Enforcements of Judgments in Guernsey

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As a consequence of Guernsey’s legal system and separate jurisdiction, judgments obtained elsewhere are not enforceable in Guernsey as of right. Only judgments of the Royal Court of Guernsey are enforceable without any further process required, and all other judgments (referred to as “foreign judgments”) must be enforced in the manner described in this insight article, essentially by being registered at the Royal Court and thereafter being enforced in the same manner as any judgment of the Royal Court.

It is not uncommon for a judgment debtor who has had judgment taken against them outside Guernsey (a foreign judgment from a Guernsey point of view) to be resident in Guernsey or to have assets in Guernsey, and in both of these circumstances it becomes necessary to enforce the foreign judgment in Guernsey, either to force the Guernsey resident debtor to pay the judgment debt, or to execute the judgment against Guernsey situs assets (whether in the form of movables such as money in a bank account or immovable assets such as fixed property In Guernsey).

Enforcement under the statutory method – The Judgments (Reciprocal Enforcement) (Guernsey) Law, 1957

In Guernsey, there are two ways in which to enforce foreign judgments. The first is enforcement pursuant to The Judgments (Reciprocal Enforcement) (Guernsey) Law, 1957 (“the 1957 Law”) and secondly under the common law. In order to make an election as to which route to follow, it is first necessary to consider the 1957 Law as it will take precedence if it applies to the judgment which you are seeking to enforce. In other words, if a foreign judgment falls within the scope of the 1957 Law, then it is obligatory to proceed using this statutory method (and the common law may not be relied upon).

Judgment must be from an appropriate level of court in a qualifying jurisdiction

Closer inspection of the 1957 Law reveals that it currently only applies to judgments from a limited group of countries, and certain (generally higher) courts within them. Presently, the reciprocating countries and courts are as follows:

Countries – Court

England and Wales  – House of Lords; Court of Appeal; High Court of Justice.

Scotland – Court of Session, Sheriff Court.

Northern Ireland – Supreme Court of Judicature.

Isle of Man – 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.

The Netherlands – The Hoge Raad der Nederlanden, the Gerechtshoven and Arrondissement-srechtbanken.

Netherlands Antilles –  The Hoge Raad der Nederladen, the Hof van Justitie der  Nederlandse Antillen and the Gerecht in Eerste Aanleg

Republic of Italy – The Corte d’Apello and the Tribunale

Surinam – the Hof Van Justitie van Suriname, the Kantongerecht in het Eerste Kanton and the Kantongerecht in het Derde Kanton

Jersey – Court of Appeal; Royal Court.

It should be noted that a judgment given in the first instance in an English County Court and subsequently transferred to the High Court of Justice of England and Wales was deemed to be registrable in Guernsey under the 1957 Law (see Manches LLP v Inter Global Financial Limited [2009]).

The judgment falling within the above list of countries and relevant courts is a necessary condition for enforcement under the 1957 Law, but is not sufficient, as the requirements below must also be met.

The judgment must be of a certain nature in order to be enforceable in Guernsey

If the judgment has been obtained from any of these countries and their superior courts listed above, it is then necessary to determine what sort of judgment has been granted as not all judgments are enforceable under the 1957 Law notwithstanding that it is a judgment obtained from a reciprocating country.

A judgment under the 1957 Law may be registered if:

1) it is the judgment of a Superior Court of a reciprocating country;
2) the judgment is final and conclusive and it matters not if an appeal is pending or possible;
3) a sum of money is payable under the judgment, not being a sum payable in respect of taxes, fines or other penalties;
4) the Courts of the country of the foreign court are deemed to have had jurisdiction to grant the judgment.

The Court granting the foreign judgment must be deemed to have jurisdiction to have done so: actions in personam and in rem

The first three of the four requirements set out above are relatively straightforward to assess in any given case.  The issue of the jurisdiction of the foreign court is somewhat more complex.  When will a foreign court be deemed to have had jurisdiction in the case of a judgment given in an action which is against a specific person (judgment in personam)?  A foreign court is deemed to have had jurisdiction if any of the following conditions are met:

a) the debtor took part in the proceedings of the foreign court of his own free will, but not so as to protect his property;
b) the debtor lost the case;
c) the debtor as the defendant had agreed to come before that foreign court;
d) the debtor was resident within the country of the foreign court, or if a company had its principal place of business there; or
e) the debtor had an office or place of business in the country of the foreign court and the proceedings concerned a transaction which was effected through that office or place.

A judgment in personam for the purposes of the 1957 law is deemed not to include any matrimonial cause or any proceedings connected with matrimonial matters, administration of the estates of the deceased persons, insolvency, winding up of companies, lunacy or guardianship of infants.

When will a foreign court be deemed to have had jurisdiction in the case of a judgment in rem?  A judgment in rem is defined as an action which vests in a person the possession of a property or a thing, or decrees the sale of a thing in satisfaction of a claim against the thing itself, or a judgment as to the status of a person.  A foreign judgment in rem relating to movables will be recognised and enforced in Guernsey if the movables were situated in the foreign country at the time of the proceedings.  A foreign judgment in rem relating to  immovables will be recognised in Guernsey if the immovables are situated in the foreign country.

Application for registration of the foreign judgment before the Royal Court of Guernsey

Once it has been established that a foreign judgment can be enforced pursuant to the 1957 law, a judgment creditor may apply to the Royal Court within 6 years of the date of the judgment for it to be registered in the Royal Court.  The judgment may not be registered if it has either been satisfied wholly or could not be enforced in the jurisdiction of the original court.  Once registered, the judgment has the same force and effect as a judgment given by the Royal Court.

The debtor has 14 days from the date of the service of registration to apply to have the registration set aside. This period may be extended in certain circumstances. The registration may be set aside by the Royal Court on any of the following grounds:

1. The judgment does not come within the 1957 Law or contravenes it;
2. The foreign court does not have jurisdiction to order judgment against the debtor;
3. Notice of the registration upon the debtor was not served correctly, so that the debtor did not receive notice of the proceedings in enough time for him to prepare a defence;
4. The judgment was obtained by fraud;
5. The enforcement of the judgment is contrary to public policy in Guernsey; or
6. The applicant has no locus standi to apply to register the judgment.

Common law enforcement of a foreign judgment in Guernsey

If the 1957 Law does not apply then the enforcement of a foreign judgment would take place under the common law.  This means that the judgment creditor would sue on the foreign judgment itself and apply for summary judgment if the case is defended.

If a foreign judgment is sued upon it is impeachable on the following grounds only:

a) the foreign court did not have jurisdiction to give the judgment; or
b) for fraud on the part of the party whose favour the judgment was given; or
c) for fraud on the part of the Court pronouncing the judgment; or
d) where enforcement would be contrary to public policy; or
e) where the proceedings in which the judgment was obtained were contrary to natural justice.

Further considerations – enforcement affected by sanctions 

It is always important to consider whether a judgment in personam is against or involves a designated person in terms of Guernsey’s sanctions regime.  Further, in the case of a judgment in rem, if any of the assets are owned, held or controlled (whether directly or indirectly) by a designated person or a company owned by such a person, the enforcement of the judgment in question may require a licence to be issued by the Policy and Resources Committee in Guernsey in order to be lawful under Guernsey’s strict sanctions regime.   Assets connected to designated persons may not be dealt with in any way (and are usually referred to as being “frozen” for this reason), and this would tend to preclude enforcement of judgments involving or impacting upon any frozen assets without a licence being granted to allow this.

ABT Advocates has substantial experience in registering and enforcing foreign judgments in Guernsey.  Should you require any advice on any aspect relating to sanctions in Guernsey, please contact Advocates Clare Tee, Jeremy Le Tissier or Senior Associate Nick Taitz.