INTERNATIONAL LAW: CONFLICT OF LAWS: FAMILY LAW PART-2

Public policy also includes cases which would breach the Human Rights Act 1998 and the European Convention on Human Rights. This is clear where a foreign court is also a party to the Convention. In Pellegrini v Italy (30882/96) (2002) 35 E.H.R.R. 2, the ECHR decided that Italy could not recognise a judgment from the Vatican City where recognition itself would violate the Convention, despite the recognition being required by prior treaty between Italy and the Vatican. The House of Lords held in United States v Montgomery (No.2) [2004] UKHL 37; [2004] 1 W.L.R. 2241 that enforcement of a US judgment could only be refused under the European Convention where the defects in the foreign proceedings were "flagrant". The English court can also decide under this head whether the foreign court was to be regarded as lacking in independence and partial (and will not substitute the view of a foreign court of a third country which had previously refused recognition of the judgments): Yukos Capital Sarl v OJSC Rosneft Oil Co [2012] EWCA Civ 855; [2014] Q.B. 458.

Natural justice: A foreign judgment will be refused enforcement where the proceedings offend the English view of substantial or natural justice:Pemberton v Hughes [1899] 1 Ch. 781, at 790 per Lord Lindley. Natural justice traditionally required the foreign court to have given notice to the litigant that it would determine the claim and allowed the litigant the opportunity substantially to present his case before the court: Jacobson v Frachon (1927) 138 LT 386, CA, at 392 per Atkin LJ. In Adams v Cape Industries, the Court of Appeal held that natural justice was broader than just notice and the opportunity to be heard. In that case, a denial of substantial justice was found in the failure by the foreign court, in the United States, to follow its own procedure for the assessment of damages after a default judgment (in US law, as English, damages were assessed by a judge after a hearing, but here the judge had not held any hearing or objectively assessed the evidence). A mere procedural irregularity which does not deny substantial justice will not suffice.

The existence of a remedy in the foreign court may be relevant. The foreign court's view of the fairness of the proceedings is not conclusive: Jet Holdings Inc v Patel at 345 per Staughton LJ (obiter). In Adams v Cape Industries, the Court held that the where the breach of natural justice consisted of lack of notice or lack of opportunity to be heard, the judgment debtor may raise an objection in England even if there were a remedy in the foreign court. But where the breach consists of anything else, the existence of a remedy is relevant (although this will depend on whether the debtor knew of the breach in time to use the foreign remedy).

Recognition: If the criteria above are satisfied, the judgment is conclusive as to law and fact on any matter decided by the foreign court, and cannot be questioned in England. As well as being enforced, it can also be recognised as a good defence to any claim on the same facts between the same parties or their privies on the ground that it creates an issue estoppel: Carl Zeiss Stiftung v Rayner & Keeler Ltd [1967] 1 A.C. 853.

THE 1920 ACT

Introduction: Part II of the 1920 Act creates a scheme for the enforcement of judgments from the majority of Commonwealth countries, codified in Reciprocal Enforcement of Judgments (Administration of Justice Act 1920, Part II) (Consolidation) Order 1984/129.

Criteria for enforcement: Section 9(1) of the Act provides that a judgment creditor who has obtained in a superior court of a country covered by the Act may apply to the High Court to register the judgment within 12 months of the date of the judgment (or longer if an extension is granted). On such an application, the Court may order the judgment to be registered, if it is just and convenient to do so. The judgments to which the Act applies are the same as those enforceable at common law: judgments for a debt or definite sum. Although it does not say so specifically, the Act is likely to exclude judgments for fines or penalties, as at common law. A judgment registered under the Act has the same effect and its execution is subject to the same control of the Court as if it were an English judgment: s.9(3).

Defences to enforcement: Section 9(2) provides that no judgment shall be registered if certain criteria apply, which are largely the same as the defences to enforcement at common law, except for the following three points. First, there is no specific defence of breach of natural justice, but s.9(2)(c) provides that the judgment shall not be registered if the debtor was a defendant in the foreign proceedings, who was not duly served with process and did not appear in the foreign court. Secondly, a judgment cannot be registered under the Act if an appeal against it is pending against it in the foreign court, or if the debtor is entitled to and intends to appeal: s.9(2)(e). Thirdly, the public policy defence prevents registration of a judgment where the underlying cause of action could not be entertained in England for public policy (s.9(2)(f)), whereas at common law the defence is that enforcement of the judgment would be contrary to public policy.

Recognition: Recognition of foreign judgments is not covered by the 1920 Act and are thus covered by the common law principles above.

THE 1933 ACT

Scope: Part I of the 1933 Act applies to most Commonwealth countries not covered by the 1920 Act, including Australia (federal and state courts), Canada (federal courts and provincial courts except Quebec), India, Pakistan, the Channel Islands and the Isle of Man. It applies to certain other states and formerly applied to most Western European states, although between those states it is now superseded by the Brussels Regulation discussed below.

Criteria for enforcement: Under s.2(1) a judgment creditor may apply to the High Court within six years of the date of the judgment (or of any appeal) for the judgment to be registered in England. The Court must order the registration of the judgment, subject to proof of the matters prescribed by the Act. This does not apply to judgments which have been wholly satisfied or could not be enforced by execution in the foreign country. The Act covers judgments or orders made in civil proceedings and those in criminal proceedings for the payment of a sum of money as compensation or damages to the injured party: s.11(1). Unlike the position at common law, this covers both final and conclusive judgments, and also judgments for interim payments: s.1(2)(a). A registered foreign judgment has the same effect as an English judgment: s.2(2).

Section 4(2) provides the grounds on which the foreign court has jurisdiction, which are very close to those at common law except for three matters. First, presence in the country at the time of the proceedings is not sufficient to found jurisdiction under the Act. Secondly, there is only jurisdiction founded on the presence of a company's office in the foreign state where the cause of action against a company arises out of a transaction carried out by that office (unlike at common law where it does not matter if the transaction relates to that office). Thirdly, the Act allows for jurisdiction over an individual with a place of business in that country.

Defences to enforcement: Section 4(1) provides for the grounds on which registration of the judgment must be set aside which are the same as the defences at common law.

Recognition: Section 8 provides that judgments to which the Act applies (whether or not they are registered or are capable of registration) will be recognised as conclusive between the same parties founded on the same action, and can be relied on as a defence or counterclaim. However, this does not apply where the registration of the judgment was been or could be set aside on the compulsory grounds (such as lack of jurisdiction, fraud, lack of notice or public policy). The House of Lords decided in Black Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] A.C. 591 that these provisions were intended to cover recognition of foreign judgments dismissing a claim, so long as the dismissal was on the merits and not on a procedural ground.