Is a foreign court’s judgment enforceable?

Sherry Ann McGregor
Sherry Ann McGregor

October 14, 2019

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On March 16, 2015, in an article titled ‘Is a foreign court’s judgement enforceable?”, I discussed the decision of the Supreme Court in the case of Miller v Miller [2015] JMSC Civ. 18. It turns out that the matter did not end there, because Mrs Miller, who had failed in her bid to enforce the judgment of a court in Connecticut, USA, in relation to properties that were owned by her and her former husband in Jamaica, lodged an appeal to the Court of Appeal.

On September 23, 2019, the Court of Appeal ruled in Mrs Miller’s favour and reversed the Supreme Court’s decision. Effectively, the orders that had been made by the court in Connecticut to transfer into the name of trustees on trust for the children of the marriage, who were then minors, a property situated at Top Hill in the parish of Saint Elizabeth were given effect. Mr Miller was also ordered to account for rents earned from the property he had not transferred and to pay Mrs Miller’s costs in the Supreme Court and the Court of Appeal.

JURISDICTION

The central issue in the case, which is bound to arise with greater frequency concerning parties who live and own properties in different jurisdictions, is whether a court order made in a foreign court concerning property in Jamaica may be enforced in Jamaica. In the Supreme Court, the Learned Judge had found that Mr Miller had not submitted to the jurisdiction of the Connecticut court for the purposes of all of the orders on which Mrs Miller had sought to rely, and the Court of Appeal found that the finding was incorrect.

In referring to what he described as “… learning [that] is accepted as being correct and applicable to Jamaican law”, the Learned Justice of Appeal recited that, “It remains the case that an English court cannot entertain any action for a declaration as to title to foreign immovables, or for possession of such immovables or for injunctions having a similar effect … . Where the proceedings are not principally concerned with questions of title to, or possession of, immovable property, the usual rules as to jurisdiction in personam apply … . Where the English court has general jurisdiction over a person and there exists between the parties a personal obligation or equity which does not depend for its existence on the law of the location (‘lex situs’) of the immovable property but arises out of contract, or trust, or from fraud or other unconscionable conduct, the court may exercise jurisdiction in personam.”

One of the main points that determined the issue on appeal was the interpretation of the effect of paragraph 22 of the separation agreement, on which Mrs Miller had relied to get the last two order in the Connecticut court. Paragraph 22 stated that, “Each of the parties hereto hereby irrevocably [consents] and submits to the jurisdiction of the courts of the State of Connecticut … in connection with any suit, action or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby … .”  The learned trial judge had found that Mr Miller’s submission to the jurisdiction of the court in earlier proceedings was not “for all disputes” and did not bind him to that court’s jurisdiction in subsequent proceedings. The Court of Appeal reached a different conclusion and held that, “The essential issue is whether the subject matter of that court’s subsequent order is so closely related to the subject of the earlier proceedings that the parties must be held to be bound by the subsequent order.”  

Arising from this appeal, the general principle that an agreement that is concluded between parties overseas that affects property in Jamaica may be enforced by the Jamaican Supreme Court in the exercise of its equitable jurisdiction still holds true. Also, orders of a foreign court made pursuant to that agreement will be valid if they were made while the parties were subject to the jurisdiction of that court.  Ensuring that the parties have acceded to the jurisdiction of the foreign court is therefore essential.

Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.

Sherry Ann McGregor

Author

Sherry Ann McGregor

Sherry Ann McGregor is a partner, mediator, and arbitrator in the firm of Nunes Scholefield DeLeon & Co.

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