Snapshot: getting your foreign judgment recognised and enforced

Introduction
Recognition and enforcement of foreign judgments at common law
Did the foreign court have jurisdiction?
Final, interim or interlocutory?
Contrary to Cayman public policy?
Enforcement and execution

Introduction

Ensuring the effective enforcement of judgments is a crucial aspect of a successful litigation strategy. The Cayman Islands recognises that valid decisions made elsewhere should be as enforceable as domestic judgments. While the statutory regime for registration and enforcement has been extended to only some of the superior courts of Australia and its external territories, the Cayman courts are willing to consider extending assistance to all judgment creditors through the well-trodden common law route.

Additionally, rather than merely seeking recognition of a monetary judgment, a plaintiff may wish to consider direct recourse to insolvency proceedings or the holder of a non-monetary judgment may consider relief in aid of those foreign proceedings.

This article outlines the common law route for recognition and enforcement.

Recognition and enforcement of foreign judgments at common law

Unless obtained from that handful of Australian courts, a successful foreign plaintiff must bring a new action in the Financial Services Division of the Grand Court against the defendant if it wishes to have the judgment recognised and enforced in the Cayman Islands. Initially limited to monetary judgments that create a debt obligation between the parties, the Grand Court now accepts that it should recognise non-monetary judgments where the principle of comity applies.

The Grand Court may enter a domestic judgment of a valid foreign judgment if it:

• was given by a court of competent jurisdiction;
• is final and conclusive;
• is not fiscal, penal or contrary to Cayman public policy; and
• is not statute barred by Cayman limitation periods.

Did the foreign court have jurisdiction?

The Grand Court must be satisfied that the foreign court had proper jurisdiction according to Cayman conflicts principles. In the Cayman Islands, this will be the case if the defendant:

• was ordinarily resident in the foreign country at the time of commencing the foreign proceedings;
• voluntarily participated in the proceedings before the foreign court, other than only to contest jurisdiction;
• appeared as a party in the proceedings before the foreign court; or
• expressly agreed to submit to the jurisdiction of the foreign court (as opposed to the laws of the foreign country), by contract or subsequent conduct.

Final, interim or interlocutory?

Whether a judgment is final, interim or interlocutory will depend on its nature. A decision will ordinarily be regarded as final and conclusive even if it is under appeal or an appeal is pending in the foreign court. However, the Grand Court has unfettered discretion and will decide each case on its merits.

Contrary to Cayman public policy?

The Grand Court will not enforce a foreign judgment which is contrary to public policy. Examples include:

• where the foreign judgment was obtained in proceedings contrary to natural justice;
• where the defendant's rights were breached (eg, by failure to allow the defendant to present its case or where inadequate notice of the proceedings was given to the defendant); or
• if the applicable foreign law is repugnant to Cayman law.

Enforcement and execution

If the Grand Court gives judgment in favour of the plaintiff, said judgment may be enforced in the same manner as a domestic judgment. For a monetary judgment, this includes:

• a warrant of execution by which the defendant's moveable assets (including cash) are seized and sold to pay the judgment debt;
• a sale of land owned by the defendant;
• an attachment of assets beneficially owned by the defendant (including those in the hands of a third party, such as a bank account);
• a garnishee order by which debts owed to the defendant can be claimed in satisfaction of the judgment debt;
• an order for commitment to prison for wilfully refusing to pay a debt that is within the defendant's means to pay; and
• an order appointing liquidators (for corporates) or a bankruptcy trustee (for individuals), pursuant to which the defendant's estate is wound up for failure to pay a due debt of $100 or more.

For further information on this topic please contact William Jones or Deborah Barker Roye at Ogier's Grand Cayman office by telephone (+1 345 949 9876) or email (william.jones@ogier.com or deborah.barkerroye@ogier.com). Alternatively, contact Jeremy Snead at Ogier's London office by telephone (+44 1481 752301) or email (jeremy.snead@ogier.com). The Ogier website can be accessed at www.ogier.com.