Enforcement of Foreign Civil & Commercial Judgments (L6/7) Flashcards
What is ‘recognition’?
“Treating the relevant claim as having been determined once and for all by the foreign court” (Clarke v Fennoscadia 2008 SC (HL) 122, per Lord Rodger at [21]).
What are the different types of decrees (in what they do)?
Money judgments.
- Decrees for debt or damages.
Declarators of fact/non-monetary judgments.
- Interdicts/injunctions (preventative decrees).
- Decrees for specific implement (decrees ad factum praestandum).
What are the different types of decrees (in who they affect)?
Decrees in personam —- Affect only the parties thereto.
Decrees in rem —- Operate ergo omnes (against the world) in particular respects (property and personal status).
- Deutsche Bank AG (London Branch) v Central Bank of Venezuela [2022] EWHC 2040 (Comm).
What are the natural justice principles supporting judgment enforcement?
Finality of judgment (‘solemnity of judgments’).
- ‘A litigant should not be twice vexed on the same matter’.
No review of substance.
Review of jurisdictional competence.
What are the potential schemes for judgment enforcement?
Enforcement at common law.
Action for decree conform.
Enforcement via the UK statutory schemes.
‘Extension’ of judgments by registration under one of two Acts:
- Administration of Justice Act 1920.
- Foreign Judgments (Reciprocal Enforcement) Act 1933.
Intra-UK enforcement: Civil Jurisdiction and Judgments Act 1982, Schedules 6 & 7.
Enforcement under Hague Convention.
What is the ‘checklist’ for foreign judgments?
- What is the court of origin?
- Is the decree final and conclusive, and for a sum certain in money?
- Did the court of origin have “international jurisdiction” over the judgment debtor?
- Can the judgment debtor establish a defence to enforcement?
What is decree conform under the common law?
Action for ‘decree conform’ to the foreign decree.
Applies if the decree emanates from a legal system other than one covered by either the 1920 or 1933 Acts (or Brussels Ibis).
Judgment creditor petitions the Court of Session under the ‘nobile officium’ (action on the judgment in the High Court for E&W).
Very time consuming and expensive….
What is the judgment enforcement method under the Administration of Justice Act 1920 s9?
May apply to Court of Session within 12 months of decree (or longer) to have decree registered: s9(1) (e.g. Tenaga v Fraser-Nash Research [2018] EWHC 2970 (QB)).
No ‘judgment laundering’ permissible: Strategic Technologies v China Ministry of National Defence [2021] QB 999.
Judgment registered at discretion of Court of Session: s9(1).
Not mandatory, but cannot claim expenses if decree conform route used to enforce judgment registrable under 1920 Act s9(5).
What is the method of judgment enforcement under the Foreign Judgments (Reciprocal Enforcement) Act 1933 s2?
May apply to Court of Session within 6 years of date of judgment: s2(1).
Judgment registered as of right, but may be set aside if successfully challenged by judgment debtor under s4: s2(1).
Mandatory system: s6.
Common law – Requirement for the judgment to be ‘final and conclusive’?
Must be ”final and unalterable in the court which pronounced it”.
- Nouvion v Freeman (1889) 15 App Cas 1.
1933 Act – Requirement for the judgment to be ‘final and conclusive’?
S1(2)(a); stay of enforcement may be granted if judgment appealed in state of origin (s5(1); Walton v Shanley [2012] CSIH 53).
1920 Act – Requirement for the judgment to be ‘final and conclusive’?
Extends only to judgments of ‘superior’ courts; enforcement precluded if appealed in state of origin (s9(2)(f)).
Only asking whether the court which granted the judgment could go back and change it.
Common law – Requirement for a sum certain in money?
Sadler v Robins (1808) 1 Camp 25.
1933 Act – Requirement for a sum certain in money?
S1(2)(b).
1920 Act – Requirement for a sum certain in money?
S12(1); definition of ‘judgment’.
Common law – Requirement for international jurisdiction?
Rubin v Eurofinance SA [2013] 1 AC 236.
1933 Act — Requirement for international jurisdiction?
S4(1)(a)(ii);
S4(2)(a).
1920 Act — Requirement for international jurisdiction?
S9(2)(b).
What are the 2 acceptable bases for international jurisdiction?
Residence/Presence: Judgment debtor must be resident/present within the jurisdiction of court of origin when proceedings initiated.
Submission: Judgment debtor must either (i) voluntarily appear in foreign proceedings without contesting jurisdiction, or (ii) have agreed contractually that the courts of that place had jurisdiction.
How does the case of GFH Capital v Haigh [2020] EWHC 1269 (Comm) demonstrate presence/residence?
Involuntary presence…
Still a base for jurisdiction?
How does the case of Zigal v Buchanan [2018] CSOH 94; [2019] CSIH 16 demonstrate presence/residence?
Evidence required to prove presence and residence of an individual?
CCTV footage shows them there.
Showed bill from them living in Glasgow. Court did not accept that this meant they weren’t in Hong Kong.
How does the case of Adams v Cape Industries [1990] Ch 433 demonstrate presence/residence?
“So long as he remains physically present in that country, he has the benefit of its laws, and must take the rough with the smooth, by accepting his amenability to the process of its courts.” (519B-C per Slade LJ).
Cape’s argument, they are an English company, involved employees work for their Texan subsidiary. Court accepted this.
How does the case of Rubin v Eurofinance SA [2013] 1 AC 236 demonstrate submission to the court?
“The party alleged to have submitted to the jurisdiction of the [foreign] court must have… taken some step which is only necessary or only useful if… an objection to jurisdiction… has been actually waived, or if the objection has never been entertained at all…” ([159], per Lord Collins).
Submission of creditor’s claim in insolvency proceedings = submission to jurisdiction of supervising court for transaction avoidance action pursued against creditor ([167], per Lord Collins).
How does the case of GFH Capital v Haigh [2020] EWHC 1269 (Comm) demonstrate submission?
They had submitted because they had taken a substantive step (a counter-claim), and had not argued against jurisdiction.
What does Pemberton v Hughes [1899] 1 Ch. 781 tell us about defences to judgment enforcement?
“If a judgment is pronounced by a foreign court over persons within its jurisdiction and in a matter with which it is competent to deal, English courts never investigate the propriety of the proceedings of the foreign court unless they offend against English views of substantial justice.” (Baron Lindley MR, 790).
What are the possible defences to judgment enforcement?
Fraud.
Breach of natural justice.
Public policy.
Dispute resolution clause.
Res judicita.
What is the legal basis for the defence of fraud?
Common law.
1920 Act s9(2)(d).
1933 Act s4(1)(a)(iv).
