Enforcement Of Foreign Judgments - Bermuda (Kluwer Law International)

• Published date: 22 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Carey Olsen
• Author: Mr Keith Robinson and Marcus Symonds

Partner Keith Robinson and associate Marcus Symonds have recently authored the Bermuda chapter of 'Enforcement of foreign judgments' for Kluwer Law International. The chapter covers a number of topics including uniformity of law and regulation, judgments, currency regulations and restrictions, and documentary requirements.

This chapter is up to date as of March 2021.

Uniformity of Law and Regulation

Bermuda is a British Overseas Territory and its legal system is derived from the English legal system. By virtue of the Constitution of Bermuda (1965), legislation is passed by a bicameral legislature. Subject to any statutory amendment since, the common law, the doctrines of equity, and the Acts of Parliament of England of general application which were in force in England at the date when Bermuda was settled (11 July 1612) have the force of law in Bermuda ¹. Bermuda is not a federal jurisdiction and the method for the enforcement of a judgment in Bermuda depends on the country from which the judgment emanates. A system of reciprocal enforcement by registration applies to judgments for a fixed sum issued in certain countries ² while with respect to the remainder, under common law principles, fresh proceedings must be issued in Bermuda founded upon the overseas judgment providing that it is for a fixed or arithmetically ascertainable amount.

Judgments

Definition

The Judgments (Reciprocal Enforcement) Act 1958 defines a judgment 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 a sum of money in respect of compensation or 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. ³

The Judgments (Reciprocal Enforcement) Act 1958 applies only to judgments of the superior courts of the countries, states or territories listed at paragraph 21 which are final and conclusive ⁴ as between the parties thereto and there is payable under the judgment a sum of money, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty.

Categories

1. Money judgments are enforceable either under the Judgments (Reciprocal Enforcement) Act 1958 or common law providing certain conditions are met.
2. Non-money judgements are not enforceable under the 1958 Act or common law. To the extent that the foreign judgment orders the defendant to do anything else, for example, specific performance of a contract, that part of the judgment will likely not be enforceable based on English and Australian authorities ⁵, although it may be capable of recognition, for example, on the grounds of issue estoppel or res judicata
3. Injunctions will not be enforced by the courts of Bermuda. Such a judgment may be recognized by the Bermuda courts as a defence to a claim or as conclusive of an issue in a claim but would not be sufficient to found a cause of action.
4. Arbitration awards are enforceable through the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Part IV of the Bermuda International Conciliation and Arbitration Act 1993.
5. Judgments as to personal status are not enforceable as such in Bermuda but they may be recognized by the courts of Bermuda either pursuant to section 7 of the Judgments (Reciprocal Enforcement) Act 1958 or common law. Recognition would be given to such judgments in the course of proceedings where an issue arose as to personal status. See also 2.2(h) below with regard to maintenance orders.
6. Judgments which consist of an award of multiple damages being a judgment for an amount arrived at by doubling, trebling or otherwise multiplying a sum assessed as compensation for the loss or damage found to have been sustained by the person in whose favour the judgment is given will not be enforced in Bermuda either under the Judgments (Reciprocal Enforcement) Act 1958 or at common law. This is the effect of section 7 of the Protection of Trading Interests Act 1981. An award for punitive damages which does not fall within the definition of multiple damages in the 1981 Act may be unenforceable as being contrary to public policy in Bermuda.
7. Providing that the judgment is of a nature that would otherwise be enforced in Bermuda, then it is unlikely that it would be material that the judgment was itself a recognition of a previous foreign judgment.
8. Foreign custody orders are not enforceable. ⁶ The Maintenance Orders (Reciprocal Enforcement) Act 1974 makes provision for the reciprocal enforcement in respect of certain maintenance orders made by the courts of the United Kingdom of Great Britain and Northern Ireland Barbados, Guernsey, Hong Kong, Jamaica, Jersey, New South Wales St. Vincent, The Isle of Man, The Leeward Islands, ⁷ the State of California, the State of Connecticut, the State of Florida, the State of Hawaii, the State of Maryland, the State of New Jersey and the State of Ohio The legislation provides for the enforcement of provisional maintenance orders made in reciprocating countries, states or territories providing same are confirmed by the Bermuda Magistrates Court. Maintenance Orders from countries other than those to which the Maintenance Orders (Reciprocal Enforcement) Act 1974 applies are not enforceable in Bermuda but would be recognized under the principles set out at paragraph 2(e).
9. There is no reason in principle why judgments against the government of Bermuda or any of its organs would not be enforced subject to the defences and requirements for jurisdiction as are set out in this chapter. ⁸
10. Judgments which seek to enforce foreign fiscal laws will not be enforced. ⁹ In addition, section 7 of the Protection of Trading Interests Act 1981 provides that the Minister of Finance can make an order in respect of any provision or rule of law which appears to him or her to be concerned with the prohibition or regulation of agreements, arrangements or practices designed to restrain, distort or restrict competition. Any foreign judgment based on such a provision or rule of law will not be enforced in Bermuda.

Reciprocity

Reciprocity of enforcement on the part of foreign courts is essential for enforcement pursuant to the Judgments (Reciprocal Enforcement) Act 1958. Enforcement at common law as outlined herein does not depend on reciprocity.

Currency Regulations and Restrictions

(a & b) Bermuda has detailed exchange control regulations set out in the Exchange Control Act 1972 and the Exchange Control Regulations 1973. It is unlikely that these provisions would prevent the free transfer of any amount which may be recovered as a result of the enforcement of a foreign judgment. The currency of Bermuda is the Bermuda Dollar which is at par with the United States Dollar.

(c) Any judgment which is to be registered under the Judgments (Reciprocal Enforcement) Act 1958 and which is expressed in any currency not legal tender in Bermuda must be converted into Bermuda Dollars at the exchange rate prevailing at the date of the judgment. ¹⁰ In an action seeking to enforce a judgment other than by means of the Judgments (Reciprocal Enforcement) Act 1958, the value of the judgment does not need to be converted into Bermuda Dollars. ¹¹

Documentary Requirements

For judgments which can be enforced by registration under the Judgments (Reciprocal Enforcement) Act 1958 the provisions for documentation set out in the Judgments (Reciprocal Enforcement) Rules 1976 must be followed. ¹² These provide for a supporting Affidavit which exhibits the judgment or a verified or certified or otherwise duly authenticated copy stating to the best of the information and belief of the deponent that the judgment creditor is entitled to enforce the judgment and that the judgment does not fall within any of the classes of judgment which cannot be properly ordered to be registered under the Act. The Affidavit must also in so far as possible, give the full name, title, trade or business and last known place of abode or business of the judgment creditor and judgment debtor. The Affidavit would also need to state that the judgment remains unsatisfied.

In the case of a judgment which is enforceable by action at common law, the party who has the benefit of the foreign money judgment should issue a Writ of Bermuda-6Summons endorsed with a Statement of Claim. ¹³ The Statement of Claim should plead the date, subject matter and amount of the foreign judgment. The Statement of Claim should also plead the basis on which it is claimed that the foreign court had jurisdiction over the defendant and it should be clear from the pleading that the judgment is for a fixed or arithmetically ascertainable amount, that it does not offend against section 7 of the Protection of Trading Interests...