"Recent developments in the common law indicate that non-money judgments can now be enforced in certain circumstances."
"In order to set aside a judgment, the judgment debtor must apply, within the relevant time period, to the Royal Court by way of summons supported by affidavit evidence."
"Where registration is not available, a foreign money judgment may be enforced by commencing fresh proceedings in Jersey."
"The conclusion of the Supreme Court was that avoidance judgments arising from insolvency proceedings did not have a special status and had to be enforced in the same way as other foreign judgments."

Enforcement of foreign judgments in Jersey

20 Jan 2017

This briefing explains how foreign judgments may be enforced in Jersey. Jersey has its own legal system and is a separate jurisdiction from that of England and Wales. Judgments obtained outside Jersey which provide for the payment of a sum of money may be enforced in Jersey by statutory registration or by action at common law. Recent developments in the common law indicate that non-money judgments can now be enforced in certain circumstances. Other types of foreign judgments may only be afforded recognition, which is dealt with later in this briefing.

Registration
The registration of foreign judgments is governed by the Judgments (Reciprocal Enforcement) (Jersey) Law 1960 (as amended) (the "1960 Law")[1]. The 1960 Law provides for the registration and enforcement in Jersey of judgments given in the superior courts of countries which accord reciprocal treatment to judgments given in Jersey[2]. Presently, the reciprocating countries and their superior courts are as follows:

  • England and Wales: UK Supreme Court; House of Lords; Court of Appeal; High Court of Justice.
  • Scotland: UK Supreme Court; Court of Session; Sheriff Court.
  • Northern Ireland: UK Supreme Court; Supreme Court of Judicature.
  • Isle of Man: Her Majesty's High Court of Justice (including the Staff of Government Division).
  • Guernsey: Royal Court; Court of Appeal.

Judgments that can be registered
Not all judgments given by such superior courts can be registered. The registration procedure set out in Part 2 of the 1960 Law applies only to judgments or orders given or made in civil proceedings, or in criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party. An English County Court judgment given in proceedings later transferred to the High Court for enforcement may now be registered in Jersey[3].

In addition, the judgment must:

  • be final and conclusive as between the parties; and
  • provide for the payment of a sum of money, but not in respect of taxes or similar charges, or a fine or other penalty[4].

A judgment can be "final and conclusive" even though an appeal in the foreign court is pending or possible, although any such appeal will be relevant to an application to set aside registration.

If a foreign judgment falls within Part 2 of the 1960 Law, the judgment creditor must use the registration procedure.  No other proceedings for the recovery of the sum payable, for example by action at common law, are permitted in Jersey.

Procedure for registration
The judgment creditor must apply to the Royal Court within six years of either the date of the judgment itself or, where the judgment has been appealed, the date of the last judgment in the appeal proceedings.[5]  The application, supported by affidavit evidence and exhibiting a certified copy of the foreign judgment, is made ex parte to the Judicial Greffier, an officer of the Royal Court who is similar to a Master in the English High Court.

A foreign judgment will not be registered if, at the date of the application, it has been wholly satisfied, or could not be enforced by execution in the foreign country itself. However, the Royal Court has the power to register the outstanding balance due under a partially satisfied foreign judgment, and to register a foreign judgment insofar as it provides for the payment of a money sum whilst ignoring any non-registrable elements (such as an order for specific performance). Any sum payable in a foreign currency will be converted to pounds sterling at the prevailing rate. The registered judgment will include any interest due under the law of the foreign country up to the time of registration, plus the reasonable costs of the registration process in Jersey.

Once registered, a written notice of registration must be served on the judgment debtor, who has a period of time (usually 14 or 28 days, subject to any extensions) within which to apply to set aside the registration. A registered judgment cannot be enforced until either that time period has expired or any application to set aside the registration has been disposed of, at which point it can be enforced in the same way as a judgment given in Jersey.

Setting aside
In order to set aside a judgment, the judgment debtor must apply, within the relevant time period, to the Royal Court by way of summons supported by affidavit evidence. The grounds for such an application include the following:

  • a failure to comply with the requirements for registration;
  • the foreign court lacked jurisdiction, as discussed in further detail below;
  • the judgment debtor did not (notwithstanding that he may have been duly served under the law of the foreign court) receive notice of the foreign proceedings in sufficient time to enable him to defend the proceedings and did not in fact appear; 
  • the foreign judgment was obtained by fraud; or
  • enforcement of the judgment would be contrary to public policy in Jersey.

Where the judgment debtor satisfies the Royal Court that an appeal of the foreign judgment is pending or possible, the Royal Court may adjourn the application to set aside for a reasonable period to allow any such appeal to be pursued or disposed of[6].

Jurisdiction of the foreign court
Whether the foreign court had jurisdiction is a complex issue to be determined by the Royal Court as a matter of Jersey law. The jurisdictional rules applied by the foreign court itself are generally irrelevant. In summary, the foreign court will be deemed to have had jurisdiction only:

  • In the case of a judgment given in an action in personam (which is deemed not to include proceedings regarding matrimonial matters, the administration of estates of deceased persons, bankruptcy, winding up of companies, lunacy, or guardianship of infants), if the judgment debtor agreed to submit or submitted to the jurisdiction of the foreign court (for example, by voluntarily appearing or agreeing to submit to the foreign court's jurisdiction in a contractual jurisdiction clause), he was the plaintiff or a counterclaimant, he was resident in (or if a body corporate had its principal place of business in) that foreign country, or he had an office or place of business in that country and the proceedings were in respect of a transaction effected through that office or place.
  • In the case of an action regarding immovable property or an action in rem regarding movable property, if the property was, at the time, situate in the foreign country. 
  • In any other case, if the jurisdiction of the original court is recognised by the law of Jersey.

Notwithstanding these general rules, there are certain circumstances where the foreign court will not be deemed to have had jurisdiction, for example, where the subject matter of the proceedings was immovable property outside the foreign country concerned.

Enforcement at common law
Where registration is not available, a foreign money judgment may be enforced by commencing fresh proceedings in Jersey. The right to enforce such a judgment arises as a matter of Jersey law, on the basis that the judgment of a foreign court of competent jurisdiction imposes an obligation on the judgment debtor to pay the judgment debt, and is therefore not dependent on principles of comity or reciprocity[7].

As the 1960 Law codified the existing common law position relating to enforcement, the present common law rules largely mirror those described above. In summary, to enforce a foreign judgment in personam at common law, the judgment must be final and conclusive, for a debt or definite sum of money (but not payable in respect of taxes or similar charges or a fine or other penalty), and given by a court of competent jurisdiction, but must not be impeachable on the grounds of fraud[8], or contrary to public policy, or natural justice.

In practice, the key question is usually whether or not the foreign court had jurisdiction. This is determined by the Royal Court according to Jersey law. As noted above in the context of registration, the jurisdictional rules applied by the foreign court itself are generally irrelevant.

The foreign court will be held to have jurisdiction over the judgment debtor if, for example, he was physically present and served with the foreign process within that court's territorial jurisdiction, he voluntarily appeared in the foreign proceedings to contest the action on it merits[9], he was the plaintiff or counterclaimed in those proceedings, or he agreed to submit to the foreign court's jurisdiction (for instance, in a contractual jurisdiction clause).[10]

It appears that there is no specific time limit in Jersey law for the enforcement of foreign judgments at common law; the judgment will however still need to be enforceable as a matter of the relevant foreign law.  In Jomair Leasing Limited v Hourigan [2011] JRC 042, the plaintiff enforced a US judgment at common law even though the proceedings were commenced in Jersey almost 8 years after the US judgment had been granted.

Where the above criteria are met, the defences available to a judgment debtor are limited, and the Jersey courts ought not to enquire into the merits of the original action, nor review the measure of damages awarded.

Non-money judgments
Non-money judgments fall outside the scope of the 1960 Law and, historically, have also not been enforceable at common law[11]. However, on 16 September 2008, the Royal Court handed down judgment in Brunei Investment Agency v Fidelis [2008] JRC 152. After a review of recent authorities before the Privy Council, the Supreme Court of Canada and the Grand Court of the Cayman Islands, the Royal Court decided that the common law should be changed. In the interests of comity and to reflect modern-day commercial practices, the common law was expressly amended so that the Royal Court now has a discretion to enforce non-money judgments, albeit this discretion should be exercised "cautiously". It is not yet clear how this cautious extension of the common law will be applied in practice.

Insolvency judgments
The UK Supreme Court in the conjoined cases of Rubin v Eurofinance and New Cap Reinsurance v Grant [2012] UKSC 46 considered the enforcement of foreign avoidance judgments given in insolvency proceedings (issued by the US and Australian courts respectively) against UK defendants. The conclusion of the Supreme Court was that avoidance judgments arising from insolvency proceedings did not have a special status and had to be enforced in the same way as other foreign judgments.

A majority (Lords Walker, Sumption and Collins) also held that the decision of the Privy Council (on appeal from the Isle of Man) in Cambridge Gas v Official Committee of Unsecured Creditors of Navigator Holdings plc [2006] UKPC 26 had been wrongly decided. In that case, Lord Hoffman, giving judgment for the Privy Council, stated that bankruptcy proceedings (and by implication, judgments arising from those proceedings) could not easily be classified as either judgments in rem or in personam. The Privy Council recognised and enforced a plan and order made by the US Bankruptcy Court under Chapter 11 of the US Bankruptcy Code even though the US courts had no jurisdiction over the defendant on usual principles.

The defendants in Rubin did not participate in the US and did not submit to the jurisdiction of the US Courts. The US avoidance judgments were therefore unenforceable. However, whilst the defendants in New Cap did not participate in the avoidance proceedings, they did submit proofs of debt (which claims were admitted) and attended and participated in creditors' meetings. The Supreme Court found that the defendants in New Cap should be taken to have submitted to the Australian court's jurisdiction, and should not be allowed to benefit from the insolvency proceeding without the burden of complying with the orders made in that proceeding.

Neither Cambridge Gas nor Rubin is binding in Jersey, nor has the point come before the Royal Court of Jersey for determination. The position under Jersey law is therefore uncertain. The cautious approach is to assume that the judgment creditor will need to show that the foreign court had jurisdiction over the foreign judgment debtor in the usual way.

Recognition
Enforcement and recognition are different concepts. Foreign judgments which cannot be registered or enforced at common law may nevertheless be recognised by the Jersey courts as conclusive between the parties in all proceedings founded on the same cause of action, and may be relied upon by way of defence or counterclaim in any such proceedings. There is no restriction on the type of judgment which can be recognised[12].

Special cases
The whole of any foreign judgment providing for multiple damages, including the compensatory element, is unenforceable in Jersey, whether by registration or by action at common law, by virtue of Section 5 of the Protection of Trading Interests Act 1980 (Jersey) Order 1983.

A separate regime applies to the registration and enforcement of maintenance orders pursuant to the Maintenance Orders (Facilities for Enforcement) (Jersey) Law 2000. Divorces and legal separations may be recognised under the Recognition of Divorces and Legal Separations (Jersey) Law 1973.

The enforcement or recognition of a foreign judgment with respect to a Jersey trust will be subject to Article 9 of the Trusts (Jersey) Law 1984 (as amended), which in simple terms provides that no such judgment shall be enforceable to the extent that the foreign court has failed to apply Jersey law. This is explored further in our briefing on the Trusts (Amendment No.5) (Jersey) Law 2012.  Notwithstanding these changes, the Royal Court has shown it is still prepared to give the trustee directions which may achieve the objectives of the order if it is in the interests of the beneficiaries to do so.[13]

 

[1] As supplemented by the Judgments (Reciprocal Enforcement) (Jersey) Rules 1961 and the Judgments (Reciprocal Enforcement) (Jersey) Act 1973, both as amended.
[2] For example, judgments of the Royal Court and the Court of Appeal of Jersey are registrable under Part I of the United Kingdom's Foreign Judgments (Reciprocal Enforcement) Act 1933 pursuant to SI 1973/612.
[3] Representation of Fallows (trading as Marbeck Associates) [2014] JRC 001, over-ruling in re Hardwick 1995 JLR 245. English County Court judgments may also be enforced at common law - Ball v King [2006] JRC 171.
[4] Article 3(2) of the 1960 Law. There is a further requirement that the foreign judgment is given after the Jersey Act extending the 1960 Law to that foreign country but, as the last such Act was passed in 1973, this should not present a problem in practice.
[5] Article 4(1) of the 1960 Law. This can be contrasted to the usual 10 year prescription period for the enforcement of domestic Jersey judgments pursuant to Article 7 of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1967.

[6] Article 7(1), and ED& F Man (Sugar) Ltd v Haryanto 1990 JLR 169.
[7] Showlag v. Mansour 1994 JLR 113 at 118 (Privy Council) and Elder v Stock [2009] JRC 034. See also Dalemont v Senatorov [2013] JRC 207 at para 9. Whilst Article 10 of the 1960 Law grants the States of Jersey the power to bar the enforcement of judgments from countries which do not reciprocate (i.e. which give Jersey judgments substantially less favourable treatment than Jersey affords its judgments), to date no Act has been made under this Article.
[8] Even alleged fraud may be insufficient if the debtor has a remedy in the foreign court: Dalemont v Senatorov [2013] JRC 207 at para 26.
[9] The judgment debtor is unlikely to be held to have voluntarily appeared in the foreign proceedings if he appears solely to contest the foreign court's jurisdiction or, perhaps, if he has assets within the foreign court's jurisdiction and his appearance was solely to preserve assets which have been seized by that court.
[10] Usually such a submission will be express. It is possible, though not easy, to show the debtor agreed or consented to the foreign court's jurisdiction by implication or inference - see Vizcaya Partners Limited v Picard & Another [2016] UKPC 5 (Privy Council on appeal from Gibraltar).
[11] Although in Lane v Lane 1985-86 JLR 48 the Royal Court gave effect to a declaratory judgment of the English High Court in the interests of comity under its equitable jurisdiction without reference to the common law. Similar principles have been applied in cases involving Jersey trusts.
[12] See Representation of Schroder Cayman Bank and Trust Company Ltd [2015] JRC 125 at paras 25 to 29.

[13] Re the R Trust [2015] JRC 267A