[2009]JRC034
royal court
(Samedi Division)
25th February 2009
Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Breton and Le Cornu. |
Between |
Craig James Elder |
Plaintiff |
And |
David Williams Stock |
Defendant |
Advocate M. L. Preston for the Plaintiff.
The Defendant appeared in person.
judgment
the COMMISSIONER:
1. On the 25th September, 2008, the Court enforced a judgment made by the Princely Court of Justice of the principality of Lichtenstein ("the Lichtenstein Court"), by granting the plaintiff judgment against the defendant in the sum of £41,288.73, together with interest on that sum from the 8th October, 2005, to the date of payment at the Court rate. The Court now sets out its reasons.
Background
2. A dispute between the parties, who both reside in England, resulted in the plaintiff in February 2000, obtaining a worldwide freezing order against the defendant, prohibiting the disposal of his assets. Part of the dispute related to withdrawals made by the defendant from a bank account of the plaintiff in Lichtenstein, where the plaintiff had also issued proceedings.
3. On the 1st November, 2002, the English proceedings were stayed and the freezing order dismissed upon the defendant undertaking:-
(i) Not to dispose of, deal with, diminish, or remove or cause to be removed, any money in his account in Jersey with Lloyds TSB (Jersey) Limited ("Lloyds").
(ii) Not to apply to be released from this undertaking until the final determination of the proceedings brought by the plaintiff against the defendant in Lichtenstein.
Costs were reserved.
4. The proceedings before the Lichtenstein Court were finally determined at a hearing on the 7th October, 2005, by way of a Judicial Settlement under which the defendant agreed to pay the plaintiff, on pain of enforcement, the sum of £50,500 in the following manner:-
(i) By transferring sums held by the defendant in a bank account he held with Neue Bank AG in Lichtenstein to the plaintiff.
(ii) By paying the outstanding balance of £41,288.73 on his account with Lloyds to the plaintiff.
5. The Judicial Settlement further provided that the defendant thereby issued Lloyds with an instruction to carry out the transfer and issued the plaintiff power of attorney to implement those instructions. By those instructions the parties were deemed to have resolved and settled all claims of any kind between them.
6. The transfer of the funds in Neue Bank was completed that day but regrettably the defendant then wrote to Lloyds instructing it formally that he did not consent to the transfer of any monies out of his account to the plaintiff. Not surprisingly Lloyds refused to make the transfer when requested by the plaintiff so to do. The monies held with Lloyds have subsequently been paid into Court pursuant to an order of the Master of the Royal Court dated 7th November, 2007.
7. In his answer filed with the Court, the defendant acknowledged the Judicial Settlement reached before the Lichtenstein Courts, but argued that the effect of the Judicial Settlement was to refer the matter back to the English Court which had imposed the worldwide freezing order, in respect of which he made a number of counter-claims, totalling some £241,550.76. He further argued that the plaintiff had no locus standi in the Lichtenstein or Jersey proceedings because he had been convicted in February 1998, for VAT evasion, been sentenced to 30 months' imprisonment, and had been the subject of a bankruptcy order before the High Court on the 20th July, 1993.
8. It is clear from the Lichtenstein Court documentation that it was well aware of the plaintiff's English bankruptcy. The official receiver had not applied to have his appointment recognised in Lichtenstein but had written to the lawyers acting for the plaintiff asking them to note his interest in any amounts found to be payable to the plaintiff under the Lichtenstein proceedings. No application has been made by the official receiver to have his appointment recognised in Jersey in respect of bankruptcy proceedings which are now some 15 years old. We were satisfied that the plaintiff had locus standi.
9. There was nothing in the Judicial Settlement reached in Lichtenstein, to support the defendant's assertion that its effect was to refer the matter back to the English Court; indeed it manifestly did not do so. If the defendant has counter-claims against the plaintiff in relation to the English proceedings, those claims should be pursued before the English Court and we therefore declined to entertain the same. The only issue before us was whether we should recognise the Judicial Settlement issuing out of the Lichtenstein Court.
Judicial Settlement
10. The Courts in Jersey have consistently had regard to English common law and in particular to the rules in Dicey in relation to private international law (see Murbarik v Murbarak and Others [2008] JRC 136 and Brunei and Bandone v Fidelis and Others [2008] JRC 152).The plaintiff therefore relied on Rule 35(1) of Dicey, Morris and Collins on The Conflict of Laws 14th Edition:-
"(1) Subject to the Exceptions hereinafter mentioned and to Rule 55 (international conventions), a foreign judgment in personam given by the court of a foreign country with jurisdiction to give that judgment in accordance with the principles set out in Rules 36 to 39, and which is not impeachable under any of Rules 42 to 45, may be enforced by a claim or counterclaim for the amount due under it if the judgment is
(a) for a debt, or definite sum of money (not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty); and
(b) final and conclusive,
but not otherwise.
Provided that a foreign judgment may be final and conclusive, though it is subject to an appeal, and though and appeal against it is actually pending in the foreign country where it was given."
11. The Judicial Settlement was for a debt or definitive sum of money and was final and conclusive. The defendant had submitted to its jurisdiction by voluntarily appearing in those proceedings thus the Lichtenstein Court had jurisdiction to give the Judicial Settlement in accordance with the principles set out in Rules 36 to 39 of Dicey and it was not impeachable under any of the Rules 42 to 45.
12. Is a Judicial Settlement a judgment for the purposes of Rule 35(1) of Dicey? The plaintiff called Ivan Brueschweiler of the Lichtenstein firm of lawyers, Ospelt & Partner Attorneys at Law Limited to give expert evidence. Mr Brueschweiler qualified as a Swiss lawyer in 2001 and has been working in Lichtenstein since October of that year. Under Lichtenstein Law he is, as a qualified Swiss lawyer, entitled to fulfil the function of a so-called "substitutionsberechtiger Konzipient" of his law firm which entitles him to represent or "substitute" his law firm on behalf of clients in the Lichtenstein Courts. He represented the plaintiff in the proceedings which lead to the Judicial Settlement and has been practicing generally in the Courts of both Lichtenstein and Switzerland since 2001. We were satisfied that he was sufficiently qualified to give us expert evidence on the status of the Judicial Settlement under Lichtenstein Law.
13. There were a number of hearings in relation to the Lichtenstein proceedings involving inter alia the taking of evidence by examination of witnesses before the Courts in London. We were shown a transcript of the hearing on the 7th October, 2001, which concluded with the Judicial Settlement signed by the presiding judge, the parties, their legal representatives and the equivalent of our Judicial Greffier. Mr Brueschweiler advised that the effect of the Judicial Settlement was to terminate the Court proceedings in the Princely Court of Justice with legal and binding effect. Neither party can re-litigate the matter. In Lichtenstein such a settlement has the same effect as a judgment made by the Court, where the Court will grant the respective execution of the obligations entered into by the parties in the Judicial Settlement upon the request of either of the parties without further formality. He expressed the opinion that the Judicial Settlement, concluded on the 7th October, 2005, has the status of a judgment from a Court of competent jurisdiction.
14. We accepted the evidence of Mr Brueschweiler and concluded that the Judicial Settlement was a judgment for the purposes of Rule 35(1) of Dicey. The Judicial Settlement imposes upon the defendant a duty or obligation to pay the sum for which the judgment was given, which the Courts of this Island are bound to enforce (see Schibsby v Westenholz (1870) LR 6 QB 155 and Adam v Cape Industries Plc (1990) Ch 433).
15. In essence this was a simple case of a defendant concluding a final settlement in proceedings in Lichtenstein under which he was obliged to pay a definitive sum to the plaintiff which, for no legitimate reason, he subsequently sought to countermand through his bank in Jersey. We had no hesitation in requiring the defendant to meet those obligations. The counterclaims were dismissed.
Authorities
Dicey, Morris and Collins on The Conflict of Laws 14th Edition.
Schibsby v Westenholz (1870) LR 6 QB 155.
Adam v Cape Industries Plc (1990) Ch 433.