Even when parties have obtained a judgment from a Court or the award of an Arbitrator, it may be necessary to take steps to enforce their rights under such judgment or award. This is so whether the judgment or award is obtained in Trinidad & Tobago or abroad.
In this Chapter, Jonathan Walker, Partner in Hamel-Smith’s Dispute & Risk Management Practice Group, provides an overview of the procedures by which one can enforce foreign and local judgments, as well as the modes of enforcing such judgments and awards.
The enforcement of foreign judgments by the courts of Trinidad & Tobago is usually dealt with through one of two avenues:
It is also possible in certain circumstances to institute a fresh action in Trinidad & Tobago based on the original cause of action. This is possible where the time for instituting such an action is not statute barred and/or the cause of action is one which is recognised as actionable, according to the applicable laws of Trinidad and Tobago.
The Judgments Extension Act provides a system of registration to facilitate the direct enforcement in Trinidad & Tobago of United Kingdom money judgments. The Act also provides for the registration of the judgments of specified Commonwealth countries which have similar reciprocal provisions. The current list of Commonwealth countries covered by the Act is as follows:
Commonwealth Countries within the West Indies:
Commonwealth Countries Outside the West Indies:
An application to register such judgments should be made within twelve (12) months after the date of the judgment, although the High Court of Trinidad & Tobago has the power to extend this time.
According to Section 4, these judgments will not be registered where:
Once a judgment is registered under the Act, as at its date of registration, it is of the same force and effect as a judgment originally obtained in Trinidad & Tobago. The reasonable costs of and incidental to the registration of the foreign judgment which is recognised by the Act in Trinidad & Tobago are recoverable as if such costs were payable under the judgment.
The foreign judgment must have been given by a court of competent jurisdiction.
Under the common law, a foreign court will be regarded as being jurisdictionally competent if at the time legal proceedings are commenced in the foreign court:
The Defendant has established and maintained at its own expense a fixed place of business of its own within that jurisdiction and for more than a minimum time has carried on its own business from that place; or
Alternatively, a foreign court will be treated as jurisdictionally competent if the Defendant has submitted to the jurisdiction of the foreign court:
The judgment must be for a definite sum of money, which expression includes a final order for costs.
To be enforceable in Trinidad & Tobago the judgment must satisfy the following criteria:
If a fresh action is brought in Trinidad & Tobago based on the original cause of action, the Plaintiff has several options open to him:
In the event that the above options are not open to the Plaintiff, the action will be set down for trial. It may take less than 3 years to be heard, even though the court has the discretion to fast-track a trial if adequate reasons are presented to justify this course of action.
An arbitral award has three consequences:
The award can be enforced either:
The Arbitration (Foreign Arbitral Awards) Act, 1996 (“the Act”) gives effect in Trinidad & Tobago to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted by the United Nations Conference on International Commercial Arbitration on 10 June 1958, commonly known as the New York Convention.
A country which has ratified the New York Convention agrees to enforce foreign arbitral awards subject to the proviso that the arbitration must have taken place in another country which is a party to the Convention.
Pursuant to the Act an “arbitration agreement” includes an arbitral clause in a contract or an arbitration agreement signed by the parties contained in an exchange of letters, telegrams or telex messages.
Before applying to enforce a foreign arbitral award in Trinidad and Tobago, pursuant to Section 3 of the Act, a certificate “purporting to be issued under the hand of” the Minister of Foreign Affairs to the effect that a country specified in the certificate is or was at a time specified a party to the Convention must be obtained and is conclusive proof in any proceedings that a country is, or was at a time specified, a party to the Convention.
According to Section 4 of the Act, “a convention award is enforceable in Trinidad and Tobago either by action” or by leave of the Court in the same manner as a judgment of the High Court.
Section 5 of the Act provides that a party seeking to enforce an award must produce to the Court:
Enforcement of an award may not be refused unless the person against whom it is invoked proves:
Enforcement of an award may also be refused if:
The Arbitration Act provides that an award or an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court with the same effect and in such a case judgment may be entered in terms of the award.
This summary procedure is not available, however:
The main defence available when a successful party brings an action on the arbitral award or applies under the summary procedure is that the arbitrator had no jurisdiction to make the award, or to make some part of it.
The grounds relied upon may include:
In an action on an arbitration award the Plaintiff should plead, and be prepared to prove:
If these factors cannot be proved, the party seeking to enforce the award may find that a Defendant can rely on the defences outlined above.
It should also be borne in mind that an action to enforce an arbitral award may take between 2 – 3 years to be heard even if sufficient reasons are put forward to fast-track the action.
Where a judgment for the payment of a sum of money is obtained in the Courts of Trinidad & Tobago or a foreign judgment is registered in Trinidad & Tobago, there are a number of options available to the judgment creditor to actually enforce it and obtain satisfaction from the judgment debtor.
WRIT OF FIERI FACIAS
This directs the Marshal of the High Court to levy upon any personal goods and chattels of a Defendant which are found and to sell same.
Once it can be proved that a debt is owing by a third party to a Defendant, this debt can be applied towards satisfaction of a judgment by attachment proceedings. An order can then be sought for direct payment from the third party to the Plaintiff towards the satisfaction of the judgment owed by the Defendant to the Plaintiff.
SUMMONS FOR SALE
Where a Defendant owns real estate, an application can be made to the court for an order for the sale of the Defendant’s property, out of the proceeds of which sale the judgment can be satisfied. A report on the title to the property is required to support such an application.
CREDITOR’S WINDING UP
Under the provisions of the Companies Act, a creditor may apply to wind up a company which is unable to pay its debts.
Generally, the directors of a company are not personally liable for the debts of the company. However, the Court, on hearing a petition to wind up a company, may declare that a director, whether past or present, is personally responsible for all or any of the debts or other liabilities of the company if it appears to the Court that the business of the company has been carried on:
(i) With intent to defraud creditors of the company;
(ii) With reckless disregard of the company’s obligations to pay its debts; or
(iii) With reckless disregard of the sufficiency of the company’s assets to satisfy its debts and liabilities.
This method of enforcement is rarely utilised as most legal means of execution will produce a quicker realisation. It is appropriate, however, when a Defendant is the recipient of income which cannot be garnished.
By this method, a creditor can obtain a charge on a Defendant’s holding of Government stock, funds or annuities and the stocks and shares of any company, whether held by him or in trust for him and whether in possession or reversion or vested or contingent.
This mode of enforcement enables a Plaintiff to summon a Defendant to court to give evidence as to the Defendant’s means and assets. On the hearing of the Summons, an order may be made by the court for the payment of instalments by the Debtor until the debt is fully satisfied. The Defendant’s Paymaster may also be summoned to give evidence as to the Defendant’s income. In appropriate cases, the order may be “guarded” by the imposing of a term of imprisonment in the event that the debtor defaults in paying the instalments.
An Application may be made to the Court in Trinidad & Tobago by way of a Notice which requires the debtor to pay the judgment debt or sum in accordance with the terms of the judgment. Thereafter the creditor may present a Bankruptcy Petition against the debtor on which the Court may make an order. Consequent on the order a general meeting of the debtors and creditors is held to determine the best method of dealing with his debts and the debtor is required thereafter to prepare and submit to the Official Receiver a statement of his affairs verified by affidavit showing the particulars of the debtor’s assets, debts, liabilities, the names, residences and occupations of his creditors, securities held by them respectively, the dates when the securities were given and such other information that the Receiver may require. The debtor shall also be required to appear at court to be examined as to his conduct dealings and property.
Where a person is alleged to be indebted and to be about to quit Trinidad & Tobago to avoid payment of the debt, on an Application by affidavit the Judge of the High Court may direct the Marshal to arrest and bring before the court such person. The affidavit must be made in respect of a debt of $250.00 and upwards and must verify the deponent’s belief that there is no defence to the action and that the deponent believes that it is the debtor’s intention to quit Trinidad & Tobago giving particulars of the debt, on which and the place for which the debtor proposes to leave as far as same is known to the deponent.
On service of the warrant, if the debtor does not confess the judgment and provides security by the deposit of money or by a bond the debtor may be imprisoned. The debtor may be discharged however on proof of: