The recent judgment of Jersey's Royal Court in
Brunei Investment Agency and Bandone v Fidelis and
others  JRC 152 has significantly extended its
inherent jurisdiction to enforce foreign judgements in Jersey.
Proceedings were brought in Jersey by the Brunei Investment
Authority ("BIA") to enforce aspects of an order made by
the Bruneian Courts against Prince Jefri Bolkiah ("Prince
Jefri"), the youngest brother of the Sultan of Brunei.
The BIA originally commenced proceedings against Prince Jefri in
the Courts of Brunei in 2000. It alleged both misappropriation and
misapplication of several billion US dollars of state funds by
Prince Jefri whilst he occupied governmental office. However the
BIA and Prince Jefri reached a settlement prior to the matter being
heard before the courts in May 2000. Subsequently Prince Jefri
refused to comply with certain terms of the settlement and it was
necessary for the BIA to apply to the Bruneian Courts for
enforcement of the settlement agreement.
Prince Jefri was ordered by the High Court of Brunei in 2006 to
perform his obligations under the settlement agreement (the
"Bruneian Judgment"). He appealed the Bruneian Judgment
and the appeal was ultimately dismissed by the Privy Council
sitting as the appellate Court of Brunei. It was then necessary for
the BIA to engage in enforcement litigation across the globe
against various assets which he had acquired. As the settlement
agreement included obligations to transfer shares in certain Jersey
companies to the BIA, litigation in Jersey was necessary and it was
this aspect which formed the subject matter of the Jersey
Principles Of Comity
Whilst the precise terms of the BIA's application sought
recognition of the Bruneian Judgement pursuant to the principles of
comity, the court identified that the real issue before it was in
"whether the court should make the orders requested
with or without reconsidering the merits."
The court acknowledged that the Judgements (Reciprocal
Enforcement) (Jersey) Law 1960 was limited in application
to England and Wales, Scotland, Northern Ireland, the Isle of Man
and Guernsey. The court was therefore concerned with its inherent
jurisdiction to enforce foreign judgements.
The court noted that in the area of private international law,
regard would be given to the English common law position. Dicey,
Morris and Collins, The Conflict of Laws ("Dicey") is the
principle authority on this area. In particular Rule 35 (1)
provides that foreign judgements may be enforced if:
For a debt or definite sum of money; and
The judgment is final and conclusive.
The court observed that it was the first time in which the Royal
Court was expressly directing its attention to the effect of Rule
35 (1) of Dicey in Jersey, although it did note that the rule had
been mentioned though not directly commented upon in previous
decisions. The Royal Court therefore embarked upon a thorough
review of the Commonwealth authorities in this area, identifying
that the origin of Rule 35 (1) could be traced back to an English
case from Georgian times known as Sadler v Robins
(1808) 1 Camp. 253.
With regard to recent Canadian and Caymanian case law in this
area the court was mindful of the changes in society since the
rule's inception and the increasing globalisation of business
and commerce. As one would expect the world had changed in the last
200 years as therefore had the demands upon the legal systems to
respond to the developments in society. The court was conscious
that the increasingly globalised nature of business placed acute
importance upon certain equitable remedies available to the courts,
in particular freezing orders and mandatory injunctions, which
would often need to enjoy an international aspect to be wholly
effective. In this context the court believed that a re-assessment
of Rule 35 (1) of Dicey was necessary.
Adopting reasoning from recent case law in other Commonwealth
jurisdictions and in particular Canada, the Cayman Isles and the
Isle of Man (with the Privy Council sitting as appellate court
thereof) the Royal Court stated:
"In our view the restriction in relation to non-money
judgements under English common law (Rule 35 (1) Dicey) should, in
its application to this jurisdiction, be amended so as to give the
court a discretion... to enforce non-monetary judgements, but,...it
is a discretion to be exercised cautiously".
Importantly the court made it clear that this jurisdiction would
not be confined to being exercised in the context of Article 51 of
the Trusts (Jersey) Law 1984.
The judgement represents a significant and important development
extending the court's inherent jurisdiction to enforce foreign
non-monetary judgments in Jersey in appropriate circumstances and
it will be interesting to see if the UK and other Commonwealth
jurisdictions will adopt this departure from Dicey.
This article first appeared in the winter 2008/09 issue of
Appleby Jersey's Resolution newsletter.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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