Guernsey is an independent legal jurisdiction and judgments of other jurisdictions (including England and Wales) cannot automatically be enforced in the jurisdiction.
There are two routes for seeking recognition and enforcement of a foreign judgment by the Guernsey courts: the statutory route and the common law route.
Because the Island is not a part of the EU it is neither a signatory to the Lugano nor Brussels Conventions, which cover enforcement of judgments in civil and commercial matters.
The statutory route
The Judgments (Reciprocal Enforcement) (Guernsey) Law, 1957 (as amended) (the "Reciprocal Enforcement Law") is used when looking to enforce judgments from the following reciprocating countries:
- England and Wales – the Supreme Court and the Senior Courts of England and Wales, excluding the Crown Court;
- The Isle of Man – the High Court of Justice of the Isle of Man;
- Israel – the Supreme Court, the District Courts, Rabbinical Courts, Moslem Religious Courts, Christian Religious Courts and Druze Religious Courts;
- Jersey – the Royal Court of Jersey and the Court of Appeal of Jersey;
- The Kingdom of the Netherlands – the Hoge Raad der Nederlanden, the Gerechtshoven and the Arrondissementsrecht-banken;
- The Netherlands Antilles – the Hoge Raad der Nederlanden, the Hof van Justitie der Nederlandse Antillen and the Gerecht in Eerste Aanleg;
- Northern Ireland – the Court of Judicature of Northern Ireland;
- Republic of Italy – the Corte d'Apello and the Tribunale;
- Scotland – the Court of Session and the Sheriff Court; and
- Surinam – the Hof van Justitie van Suriname, the Kantongerecht in het Eerste Kanton and the Kantongerecht in het Derde Kanton.
The Reciprocal Enforcement Law stipulates that the foreign judgment should also meet the following criteria:
- the judgment must be final and conclusive between the parties;
- the judgment must be for a sum of money, but not taxes, fine or penalty;
- the judgment must not have been wholly satisfied at the time of the application;
- the foreign court had jurisdiction to give judgment; and
- the application to register the foreign judgment in Guernsey is made within six years of the date of the judgment from the original court.
In terms of jurisdiction, the Reciprocal Enforcement Law sets out criteria where the foreign court is deemed to have had jurisdiction depending upon the type of action in which the foreign court gave its judgment:
- for actions in personam, that the judgment debtor was a plaintiff or counterclaimed in the original proceedings; or, if a defendant, was resident in the country of the original court; or either voluntarily appeared or agreed to submit to the jurisdiction of the original court; or, in the case of a company, had a place of business there; and
- for actions in rem, that the property was situate in the country of the original court.
The application for registration is made ex parte to the Royal Court of Guernsey and notice of registration must then be served upon the judgment debtor – if the debtor is in Guernsey then personal service should be effected by HM Sergeant. If the judgment debtor is resident outside of the Bailiwick then it may be necessary to apply to the Court for substituted service.
It should be noted that, if the debtor is not British and not within 'any part of His Majesty's dominions', then the notice of registration must be served within the provisions of Rule 7(2) of the Judgments (Reciprocal Enforcement) (Amendment) (Guernsey) Rules, 1975, which involves a request for service abroad to the Bailiff, which is then transferred to His Excellency the Lieutenant-Governor of Guernsey and then on to His Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs and, finally, to the government of the country where service on the judgment debtor is to be effected.
The judgment debtor may apply to the Royal Court to set the registration aside (noting that any application to set aside the registration must be within 14 days of service of the registered judgment on the judgment debtor) if any of the following conditions apply:
- the judgment debtor did not receive sufficient notice of the proceedings in the original court;
- the original court did not have jurisdiction to rule on the foreign judgment;
- the foreign judgment was obtained by fraud; or
- enforcement in Guernsey would be contrary to public policy.
Upon registration, the foreign judgment shall be treated as if it were a judgment from the Royal Court of Guernsey for the purposes of enforcement.
Common law
If the Reciprocal Enforcement Law does not apply to the foreign judgment, the creditor can sue the debtor in the normal course for civil claims in Guernsey. It may be necessary for the proceedings to include an application for service out of the jurisdiction if the debtor is not resident in the Bailiwick.
The debtor may defend the proceedings on the same grounds prescribed in the Reciprocal Enforcement Law for setting aside registration.
Enforcement
Once a foreign judgment is registered under the Reciprocal Enforcement Law or successfully sued upon, then the judgment can be enforced in the normal way in Guernsey by HM Sheriff, a court appointed official who has the authority to arrest and sell a debtor's assets upon request and payment of the applicable fee.
Arrêts (literally 'arrest') and désastre proceedings can be pursued against a debtor's personal property. HM Sheriff can be instructed to investigate assets and a Commissioner of the Court calls a creditors' meeting to determine the amount of assets and the order of priority between the competing creditors; the costs of the proceedings are typically first, then secured debts, preferred debts (such as wages and tax), then unsecured debts.
Saisie is a customary law method of enforcement against real property. Once a creditor has decided to enforce against real property, they lose the right to enforce against moveable property, such as possessions or accounts, so careful consideration is necessary as to which route to take. Similar to désastre, a Commissioner of the Court is appointed to produce an account of all sums due to the creditor, including projected costs and interest up until proceedings have completed. The creditor would apply for an interim vesting order where the debtor's interest in the property comes to an end and title is vested in the creditor for the benefit of all claimants against the property. The final stage is for the creditor to apply to the Court for a final vesting order where the property is vested in them 'for an estate of inheritance', which is the Guernsey equivalent of a freehold title. (For more information on Saisie, please see our briefing here.)
Enforcement against a company is generally (for debts over £750) initiated by way of statutory demand, which is served by HM Sergeant at the company's registered office. If the demand remains unpaid for a period of 21 days, the company is deemed unable to pay its debts within the meaning of the Companies (Guernsey) Law, 2008 and so the creditor may apply to the Court to wind up the company and realise its assets.
Location: Guernsey
Related Services: Insurance & Reinsurance | Litigation & Dispute Resolution | Fraud & Asset Tracing
