Enforcement of Foreign Judgments in BVI: English Common Law Ghost is Laid to Rest

16 May 2012

Judgments from jurisdictions with which the British Virgin Islands (the "BVI") has reciprocity arrangements can be registered via a summary ex parte process in circumstances where the Court considers it just and convenient that they should be enforced in the Territory.  In S v J, currently unreported, S sought to register and enforce a judgment of the English Court pursuant to the provisions of the Reciprocal Enforcement of Judgments Act 1922, which provides for the registration of judgments of the courts of England, Scotland and Northern Ireland.  The Act mandates that no judgment shall be ordered to be registered if, among other things, the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the foreign court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of the foreign court.

It was common ground that R was neither ordinarily resident, nor carried on business in England.  It had acknowledged service of the English proceedings but had then appeared before the English Court both to challenge jurisdiction and, if unsuccessful in that challenge, to persuade the Court to decline jurisdiction on forum non conveniens grounds.  The English Court declined both applications and R took no further part in the trial.  It did, however, appear again, in the context of a worldwide freezing order which S had obtained, and to appeal (successfully) an anti-suit injunction preventing it from pursuing S in court proceedings in Russia.

In England, the Civil Jurisdiction and Judgments Act 1982 expressly provides that a defendant who appears only for the purpose of contesting jurisdiction, seeking a stay on forum grounds or protecting property threatened by seizure will not be deemed to have submitted to the jurisdiction of the Court.  The 1982 Act was passed in response to a number of common law cases, Henry v Geoprosco among them, which had held that, whilst contesting the jurisdiction of the court would not amount to a submission unless the defendant's appearance for that purpose was automatically converted into a "full" appearance if the challenge was lost, an invitation to the court to exercise a discretion – for example by granting a stay on the basis of forum non conveniens – would amount to submission.  In common with a number of overseas territories, the BVI had not legislated for the position, and counsel for S argued that as it was Court of Appeal authority, Geopresco remained highly persuasive in the BVI.

The Commercial Court Judge was not convinced.  He viewed the common law dicta as obiter, and said it would be a retrograde step to introduce into the law of the BVI rules that ceased to be part of the law of England thirty years ago.  He therefore declined to follow Geoprosco, holding that neither the challenge to jurisdiction nor the stay application were sufficient to amount to submission. 

He was prepared to accept, however, at least for the purposes of the ex parte application for registration, that R's active participation in the post-judgment freezing order proceedings – where R had sought to vary the terms of the order, sought adjournments, and complied with orders for disclosure of financial information – was sufficient to amount to submission.  The Judge accordingly gave leave to register the judgment.  He left open the question whether R's appeal of the anti-suit injunction would also have been enough to lead to registration in the BVI.

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