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Recognition And Enforcement Of Foreign Judgments Cases

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RECOGNITION AND ENFORCEMENT OF JUDGMENTS Recognition/Enforcement at Common Law Recognition The Indian Grace [1993]
Case involved a bill of lading where cargo was carried in a ship owned by D. Was fire on board ship and C's cargo was damaged. C sued D in India in personam for short delivery; C then sued D again in England in rem in respect of D's vessel on which the cargo was transported. Held:

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See notes Actions have same parties o For purposes of s.34, English proceedings brought in personam against shipowner involve same parties as proceedings in which C sues D in rem Actions have same cause of action o i.e. C is relying on breach of contract in both

Desert Sun Loan Corp v Hill [1996]
US bank, C, obtained judgment against a firm of partners. At time of judgment, D, one of partners, lived in England. However partnership's solicitors in US had accepted service of US proceedings on behalf of D, on basis that D had authorised another partner to instruct solicitors. Held:

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Findings of fact made in US case show that, according to English conflict of laws rules, D submitted to US proceedings. Thus D estopped from denying he submitted to US proceedings. However on facts, judgment could not be enforced.

Enforceable Judgments For a Fixed Debt of Sum of Money United States of America v Inkley [1989]
D had been issued with summons in American civil proceedings. Court in America had granted D bail in return for an appearance bond, designed to encourage D to attend proceedings. When D failed to appear, USA sought to enforce judgment for payment of appearance bond in UK. Held:

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Judgment was a penalty.
? Thus enforcement action was for execution of foreign penal process. Therefore USA judgment is unenforceable.

Huntington v Attrill [1893] (PC) A New York statute prescribed penalties for those found to have made false representations. C sued D for false representation in NY, won, and sought to enforce award of damages made in Canada. Held by Privy Council:

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Mere fact that a state-sanctioned penalty attaches to a breach of a law by D does not make any action to recover that penalty by C 'penal'. Thus penal actions for the purposes of enforcement DO NOT include those in which a penalty is sought to be recovered by a private person. o even if this penalty is prescribed by statute. Rather they are only those which have as their object the enforcement of punishment by or on behalf of the State itself.

SA Consortium General Textiles v Sun and Sand Agencies [1978]
C obtained punitive damages against D in French proceedings. Sought to enforce judgment in UK. D claimed that i) punitive damages were not enforceable; and ii) the failure of the French court to recite the steps taken to bring summons to D's knowledge, a procedural error of French law, meant the judgment was invalid and unenforceable. Held: 1) Punitive damages are enforceable.
? Even though they are imposed by court to punish D, are in fact compensatory
? Lord Denning: Punitive damages are also not contrary to public policy
- Are many countries around world in which punitive damages are deemed enforceable. 2) Foreign judgments which are merely voidable under foreign law are enforceable
? And on facts, judgment was at the most voidable European Bank v Robb Evans [2004] (Australian Case) D was alleged to have committed mass credit card fraud in US. Federal Trade Commission, a public body in US, used its public law powers to bring case against D in US with view to recovering money D had illegally obtained. C then sought to enforce this judgment in Australia. Held:

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On facts, because the power was used with view to reimbursing private parties is not a 'penal' judgment.
? i.e. power was used for a compensatory purpose, and not for benefit of the State.

Competent Jurisdiction Adams v Cape Industries [1990]

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