Enforcement of Foreign Judgments and Interim Orders - Part 2 (Enforcement of Foreign Judgments)

In August 2011, the Law Reform Commission (“the Commission”) commenced a review of the law governing the enforcement of foreign judgments at the request of the Honourable Chief Justice, Sir Anthony Smellie, who observed that foreign judgment creditors were still required to re-sue at common
law. He queried whether the time had come to modernise the law and remove this outdated requirement. This project formed Part 2 of the Commission’s wider review of the Enforcement of Foreign Judgments and Interim Orders. Part 1 examined the enforcement of interim orders in aid of foreign proceedings.

The review examined:

• the process by which judgments of the Cayman Islands Grand Court are enforced in the United Kingdom;
• the process by which judgments of the United Kingdom’s superior courts are enforced in the Cayman Islands;
• the enforcement of foreign superior court non-monetary judgments in the Cayman Islands; and
• the facilitation of foreign interim orders in the Cayman Islands.

On 6th March 2012, the Commission published an Issues Paper titled “The Enforcement of Foreign Judgments and Interim Orders” for public consultation. The Paper examined the enforcement of foreign judgments generally and noted that the rules and processes governing enforcement were regulated by
common law, statute, bilateral treaties, and multilateral international conventions.

The consultation period initially ran from 6th March, 2012 to 26th March, 2012, but was extended twice, ultimately concluding on 30th April, 2012. The Commission received submissions from Justice Creswell, a joint committee of the Cayman Islands Law Society and the Cayman Islands Bar Association and
Bermudian attorney, Mr. Alex Potts.

Following its review of the submissions, the Commission submitted its Final Report titled “The Enforcement of Foreign Judgments and Interim Orders Part 2: The Enforcement of Foreign Judgments” to the Honourable Attorney General on 8th March 2013. The Commission recommended simplifying and modernising the enforcement of foreign judgments through registration, eliminating the reciprocity requirement and aligning Cayman Islands law with common law principles. It also proposed empowering the Grand Court, rather than the Governor in Cabinet, to register foreign superior court judgments.

The Report was supported by the draft Foreign Judgments Reciprocal Enforcement (Amendment) Bill 2013 and the draft Foreign Judgments Reciprocal Enforcement (Scheduled Countries and Territories) Order, 2013. The proposed Foreign Judgments Reciprocal Enforcement (Amendment) Bill 2012 sought to remove the requirement for reciprocity in determining which foreign superior court judgments may be enforced in the Cayman Islands. This would align Cayman Islands law with the common law, under which reciprocity is not a prerequisite for enforcement of a foreign judgment.

The proposed Foreign Judgments Reciprocal Enforcement (Scheduled Countries and Territories) Order, 2013 sought to extend the application of Part II of the Foreign Judgments Reciprocal Enforcement Law (1996 Revision) so that judgments from the following jurisdictions be made enforceable by registration
in the Cayman Islands – the Bahamas, Bermuda, British Virgin Islands, Canada, Guernsey, Isle of Man, Jersey, New Zealand, Republic of Ireland, Singapore, and the United Kingdom.

These draft legislative proposals have not yet been enacted or brought into force.