90 LJKB 101. (Legislation inthe state of Perak provided that where any person neglected or refused to maintainhis wife or child, a magistrate may order him to make allowance for their maintenance.An action to enforce a magistrate’s order was denied in English proceedings becausethe legislation gave the magistrate the power to vary the amount to be paid.)

102. See e.g., Maintenance Orders (Reciprocal Enforcement) Act (Cap. 217), (Barbados);Maintenance Orders (Facilities For Enforcement) Act 1987, (Jamaica); MaintenanceOrders (Enforcement) Act, (Chap. 45: 53), (Trinidad and Tobago). See also, Ashmorev Clarke, Unreported, High Court of Barbados, dated May 8, 1979.

103. [1997] CILR Notes - 10.

104. Ibid.

105. Menendez v Sawyer III Unreported, Supreme Court, The Bahamas, No. 1383 of1987; dated December 21, 1990.

106. Simpson v Fogo (1863) 1 H. & M. 195.

107. (1870) LR 6 QB 139, 40 LJQB 62.

108. [1965-70] 2 LRB 202.

109. This decision is very close to the line because this was a issue related to the jurisdictionof the foreign court, which in turn was decisive as to whether an obligation wascreated by the judgment (Schibsby v Westenholz (1870) LR 6 QB 155). On the otherhand, there was no allegation of fraud (contrast Middleton v Middleton [1967] P 62.)The assumption on which the foreign court acted was acquiesced in by both parties,which could arguably give rise to the defence of failing to raise an available defence inthe foreign proceedings (Sardina v Johnson (1977) 30 WIR 1), although in theBanque D’Investissements Mobiliers et Financement case the burden was on the judgmentcreditor to establish that the judgment debtor was domiciled outside of the UnitedKingdom. In any event, Banque D’Investissements Mobiliers et Financement was a caseon enforcement by registration under the relevant legislation, and therefore a case onenforcement on the basis of reciprocity rather than on the basis of obligation, per se.

110. Pemberton v Hughes [1899] 1 Ch 781 at 791.

111. (1863) 15 CB NS 341, 33 LJCP 78.

112. [1899] 1 Ch 781.

113. H.E. Read, Recognition and Enforcement of Foreign Judgments (1938), at 100.


114. (1977) 30 WIR 1.

115. De Cosse Brissac v Rathbone (1861) 6 H & N 301, 30 LJ Ex 238.

116. The most famous exception is the stipulation of the time allowed for bringing anaction in respect of adverse possession which is regarded as a rule of substance: seefurther, Chap. 7, infra.

117. See e.g., Huber v Steiner (1835) 2 Bing NC 202, [1835-42] All ER 159; Harris vQuine (1869) LR 4 QB 653, 20 LT 947.

118. (1988) 35 WIR 379 (PC).

119. Quinn v Pres-T-Con Ltd., Unreported, Trinidad and Tobago High Court No. 2745/76; February 8, 1980.

120. Quinn v Pres-T-Con Ltd., Unreported, Trinidad and Tobago Court of Appeal (CivilJurisdiction), Appeal No. 73 of 1980; dated July 29, 1985.

121. Winston Anderson, ‘Enforcement of Foreign Judgments and the Enforcing Court’sOwn Statute of Limitation’(1999) 9 Carib. L.R. 157.

122. Red Sea Insurance Co v Ltd v Bouygues SA [1995] 1 AC 190, [1994] 3 All ER 749.

123. Winston Anderson, ‘Enforcement of Foreign Judgments Founded Upon A Cause ofAction Unknown in the Forum’ (1993) Vol. 42 ICLQ 697, discussing Re Macartney,[1921] 1 Ch. 522; De Brimont v Penniman (1873) 10 Blatchford Circuit Ct. Rep.436; Burchell v Burchell (1926) 58 Ont. L.R. 515, Phranzes v Argenti [1960] 2 Q.B.19. The unifying ground for the refusal of enforcement was said to be thatconsiderations of public policy.

124. (1986) 39 WIR 1.

125. Ibid., at 5.

126. [1995] 1 AC 432 (PC).

127. Unreported, High Court, Virgin Islands, Suit No. 32 of 1974; September 9, 1976.

128. Ibid.

129. (1882) 10 QBD 295, [1881-5] All ER 307.

130. Vadala v Lawes (1890) 25 QBD 310, [1886-90] All ER Rep. 853.

131. Syal v Heyward [1948] 2 KB 443.

132. [1992] AC 443 (HL).

133. [1995] 1 WLR 44 (PC).

134. [1991] 1 QB 241.

135. [1995] 1 WLR 44 (PC), at 51.

136. Nor is the decision in Henry v Geopresco International Ltd. [1976] QB 726, [1975] 2All ER 702 immediately relevant because that case was concerned with the converse,that is, arguing back from the statute to determine the common law.

137. Collier, (1992) CLJ 441.


138. Unreported, Court of appeal for Bermuda, Civil Appeal No. 26 of 1982; dated April11, 1983. See also Jacobsen v Faucon (1927) 138 LT 386.

139. (1998) 52 WIR 37.

140. Scarpetta v Lowenfeld (1911) 27 TLR 509.

141. [1990] Ch 433.

142. Muhl v Arora Insurers [1997/98] Offshore Financial Law Reports 198.

143. Infra, Chap. 7.

144. [1911] 2 KB 93.

145. Under the Privy Council decision in Huntington v Attrill ([1893] AC 150, 68 LT 326)it was for the forum to determine the substance of the right sought to be enforced,irrespective of any opinion or view expressed by the foreign court.

146. The fine was in the amount of 100 francs whilst the compensation was for 15,000francs: [1911] 2 KB 93 at 94.

147. [1958] CLY 501, [1958] IR 336.

148. Unreported, High Court, Antigua and Barbuda, Suit No. 6 of 1988; dated March20, 1997. See Winston Anderson, ‘Foreign Orders and Local Lands’ (1999) Vol. 48ICLQ 117.

149. (1928) 58 QLR 527.

150. (1845) 12 Cl & F. 368; 8 ER 1450. See also Jacobsen v Fraucon (1927) 72 Sol. Jo.121; 138 LT 386.

151. Unreported, Court of Appeal of Saint Vincent and the Grenadines, Civil Appeal No.7 of 1991; dated April 4, 1993.

152. (1869) LR 4 QB 653.

153. See Huber v Steiner (1835) 2 Bing NC 202. See further, Chap 7, infra.

154. [1966] 1 All ER 673, [1966] 1 WLR 1287.

155. Order 11, Rule 1 (1) (n), The Rules of The Supreme Court 1985 (title 8), (Bermuda);Rule 7.3 (5), CPR 2002, (Jamaica); Rule 7.3 (5), CPR 2000, (ECSC).

156. (2001) 59 WIR 30.

157. Order 11, Rule 1 (1) (m), Order 11, RSC, (Supplt. No. 51, August 1987) (UnitedKingdom).

158. Unreported. No. 972 of 1996; dated September 30, 1996. (Barnett J (Acting)).

159. A point acknowledged by the Privy Council in Owens Bank Limited v Etoile CommercialeSA [1995] 1 WLR 44 at 50 (Lord Templeman). See generally: Foreign andCommonwealth Judgments (Reciprocal Enforcement) Act (Cap. 201), (Barbados).The Judgments and Awards (Reciprocal Enforcement) Act (Cap. 183), s. 2 (1), TheJudgments (Foreign) (Reciprocal Enforcement) Act (Cap. 184), (Jamaica).Commonwealth Countries (Enforcement) Act 1921 (Cap. 82), Foreign Judgments(Reciprocal Enforcement) Act 1958 (Cap. 87), St. Vincent and the Grenadines).


Judgments Extension Act, (Chap. 5:02), Overseas Judgments (ReciprocalEnforcement) Act, 1960 (Cap. 7), kept in force by the Amendment (Adaptation)Order 1962, (Trinidad and Tobago).

160. The Foreign Judgments (Reciprocal Enforcement) Act (Cap. 7:04), (Guyana) isintended to apply to all judgments given in courts outside Guyana. In this respect itseeks to abolish the distinction between ‘commonwealth’ and ‘foreign’ judgments.See esp. s. 9(2). The consolidation into a single regime in the other Caribbean statesis proceeding extremely slowly because of the need to ensure reciprocity of treatmentby the foreign country whose judgment is to be enforceable in the local forum byregistration.

161. See e.g., s 2, Foreign and Commonwealth Judgments (Reciprocal Enforcement) Act(Cap. 201), (Barbados); s. 2 (1), The Judgments and Awards (Reciprocal Enforcement)Act (Cap. 183), (Jamaica); s. 2, Judgments Extension Act, (Chap. 5:02), (Trinidadand Tobago).

162. See e.g., s. 3, Foreign and Commonwealth Judgments (Reciprocal Enforcement) Act(Cap. 201), (Barbados); s. 3, The Judgments and Awards (Reciprocal Enforcement)Act (Cap. 183), (Jamaica); s. 3, Judgments Extension Act, (Chap. 5:02), (Trinidadand Tobago).

163. See e.g., s. 6, Foreign and Commonwealth Judgments (Reciprocal Enforcement) Act(Cap. 201), (Barbados); s. 6, The Judgments and Awards (Reciprocal Enforcement)Act (Cap. 183), (Jamaica); s. 9, Judgments Extension Act, (Chap. 5:02), (Trinidadand Tobago).

164. Unreported, High Court, St. Vincent and the Grenadines, Suit No. 18 of 1973,dated March 3, 1973.

165. (1977) 30 WIR 1.

166. Unreported, High Court, Dominica, Suit No.. 76 of 1970, dated February 18, 1970.

167. See e.g., s. 3 (1), Foreign and Commonwealth Judgments (Reciprocal Enforcement)Act (Cap. 201), (Barbados); s. 3 (1), The Judgments and Awards (ReciprocalEnforcement) Act (Cap. 183), (Jamaica); s. 3, Judgments Extension Act, (Chap.5:02), (Trinidad and Tobago).

168. (1988) 35 WIR 379.

169. Ibid., at 385.

170. See e.g., s. 6, Foreign and Commonwealth Judgments (Reciprocal Enforcement) Act(Cap. 201), (Barbados); s. 6, The Judgments and Awards (Reciprocal Enforcement)Act (Cap. 183), (Jamaica); s. 9, Judgments Extension Act, (Chap. 5:02), (Trinidadand Tobago). Akande v Balfour Beatty Construction Ltd [1998] I Pr 110 at 123.

171. See e.g., s. 3 (2), (a), (b), Foreign and Commonwealth Judgments (ReciprocalEnforcement) Act (Cap. 201), (Barbados); s. 3 (2), (a), (b), The Judgments andAwards (Reciprocal Enforcement) Act (Cap. 183), (Jamaica); s. 4, (a), (b), JudgmentsExtension Act, (Chap. 5:02), (Trinidad and Tobago).

172. See e.g., s. 3 (2), (c), Foreign and Commonwealth Judgments (ReciprocalEnforcement) Act (Cap. 201), (Barbados); s. 3 (2), (c), The Judgments and Awards


(Reciprocal Enforcement) Act (Cap. 183), (Jamaica); s. 4, (c), Judgments ExtensionAct, (Chap. 5:02), (Trinidad and Tobago).

173. (1984) 37 WIR 69. See also, Akande v Balfour Beatty Construction Ltd [1998] I Pr 110at 123.

174. Ibid., at 71, citing Sirdar Gurdyal Singh v Rajah of Faridkote [1894] AC 670; LittauerGlove Company v F W Millington (1920) Ltd. (1928) 44 TLR 746.

175. See e.g., s. 3 (2), (e), Foreign and Commonwealth Judgments (ReciprocalEnforcement) Act (Cap. 201), (Barbados); s. 3 (2), (2), The Judgments and Awards(Reciprocal Enforcement) Act (Cap. 183), (Jamaica); s. 4 (e), Judgments ExtensionAct, (Chap. 5:02), (Trinidad and Tobago).

176. Colt Industries v Sarlie (no 2) [1966] 1 All ER 673, [1966] 1 WLR 440.

177. See e.g., s. 3 (2), (c), (d), (f ), Foreign and Commonwealth Judgments (ReciprocalEnforcement) Act (Cap. 201), (Barbados); s. 3 (2), (c), (d), (f ), The Judgments andAwards (Reciprocal Enforcement) Act (Cap. 183), (Jamaica); s. 4, (c), (d), (f ),Judgments Extension Act, (Chap. 5:02), (Trinidad and Tobago).

178. See Privy Council in Owens Bank Limited v Etoile Commerciale SA [1995] 1 WLR 44.

179. Note that Cable Systems Development Co. v Shoupe (1986) 39 WIR 1 drew a cleardistinction between application of public policy in domestic as compared withtransnational cases.

180. (1977) 30 WIR 1, at 4-7.

181. See e.g., s. 3 (3), Foreign and Commonwealth Judgments (Reciprocal Enforcement)Act (Cap. 201), (Barbados); s. 3 (3), The Judgments and Awards (ReciprocalEnforcement) Act (Cap. 183), (Jamaica); s. 5, Judgments Extension Act, (Chap.5:02), (Trinidad and Tobago).

182. Such a claimant is not entitled to the costs of the action unless the application toregister had been refused or unless the court otherwise orders.

183. Unreported. Supreme Court of The Bahamas. 2000 No. 579; dated March 2001.

184. Chap. 67.

185. See e.g., Foreign and Commonwealth Judgments (Reciprocal Enforcement) Act(Cap. 201), (Barbados). The Judgments and Awards (Reciprocal Enforcement) Act(Cap. 183), s. 2 (1), The Judgments (Foreign) (Reciprocal Enforcement) Act (Cap.184), (Jamaica). Commonwealth Countries (Enforcement) Act 1921 (Cap. 82),Foreign Judgments (Reciprocal Enforcement) Act 1958 (Cap. 87), St. Vincent andthe Grenadines). Judgments Extension Act, (Chap. 5:02), Overseas Judgments(Reciprocal Enforcement) Act, 1960 (Cap. 7), kept in force by the Amendment(Adaptation) Order 1962, (Trinidad and Tobago).

186. For instance in Guyana: The Foreign Judgments (Reciprocal Enforcement) Act (Cap.7:04), (Guyana) is intended to apply to all judgments given in courts outside Guyana.In this respect it seeks to abolish the distinction between ‘commonwealth’ and‘foreign’ judgments. See esp. sect. 9 (2).

187. Unreported. Supreme Court of The Bahamas. 1998 No. 1255; dated May 25, 1999.


188. See e.g., s.7, Foreign and Commonwealth Judgments (Reciprocal Enforcement) Act(Cap. 201), (Barbados), s. 2, The Judgments (Foreign) (Reciprocal Enforcement)Act (Cap. 184), (Jamaica), s. 2, Overseas Judgments (Reciprocal Enforcement) Act,1960 (Cap. 7), kept in force by the Amendment (Adaptation) Order 1962, (Trinidadand Tobago).

189. Section 11 (2) (b), Foreign and Commonwealth Judgments (Reciprocal Enforcement)Act (Cap. 201), (Barbados).

190. [1988] Fam 14; [1987] 3 All ER 188.

191. See e.g., s. 8 (3), Foreign and Commonwealth Judgments (Reciprocal Enforcement)Act (Cap. 201), (Barbados); s. 3 (3), The Judgments (Foreign) (ReciprocalEnforcement) Act (Cap. 184), (Jamaica); s. 3 (3) Overseas Judgments (ReciprocalEnforcement) Act, 1960 (Cap. 7), kept in force by the Amendment (Adaptation)Order 1962, (Trinidad and Tobago).

192. See e.g., s. 13, Foreign and Commonwealth Judgments (Reciprocal Enforcement)Act (Cap. 201), (Barbados); s. 8, The Judgments (Foreign) (Reciprocal Enforcement)Act (Cap. 184), (Jamaica); s. 38, Overseas Judgments (Reciprocal Enforcement) Act,1960 (Cap. 7), kept in force by the Amendment (Adaptation) Order 1962, (Trinidadand Tobago).

193. See e.g., s. 11 (2) (a), Foreign and Commonwealth Judgments (ReciprocalEnforcement) Act (Cap. 201), (Barbados), s. 6 (2), The Judgments (Foreign)(Reciprocal Enforcement) Act (Cap. 184), (Jamaica), s. 6 (2), Overseas Judgments(Reciprocal Enforcement) Act, 1960 (Cap. 7), kept in force by the Amendment(Adaptation) Order 1962, (Trinidad and Tobago).

194. See e.g., s. 11 (1) (a), Foreign and Commonwealth Judgments (ReciprocalEnforcement) Act (Cap. 201), (Barbados), s. 6 (1) (a), The Judgments (Foreign)(Reciprocal Enforcement) Act (Cap. 184), (Jamaica), s. 6 (1) (a), Overseas Judgments(Reciprocal Enforcement) Act, 1960 (Cap. 7), kept in force by the Amendment(Adaptation) Order 1962, (Trinidad and Tobago).

195. See e.g., s. 6 (1) (b), Foreign and Commonwealth Judgments (ReciprocalEnforcement) Act (Cap. 201), (Barbados), s. 6 (1) (b), The Judgments (Foreign)(Reciprocal Enforcement) Act (Cap. 184), (Jamaica), s. 6 (1) (b), Overseas Judgments(Reciprocal Enforcement) Act, 1960 (Cap. 7), kept in force by the Amendment(Adaptation) Order 1962, (Trinidad and Tobago).

196. See Seafarers International Union Plans v Franco, Unreported, High Court, VirginIslands, Suit No 32 of 1974, dated January 9, 1976; but contrast Showlag v Mansour[1995] 1 AC 432 (PC).

197. See generally, Cheshire & North’s Private International Law, (PM North and JJ Fawcett,13th edn., 1999), Chap 16.

198. Act 1997, No. 16 of 1997.


199. Agreement Establishing the Caribbean Court of Justice, done at St. Michael, Barbados,on February 14, 2001. Entered into force on July 23, 2002 when Guyana joined St.Lucia and Barbados in depositing its instrument of ratification.

200. Article XXVI (a).

201. Text in Winston Anderson, Caribbean Instruments on International Law, (StonePublications, 1994) at 411.

202. Antigua and Barbuda, The British Virgin Islands, Dominica, Montserrat, SaintChristopher-Nevis, Saint Lucia, and Saint Vincent and the Grenadines.

203. Published by The Caribbean Law Publishing Company, Kingston, 2001.

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