Opening The Door To Enforcing Nonmonetary Judgments

Brunei and Bandone v Fidelis and Others [2008] JRC152.

Introduction

The common law restriction on enforcing nonmoney judgments (Rule

35(1) of Dicey Morris & Collins) ("Dicey") has been

amended in Jersey. The Courts now have a discretion to enforce

non-monetary judgments (such as orders for specific performance),

which are vital to effective modern day remedies. In doing so, the

Jersey Courts have adopted the approach taken in the Canadian and

Caymanian Courts.

Facts

In February 2000, the Brunei Investment Agency (the

"BIA") and the Government of Brunei

Darussalam brought proceedings against Prince Jefri in the High

Court of Brunei Darussalam alleging that Prince Jefri had

misappropriated over US $15 billion of State funds whilst acting as

Minister of Finance for Brunei Darussalam. In May 2000 the

proceedings were compromised.

Under the Settlement Agreement Prince Jefri was required to

return to the BIA all assets acquired with those misappropriated

funds. While some assets were returned in 2000 and 2001, Prince

Jefri failed to transfer the remaining assets, which included

shares in two Jersey companies. In 2004 the BIA applied to the

Brunei High Court for summary enforcement of the Settlement

Agreement.

The Brunei High Court ordered Prince Jefri to transfer the

shares in the Jersey companies (amongst other assets) to the BIA

(the "Brunei Judgment").

Prince Jefri appealed unsuccessfully to the Privy Council in

2007.

The Jersey Application

The BIA, represented by Ogier's Kerry Lawrence, applied to

Jersey's Royal Court to enforce the transfer of shares. The BIA

argued that, pursuant to principles of comity, the Jersey Courts

should recognise the judgment of the Brunei Court as binding upon

Prince Jefri and in doing so enforce the terms of the Settlement

Agreement. The BIA argued that having won its case in Brunei it

should not have to re-litigate the merits in Jersey.

Prince Jefri argued that the Court could not rely on comity,

that there was no statutory remedy and no residual jurisdiction to

enforce foreign non-money judgments under common law principles, as

Jersey should follow the English common law rule set out in Dicey

which restricts enforcement of foreign judgments to those for a

definite sum of money.

Rule 35(1) of Dicey states that "for a claim to be

brought to enforce a foreign judgment, the judgment must be for a

definite sum of money, which expression includes a final order for

costs... if, however, the judgment orders him to do...