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Conditions for recognition and enforcement
Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?
While there are no judgments which are expressly excluded under the Reciprocal Enforcement of Judgments Act, it is generally considered that only monetary judgments (including arbitral awards) can be registered. However, the definition of ‘judgment’ as set out under Section 2 of the act is described as:
“Any judgment or order given or made by a court in any civil proceedings whether before or after the passing of this Act and 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.”
This definition is rather broad and the position in this regard is not entirely settled. A default judgment which has not been challenged and is therefore final and conclusive can be registered under the Reciprocal Enforcement of Judgments Act. On the other hand, it may be difficult to register a judgment in relation to punitive damages as the courts in the Bahamas tend not to award them and therefore such a judgment may fall within the exceptions under Section 3(2) of the act.
The same considerations would be applicable in relation to fresh actions commenced in relation to judgments from jurisdictions in relation to which the Reciprocal Enforcement of Judgments Act does not apply.
How are foreign judgments subject to appeal treated?
Foreign judgments that are subject to appeal will not be enforced in the Bahamas. Section 3(2)(e) of the Reciprocal Enforcement of Judgments Act provides that a judgment debtor of a foreign judgment should not be exposed to its registration where there was a right of appeal against that judgment. Therefore, a judgment should not be registered until it is final and conclusive.
In relation to judgments from jurisdictions in relation to which the Reciprocal Enforcement of Judgments Act does not apply the same consideration would be applicable and a defendant to proceedings could seek to stay such proceedings pending the outcome of the appeal.
What are the formal and documentary requirements for recognition and enforcement of foreign judgments?
Under the Reciprocal Enforcement of Judgments Act, a judgment creditor must make an application to have the judgment registered before it can be enforced. An application under the act for the recognition and enforcement of foreign judgments is made ex parte or by summons to a judge of the Supreme Court. The application must be supported by an affidavit setting out the relevant facts and exhibiting the judgment. Within the affidavit, the affiant must verify that the judgment creditor is entitled to enforce the judgment and that the judgment does not fall within any of the cases under the Reciprocal Enforcement of Judgments Act in which a judgment cannot properly be ordered to be registered. Supporting evidence should also be exhibited to the affidavit.
In cases where the order is made on a summons, the order registering the judgment should be served on the judgment debtor. Once the foreign judgment is registered, it will have the same force and effect as a judgment issued by the Supreme Court.
Where a judgment has been obtained in the Supreme Court, the court will issue to the judgment creditor a certified copy of the judgment. The judgment creditor is required to serve a notice of registration on the judgment debtor. The notice of registration is required to contain the right of the judgment debtor to apply for an order setting aside the registration and the number of days for applying to set aside the registration.
A plaintiff seeking to enforce a foreign judgment from a country not listed under the Reciprocal Enforcement of Judgments Act, can enforce the judgment as a debt by issuing fresh legal proceedings. Such proceedings will be commenced by a writ of summons which must be served on the judgment debtor. Thereafter, where a defendant does not enter an appearance to the proceedings a judgment in default of appearance may be filed. Otherwise, where an appearance is entered, a summons, supported by an affidavit should be filed seeking summary judgment. Within the affidavit the relevant facts should be set out along with a copy of the judgment and an averment from the affiant that the judgment debtor has no defence to the claim.
What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?
In the Bahamas, the courts will not look at the merits of the case unless it can be established by the judgment debtor that:
- the foreign judgment was not final and conclusive;
- the foreign court did not have jurisdiction to hear the matter;
- the foreign judgment was obtained by fraud;
- the foreign proceedings were opposed to natural justice; or
- there is some public policy reason for not enforcing the judgment.
What is the limitation period for enforcement of a foreign judgment?
Under the Reciprocal Enforcement of Judgments Act the limitation period for the enforcement of a foreign judgment in the Bahamas is 12 months after the date of the judgment unless the Bahamian court grants a longer period on the basis that it is just and convenient to do so.
In relation to judgments from jurisdictions in relation to which the Reciprocal Enforcement of Judgments Act does not apply the limitation period would be six years.
Grounds for refusal
On what grounds can recognition and enforcement be refused?
As set out above under the Reciprocal Enforcement of Judgments Act, an enforcement may be refused on one of the following grounds:
- the original court acted without jurisdiction;
- the judgment debtor, being a person not ordinarily resident or carrying on business in the relevant jurisdiction, did not voluntarily submit to the jurisdiction of the foreign court;
- the judgment debtor was not duly served with notice of the foreign proceedings;
- the judgment was obtained by fraud;
- the judgment is not final or conclusive (usually due to a pending appeal);
- the judgment should not be registered as it is of a kind which could not have been obtained in the Bahamas due to public policy reasons.
In relation to judgments from jurisdictions where the Reciprocal Enforcement of Judgments Act does not apply, similar considerations will prevail.
Service of process
To what extent does the enforcing court review the service of process in the original foreign proceedings?
Foreign judgments will not be registered under the Reciprocal Enforcement of Judgments Act if the judgment debtor was not duly served and did not appear in the original foreign proceedings. In such a case where the judgment debtor is not served with the process in the foreign court, the courts in the Bahamas will refuse to recognise and enforce the judgment.
In relation to judgments from jurisdictions in relation to which the Reciprocal Enforcement of Judgments Act does not apply a fresh action on the debt will not be successful where there has been a breach of the rules of natural justice. This would arise where the judgment debtor did not have proper notice of the original proceedings or was not afforded an opportunity to be heard.
What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?
Where the judgment is contrary to public policy the foreign judgment will not be enforced by the courts in the Bahamas. For example, a foreign judgment will be contrary to public policy and will not be enforced if it was obtained for:
- taxes, fines or penalties; or
- in breach of an anti-suit injunction.
What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?
The foreign court must have had jurisdiction to grant the judgment, in order for the judgment to be registered and enforced in the Bahamas or for a fresh action to be successful.
Concurrent proceedings and conflicting judgments
How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?
In the Bahamas, the courts will refuse an application for recognition and enforcement and a fresh action will not be successful if it is determined that the judgment is not conclusive.
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