BERMUDA Law and Practice Contributed by: Michael Hanson, Keith Robinson, Sam Stevens and Kyle Masters, Carey Olsen Bermuda Limited
9.5 Enforcement of a Judgment From a Foreign Country Foreign Judgments under the Judgments (Reciprocal Enforcement) Act 1958 The Judgments (Reciprocal Enforcement) Act 1958 allows judgments for the payment of mon- ey from the superior courts of the UK and many other Commonwealth countries to be enforced in Bermuda by registration of the judgment in the Supreme Court at any time within six years after the date of the judgment. The process of registration is straightforward. An application is made to a judge supported by an affidavit exhibiting the foreign judgment (or a certified copy of it), wherein the affiant confirms: • their belief that the judgment is one to which the 1958 Act applies; • that there was no fraud practised on the court to obtain the judgment; • that the person seeking registration is the person in whom the rights under the foreign judgment are vested; • that the defendant received notice of the foreign proceedings giving rise to the judg- ment; and • that the foreign court had the jurisdiction to make the judgment it did. Foreign Judgments outside the Judgments (Reciprocal Enforcement) Act 1958 A foreign judgment that does not fall within the 1958 Act can be enforced in Bermuda at com- mon law. Formal pleadings must be filed in the Supreme Court. The debt obligation created by the foreign judgment can form the basis of a cause of action. However, there is no require- ment for the creditor to re-litigate the underlying claim that gave rise to the foreign judgment.
Garnishee Application The garnishment of third-party debts owed to a judgment debtor is a well-recognised enforce- ment procedure in Bermuda. A garnishee order will only be granted in respect of a debt that is due or accruing due to a judgment debtor as at the date a final garnishee order is granted – future debts cannot be garnished. A garnishee order creates an equitable charge over the third- party debt (rather than an express transfer of the property in the debt to the judgment creditor) and binds the debt in the hands of the named It is possible to apply to court to appoint a receiv- er by way of equitable execution to enforce a money judgment. A court-appointed receiver is a discretionary remedy that is generally only avail- able where execution at common law is either prevented or is impracticable. In modern times, the court has followed the practice in many oth- er common law jurisdictions and incrementally expanded the jurisdiction in line with established principles. There are many advantages to the appointment of a receiver by way of equitable execution, which is a remedy inherently capable of great flexibility. For example, unlike a garnish- ee order a receiver by way of equitable execu- tion can be appointed by the court to collect future receipts from a defined asset belonging to the judgment debtor. Importantly, a receiver by way of equitable execution is an officer of the court, not an agent of the judgment creditor that sought their appointment (though in practice the appointed receiver will usually look to work in collaboration with the judgment creditor in order to fulfil their mandate). garnishee. Receivers
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