The judgments of foreign Courts cannot be directly enforced in Guernsey by way of execution.
A foreign judgment may be recognised and subsequently enforced in Guernsey via:
- A statutory route pursuant to the Judgments (Reciprocal Enforcement) (Guernsey) Law, 1957 (Guernsey’s Reciprocal Enforcement Law
- Pursuant to common law principles.
The Statutory Approach: Registration of Foreign Judgments Pursuant to Guernsey’s Reciprocal Enforcement Law
Guernsey’s Reciprocal Enforcement Law enables the registration of judgments obtained in foreign countries that afford reciprocal treatment to judgments of the Guernsey courts. The following countries are deemed to be reciprocating countries under secondary legislation made under Guernsey’s Reciprocal Enforcement Law:
- England and Wales,
- the Isle of Man,
- Kingdom of the Netherlands,
- the Netherlands Antilles (now known Curacao and Sint Maarten)
- Northern Ireland,
- the Republic of Italy,
- Scotland, and
A judgment creditor under a judgment from a reciprocating country may apply for that judgment to be registered in Guernsey where the following criteria are satisfied:
- the judgment is from a superior court (in relation to, for example, the courts of England and Wales, superior courts will include the High Court of Justice, the Court of Appeal and the Supreme Court);
- the decision of the foreign court is final and conclusive as between the parties (notwithstanding that an appeal may be pending or that the judgment may still be subject to an appeal un the courts of the reciprocating country);
- a sum of money is payable under the judgment and that sum is not payable in respect of taxes or other similar charges, fines or other penalties;
- an application is made to the Royal Court within six years of the date of the original judgment or the date of the last judgment given in relevant appeal proceedings; and
- the original court had jurisdiction in the circumstances of the case.
There is a straight forward procedure for the registration of a judgment, which involves an ex parte application (i.e. one in which a judge decides the matter without the other party subject to the foreign judgment being in attendance) to the Royal Court. The application will be supported by affidavit evidence and a certified copy of the relevant judgment.
The Royal Court has jurisdiction to place conditions upon the registration of a foreign judgment, but once the judgment has been registered it will be treated as if it had originally been given by the Royal Court on the date of registration. This means that from the date of the registration, the judgment can be enforced in Guernsey and judgment interest can accrue under Guernsey law.
- those that have been wholly satisfied (NB: if at the date of the application for registration the judgment has been partly satisfied then the judgment can only be registered in respect of the remaining balance payable at that date);
- those that could not be enforced by execution in the court of the reciprocating country; or
- in personam judgments (meaning those where judgment is directed at a specific person) dealing with a matrimonial cause or any proceedings in connection with the administration of the estates of a deceased person’s, insolvency, the winding up of companies, lunacy or the guardianship of infants.
A judgment debtor is given the ability to apply under Guernsey’s Reciprocal Enforcement Law to have the registration of a foreign judgment set aside. Applications of this nature need to be made within 14 days from the date of service of the registered judgment. The Royal Court has jurisdiction to set aside the registration of a foreign judgment if it is satisfied that one of the following applies:
- the judgment is not one to which Guernsey’s Reciprocal Enforcement Law applies or the judgment was registered in contravention of that law;
- the courts of the reciprocating country did not have jurisdiction in the circumstances of the case;
- the judgment debtor did not receive notice of the proceedings in sufficient time to enable him to defend the proceedings and did not appear;
- the judgment was obtained by fraud;
- enforcement of the judgment would be contrary to Guernsey’s public policy; or
- the rights under the judgment are not vested in the person making the application for registration.
In determining whether a foreign court had the necessary jurisdiction to give judgment against the judgment debtor, it will be necessary to consider the nature of the action:
- For judgments given in an action in personam (i.e. against an individual):–
- Guernsey’s Reciprocal Enforcement Law provides that the relevant court of the reciprocating country will be deemed to have had jurisdiction if the judgment debtor:
- as defendant voluntarily submitted to the jurisdiction of the foreign court (save for the purpose of protecting or obtaining the release of property seized or threatened with seizure in the proceedings or for the purpose of challenging the jurisdiction of the court);
- was a claimant or a counter claimant in the proceedings before the original court;
- as defendant agreed before the commencement of the proceedings to submit to the jurisdiction of the foreign court;
- as defendant was, at the time when proceedings were instituted, resident in or, in the case of a body corporate, had its principle place of business in the country of the relevant court; or
- as defendant had an office or place of business in the country of the reciprocating country and the proceedings of the relevant court were in respect of a transaction effected through that office or place; or
- For judgments given in actions in rem (i.e. against property):
- the foreign court will be deemed to have had jurisdiction if the relevant property was situated in that country at the time of the proceedings.
- For judgments given in the case of any other type of action:
- the foreign court will be deemed to have had jurisdiction if its jurisdiction is recognised by the law of Guernsey.
The Common Law Approach: Recognition of Foreign Judgments Pursuant to the Common Law
If the registration of a judgment by a foreign Court is not available under Guernsey’s Reciprocal Enforcement Law, a judgment creditor may rely upon common law principles to have a judgment recognised and thereafter enforced in Guernsey.
In essence, a judgment creditor must sue on the foreign judgment in the ordinary manner utilised for a civil debt. In straight forward cases (which are the norm) the judgment debtor will not have a substantive defence to the debt and it will be relatively straightforward to obtain a judgment from the Royal Court.
A judgment debtor’s ability to challenge a foreign judgment will be limited to circumstances where
- the foreign court did not have jurisdiction to give judgment;
- the judgment was obtained by fraud on the part of the judgment creditor or by the foreign court;
- enforcement of the foreign judgment would be contrary to Guernsey’s public policy; or
- the proceedings before the foreign court were contrary to natural justice.
Enforcement in Guernsey
Once a judgment has been registered pursuant to Guernsey’s Reciprocal Enforcement Law or a successful claim has been made via the common law route, the judgment may then be enforced by HM Sheriff.
HM Sheriff has the power to institute wage arrests and to seize and sell a judgment debtor’s assets. A judgment creditor will also have access to remedial processes available under Guernsey law (which will be the relevant law following registration or recognition of a foreign judgment) against the judgment debtor’s personality (under the process of désastre) or realty (via a saisie).
If you require advice on the recognition or enforcement of a specific foreign judgment in Guernsey, then please contact: