This article first appeared in The ICLG to: Enforcement of Foreign Judgments, Laws and Regulations, which covers common issues in enforcement of foreign judgments, laws and regulations through the detailing of the general enforcement regime, enforcement regime applicable to judgments from certain countries, and methods of enforcement in 25 jurisdictions.
1. Country finder
1.1 Please set out the various regimes applicable to recognising and enforcing judgments in your jurisdiction and the names of the countries to which such special regimes apply.
|Applicable law/statutory regime||Relevant jurisdiction(s)||Corresponding section below|
|Bermuda Common Law and the Judgments (Reciprocal Enforcement) Act 1958 (the 1958 Act)||Bermuda||Sections 2 and 3|
2. General regime
2.1 Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction?
Where the 1958 Act does not apply, Bermuda applies standard common law principles to the recognition of foreign judgments.
2.2 What constitutes a 'judgment' capable of recognition and enforcement in your jurisdiction?
"Judgment" is defined for the purposes of the 1958 Act as "a judgment or order given or made by a court in any civil proceedings, or a judgment or order given or made by a court in any criminal proceedings for the payment of money in respect of compensation of damages to an injured party; and it also includes an award in proceedings on an arbitration if the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a court in that place".
Bermuda common law generally applies this as its definition of "Judgment".
2.3 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction?
A judgment given by a foreign court of competent jurisdiction (in a Bermudian/English private international law sense, i.e. the defendant was present in the foreign country when the proceedings were issued or submitted to that jurisdiction by agreement or action) may be enforced in Bermuda by an action for the amount due under it if the judgment is final and conclusive on the merits between the same parties, for a definite sum of money (provided that sum does not constitute tax, a fine or a penalty), was not obtained by fraud or contrary to the principles of natural justice, and enforcement would not be contrary to public policy.
The Bermuda Supreme Court will consider a judgment to be final and conclusive provided that it is not capable of being varied by the court that made it.
For recognition of particular foreign judgment's findings, and as to their ability to bind parties in proceedings in Bermuda, as above, the foreign court must be of competent jurisdiction and its decision must be final and conclusive on the merits between the same parties, the issue raised must be identical to the particular issue in the Bermuda proceedings, and the decision on the issue must have been necessary for the foreign judgment, not merely collateral. Under both the 1958 Act and common law, a judgment is deemed to be final and conclusive even if an appeal is pending against it or if it may become the subject of an appeal.
If the foreign judgment orders the judgment debtor to do anything other than pay the judgment creditor a sum of money, such as performing a contract, it will be unenforceable, although it can nonetheless be recognised as providing for res judicata at common law, thereby creating a cause of action estoppel. Accordingly, a party to foreign proceedings will be prevented from denying any matter of fact or law decided in the foreign proceedings where it is shown that the foreign court was competent to act, the judgment is final and conclusive and was made on the merits. For the estoppel to operate, the parties to the proceeding in Bermuda must be the same as the parties to the foreign litigation, and matters in dispute must also be identical.
Unlike other commonwealth jurisdictions, there are no specific statutory provisions or common law rules in Bermuda enabling the enforcement of interim or permanent injunctions.
2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment?
The Bermuda Court accepts jurisdiction in respect of enforcement of foreign judgments generally, but Bermuda property will be necessary for effective enforcement.
2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively?
In principle, recognition is a precursor to enforcement, but not all recognised judgments are strictly speaking enforceable or appropriate to enforce. It has been said in the leading English text on the conflict of laws, Dicey, that "while a court must recognise every foreign judgment it enforces, it need not enforce every judgment it recognises". That statement of principle holds true in Bermuda.
As above, it is possible for a foreign judgment to be recognised at common law where enforcement is not possible (for example, because it is in respect of something other than a definite sum of money, such as the specific performance of a contract). In such circumstances, the foreign judgment can be relied upon by way of a defence in proceedings before the Bermuda Court.
2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction.
A Writ must be issued and endorsed with a statement of claim which pleads a replication of the foreign claim, the existence of and reliance on the foreign judgment, the amount of the judgment debt and the costs claimed under the Writ.
Upon service of the Writ, the judgment debtor has 14 days to enter an appearance and a further 14 days in which to submit a defence.
If the debtor does not enter an appearance, the judgment creditor can obtain judgment by default. Otherwise, they can apply for a summary judgment (either before or after any defence) by filing a Summons and a short affidavit in support relying on the foreign judgment.
2.7 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made?
A foreign judgment that is both final and conclusive on the merits cannot be challenged on the basis of an error of fact or law. The Supreme Court will treat the matters adjudicated upon by the foreign court as having been finally determined and stands ready to enforce a foreign judgment if it does not fall within one of the excluded categories.
It is therefore not for the Supreme Court to engage in a rehearing or reassessment of the merits of the foreign proceedings on an application for enforcement. Accordingly, the court does not sit as a court of appeal against a judgment pronounced on the merits by a competent foreign court.
A judgment debtor can resist registration of a judgment under the 1958 Act by satisfying the court that:
- The foreign judgment is not a judgment to which the 1958 Act applies, for example because it is not a judgment of a superior court (the term 'superior court' being defined by the Act).
- The foreign court had no jurisdiction.
- The debtor did not receive sufficient notice of the proceedings to enable them to defend the proceedings and did not appear.
- The judgment was obtained by fraud.
- The rights conferred by the judgment are not vested in the person seeking its enforcement.
- The matter in dispute giving rise to the registered judgment was previously determined, and subject to a final and conclusive judgment by a court having jurisdiction over the matter.
There are wider grounds for resisting enforcement at common law. Those most frequently relied upon are:
- Want of jurisdiction by the foreign court, which is determined according to Bermudian law.
- Public policy (including that the sum sought to be enforced is payable in respect of taxes or similar charges, a fine or other penalty).
- Breach of the rules of natural justice in the proceedings in which the judgment was obtained.
Regardless of whether enforcement is sought under the 1958 Act or at common law, the Protection of Trading Interests Act 1981 makes clear that no judgment in respect of multiple damages, i.e. an amount arrived at by doubling, trebling or otherwise multiplying the sum assessed as compensation, is capable of being registered. The 1981 Act also precludes (in certain circumstances) the registration of foreign judgments under foreign laws designed to restrict competition.
2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters?
There is no such legal framework applicable to recognising and enforcing foreign judgments.
2.9 What is your court's approach to recognition and enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending between the parties?
Where there is an earlier conflicting Bermuda judgment between the parties relating to the same issue as determined by the foreign judgment, a defendant would be entitled to resist enforcement of the foreign judgment on res judicata grounds.
Where Bermuda proceedings are pending when one of the parties seeks recognition or enforcement of a foreign judgment on the same issue(s), the pending Bermuda proceedings are likely to be subject to the foreign judgment and may be stayed pending confirmation of the recognition/enforceability of the foreign judgment.
2.10 What is your court's approach to recognition and enforcement of a foreign judgment when there is a conflicting local law or prior judgment on the same or a similar issue, but between different parties?
Absent a challenge on the bases above (which encompass some Bermuda law principles such as a prohibition on fraud and which protect public policy considerations), the Bermuda Court will not refuse to enforce a foreign judgment on the basis of an error of fact or law, including the foreign court's determination of Bermuda law.
2.11 What is your court's approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country?
Please see question 2.10 above.
2.12 Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain.
There are no differences in the rules and procedure of recognition and enforcement between the various parishes of Bermuda.
2.13 What is the relevant limitation period to recognise and enforce a foreign judgment?
Under the 1958 Act (see below), a judgment creditor has six years from the date of the foreign judgment to register it in Bermuda. Where steps are taken to appeal the foreign judgment, the six-year period will begin to run from the date of the last judgment given in the proceedings.
At common law, the foreign judgment creates a debt capable of enforcement under the law of obligation, and time will begin to run from the date of the foreign judgment. The usual limitation period for actions arising from a simple contract, such as debt, is six years.
The statute of limitations of the foreign jurisdiction is irrelevant to the running of time for enforcement in Bermuda. A foreign judgment given on the basis of a foreign law relating to limitation will be deemed by the Bermuda Court to have been determined on its merits.
3 Special Enforcement Regimes Applicable to Judgments from Certain Countries
3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to be recognised and enforceable under the respective regime?
To be recognised and enforceable under the 1958 Act, the foreign judgment:
1 Must be from a prescribed Commonwealth Jurisdiction including, amongst others, the UK, Australia and numerous Caribbean jurisdictions (although notably not the Cayman or Turks and Caicos Islands), Hong Kong, Nigeria, Guyana and Gibraltar. It should be noted that the United States, the Channel Islands, Singapore, Canada, India, South Africa and New Zealand are not included.
2 Must be of 'a superior court' of the foreign jurisdiction (e.g. not a county court or magistrates' court in the UK).
3 Must be final and conclusive on the merits as between the parties.
4 Must be for a definite sum of money, excluding a sum payable in respect of taxes, a fine or penalty.
5 Must be (or the latest appeal ruling in respect of it must be) less than six years old.
6 Must have been issued by a court which had jurisdiction (as defined in the statute) to make that judgment, which in the case of:
6.1 An action in personam: (a) requires submission to the foreign proceedings other than for the purpose of protecting, or obtaining the release of property seized; (b) requires that the judgment debtor was resident in or had his principal place of business in the foreign jurisdiction when the claim was issued; or (c) requires that the judgment debtor had an office or place of business in the foreign jurisdiction, and such proceeding was in respect of a transaction effected through such an office or place.
6.2 An action against property, requires that the property was, at the time of the proceedings giving rise to the judgment, situated in the foreign jurisdiction.
7 Must have been made in circumstances where the defendant received notice of the proceedings with sufficient time to defend them.
8 Must not have been obtained by fraud.
9 Must not have been issued contrary to an agreement to settle the dispute in another jurisdiction, unless the foreign proceedings giving rise to the foreign judgment had been submitted to in waiver of that agreement.
10 Must not be against a judgment debtor who, under the rules of public international law, was entitled to immunity from the jurisdiction of the foreign court.
The Bermuda Court may also refuse to register a foreign judgment where there is a previous final and conclusive foreign judgment in the matter inconsistent with that sought to be registered.
3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is the difference between the legal effect of recognition and enforcement?
The regime does not specify a difference between recognition and enforcement.
3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment.
An application must be made by Originating Summons with an affidavit in support exhibiting a certified copy of the foreign judgment to the Supreme Court within six years of the date of the judgment (or any determination of an appeal of the judgment) and served on the defendant. Although the defendant is not required to enter an appearance, he may either file evidence in response, or wait for the making of the Order registering the foreign judgment, which will provide a time period (usually 28 days) for the defendant to file a Summons to set aside with evidence in support.
3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/enforcement of a judgment be challenged under the special regime? When can such a challenge be made?
On the failure to satisfy the grounds for registration above and in accordance with the procedure.
4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor?
Once a foreign judgment is registered under the 1958 Act, or recognised as enforceable at common law, the judgment may be enforced as if it had been made by the Supreme Court by way of:
- Writ of fieri facias
- Garnishee proceedings
- The appointment of a receiver
- Committal (in appropriate circumstances)
- Writ of sequestration, and/or
- Insolvency proceedings.
5 Other matters
5.1 Have there been any noteworthy recent (in the last 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign judgments? Please provide a brief description.
There have not been any noteworthy recent legal developments in Bermuda relevant to the recognition and enforcement of foreign judgments.
5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your jurisdiction?
Enforcement advice should be sought before commencing foreign proceedings, if possible, to ensure that all requirements for enforcement are met by the foreign proceedings/judgment.
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. Kennedys operates in Bermuda in association with Kennedys Chudleigh Ltd.