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.
Enforcement of Foreign High Court Judgments in Trinidad and Tobago
The enforcement of foreign judgments by the courts of Trinidad & Tobago is usually dealt with through one of two avenues:
- by way of registration under the Judgments Extension Act; or
- by way of common law, i.e. by instituting an action in Trinidad & Tobago on the foreign judgment.
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.
Statute
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:
- Bahamas
- Barbados
- Grenada
- Guyana
- Jamaica
- Leeward Islands
- St. Lucia
- St. Vincent
Commonwealth Countries Outside the West Indies:
- Australia
- Cocos (Keeling) Islands and Christmas Island
- Norfolk Island
- Papua and New Guinea
- India
- Nigeria
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:
- The original court acted without jurisdiction;
- the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court;
- The judgment debtor, being the defendant in the proceedings, was not duly served
with the process of the original court and did not appear, not withstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court; - The judgment was obtained by fraud;
- The judgment debtor satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment; or
- The judgment was in respect of a cause of action which, for reasons of public policy or for some other similar reason, could not have been entertained by the registering court.
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.
Common Law – Action on Foreign Judgment
A foreign judgment that emanates from a jurisdiction which does not fall within the schedule of countries listed in the Judgments Extension Act will be enforceable in Trinidad & Tobago once the following criteria are satisfied:
- The courts of Trinidad & Tobago recognise the jurisdictional competence of the foreign Court;
- The foreign judgment is for a definite sum of money;
- The foreign judgment is final and conclusive; and
- There is no defence to the recognition of the foreign judgment.
Jurisdictional Competence
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
- If a representative of the Defendant has for more than a minimum period of time carried on the business of the Defendant in the jurisdiction at or from some fixed place of business.
Alternatively, a foreign court will be treated as jurisdictionally competent if the Defendant has submitted to the jurisdiction of the foreign court:
- By instituting the proceedings or by counterclaiming in them;
- By voluntarily appearing in the proceedings as a Defendant to dispute the merits (other than by appearing solely to contest the jurisdiction of the foreign court); or
- By entering into an agreement to submit the dispute to the jurisdiction of the foreign courts.
Judgement for Decline
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:
- It must order that the Defendant pay to the Plaintiff a definite and actually ascertained sum of money (if a mere arithmetical calculation is required for the ascertainment of the sum, it will be treated as being ascertained); and
- It must be for a sum other than a sum payable in respect of taxes, a fine or a penalty. The courts of Trinidad & Tobago have no jurisdiction to entertain an action for the enforcement, either directly or indirectly, of a penal or revenue law of a foreign jurisdiction. However, if the foreign judgment imposes a fine on the Defendant and also orders him to pay damages, the latter part of the judgment can be severed from the former and enforced in Trinidad & Tobago.
Final and Conclusive Judgement
The judgment must finally and conclusively establish the existence of the debt so as to make it res judicata between the parties. Thus:
- A foreign judgment is not final if it is liable to be abrogated or varied by the court which pronounced it;
- If the judgment is given by a court of a country forming part of a larger federal system, e.g. an American state, the finality and conclusiveness of the judgment in the country where it is given is alone relevant to Trinidad & Tobago. Whether such judgment is final and conclusive in parts of the federal system (e.g. other American States) is irrelevant; and
- A foreign judgment may be final and conclusive even though it is subject to an appeal, and even though an appeal is actually pending in the foreign jurisdiction where the judgment was given. In the proper case, however, a stay of execution would be ordered by the Trinidad & Tobago Court pending a possible appeal.
Defence to Recognition
The foreign judgment will not be enforceable in Trinidad & Tobago if:
- It was obtained by fraud;
- Its enforcement is contrary to public policy; or
- Natural justice was not observed.
Common Law – Fresh Action on Original Cause of Action
If a fresh action is brought in Trinidad & Tobago based on the original cause of action, the Plaintiff has several options open to him:
- Where the Defendant does not enter an Appearance to the action in Trinidad & Tobago, the Plaintiff may enter judgment in default of Appearance at once;
- Where the Defendant enters an Appearance, the Plaintiff may apply for summary judgment on the basis that the Defendant has no defence to the claim. However, for the Plaintiff to succeed on an application for summary judgment, he must be in a position to prove that there in no dispute as to the facts which might give rise to a defence;
- Where the Plaintiff’s application for summary judgment is unsuccessful, and the Defendant is granted leave to issue a Defence in the action, the Plaintiff may obtain a judgment in default of Defence if the Defendant does not file his Defence within the stipulated time frame.
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.
Enforcement of Foreign Arbitral Awards in Trinidad and Tobago
An arbitral award has three consequences:
- it creates new rights in favour of a successful party which he can enforce in the courts of Trinidad & Tobago in substitution for the rights upon which his claim or defence was founded;
- it precludes either party to the arbitration from contradicting the decision of the arbitrator on any issue decided by the award and also upon any issue that was within the jurisdiction of the arbitrator to decide but which, whether deliberately or accidentally, he was not asked to decide; and
- it can operate to bar a claimant, whether successful or unsuccessful, from bringing the same claim again in a subsequent arbitration or action.
The award can be enforced either:
- by statute;
- by the summary procedure provided under the Arbitration Act, or
- by bringing an action on the award.
Statute
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:
- the duly authenticated original award or a duly certified copy of it;
- the original arbitration agreement or a duly certified copy of it; and
- a translation of the award or agreement certified by an official or sworn translator or by a diplomatic or consular agent, if the award or agreement is in a language other than English.
Enforcement of an award may not be refused unless the person against whom it is invoked proves:
- that a party to the arbitration agreement is under some incapacity under the law applicable to that party;
- that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made;
- that he was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case;
- that the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration. (N.B. An award that contains decisions on matters not submitted to arbitration may be enforced to the extent that it contains decisions on matters submitted to arbitration that can be separated from those matters not so submitted);
- that the composition of the arbitral authority, or the arbitral procedure, was not in accordance with the agreement of the parties or, failing that, with the law of the country where the arbitration took place; or
- that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority in the country in which, or under the law of which, the award was made.
Enforcement of an award may also be refused if:
- the award is in respect of a matter that is not capable of settlement by arbitration; or
- it would be contrary to public policy to enforce the award.
Summary of Enforcement of Award
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:
- If the arbitration agreement is not in writing and is therefore not within the Arbitration Act;
- Where the award is declaratory and therefore does not constitute award of payment of a sum of money, and
- If the award is not in a form in which it can be entered as a judgment e.g. it requires some calculation to be made before the amount payable is known. Leave can be given, however, to enforce an arbitral award which orders payment of an amount expressed in a foreign currency.
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:
- That there was no valid submission, so that the entire arbitration was a nullity;
- That the arbitrator was disqualified, that he did not possess some qualification that he was required by the arbitration agreement to possess, e.g. membership of a specified association, or
- That the award, though valid when made, has ceased to be binding because it has subsequently been discharged, e.g. by a subsequent agreement between the parties.
Action on the Award
In an action on an arbitration award the Plaintiff should plead, and be prepared to prove:
- The arbitration agreement;
- The reference to the arbitrator of a dispute which was within the terms of that agreement;
- That the arbitrator was duly qualified and duly appointed; and
- The award itself.
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.
Modes of Enforcement
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.
Attachment Proceedings
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.
Appointment of a Receiver
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.
Charging Order on Stocks and Shares
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.
Judgement Summons
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.
Bankruptcy Proceedings
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.
Fugae Warrant
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:
- The payment or settlement of the debt
- The consent of the creditor
- Giving of security as required
- An adjudication of bankruptcy against the debtor or
- on satisfying the Judge that he is without means and that his absence will not materially prejudice the creditor.