Recognition And Enforcement Of Foreign Judgments Cases

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:

• See notes

• Actions have same parties

  • 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

  • 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:

• 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:

• 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:

• 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.

  • 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:

• 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]

Cape (D), an English registered company dealing in asbestos, operated in America via a subsidiary company incorporated into America. C, group of people allegedly injured by asbestos installed into a factory, obtained judgments against D in America. Question was whether these D was ‘present’ in US. Held:

• See notes.

Submission

Adams v Cape Industries [1990]

Facts from above. D voluntarily submitted to earlier proceedings brought by those allegedly injured by asbestos (the Tyler 1 actions), but did not submit to later proceedings brought by additional workers (the Tyler 2 actions). C argued that submission to the earlier proceedings meant D had impliedly submitted to the second proceedings. Held:

• See notes.

Marc Rich v Societa Italiana [1992]

C brought proceedings against D in Italy. D’s contested jurisdiction of Italian court; however D subsequently, and of his own accord, filed statement of claim containing argument that Italian court should reject relief sought by C – but form stated that this defence was ‘without prejudice’ to contesting of jurisdiction. Held:

• Provided D makes it clear his first and primary defence that he is contesting jurisdiction of court, is not a submission even if there is some additional material constituting a plea on merits

• First defence put forward by D was obviously not a submission.

• However second defence was a submission

  • i.e. was invitation to Italian court to decide on facts of case

Defences

Substantive Justice

Adams v Cape Industries [1990]

Facts from above. After D (Cape) decided not to participate in the Tyler 2 proceedings, Texas proceedings carried on regardless. There were then multiple failures of justice:

1. Was no jury assessment of damages, despite this having been promised;

2. In a departure from normal rules, judge awarded damages without any reference to the individual injury of each plaintiff, but simply by directing that the average award for each plaintiff should be $75,000;

3. The total amount of damages was distributed between plaintiffs by their own counsel on the basis of how severe their injuries were.

Held:

• Was a breach of substantial justice.

• Substantial justice requires that ...

Buy the full version of these notes or essay plans and more in our Conflict of Laws Notes.