UK: Enforcing Foreign Judgments In Mauritius Delivered By A Superior Court Of The United Kingdom

Until the decision of the Mauritius Supreme Court in Sumputh v Holborn College Limited 2012 SCJ 193 (Sumputh), it was understood that a judgment creditor which sought to enforce a judgment delivered by a superior court of the United Kingdom could avail itself of any of the following three pieces of legislation namely:

• the Foreign Judgments (Reciprocal Enforcement) Act 1961 (1961 Act); or
• the Reciprocal Enforcement of Judgments Act 1923 (1923 Act); or
• article 546 of the Mauritian Code of Civil Procedure ("exequatur" proceedings).

In Sumputh (supra), the Supreme Court, sitting in its first instance jurisdiction, heard and granted an application that was based on the 1961 Act to enforce a judgment delivered by the Queen's Bench Division of the High Court of England (Queen's Bench Division).

However, on appeal, the Supreme Court, sitting in its appellate jurisdiction as the Court of Civil Appeal, quashed the judgment delivered in first instance and held that:

• the 1961 Act had not yet come in force for want of proclamation1 towards this end;
• the Supreme Court as the Court of Civil Appeal had the necessary discretion to consider the application as having been made under the 1923 Act; and
• an application for the enforcement of a judgment of the Queen's Bench Division could only be made under the 1923 Act and not under the 1961 Act.

Applying the terms of the 1923 Act to the facts of Sumputh (supra), the Supreme Court, sitting as the Court of Civil Appeal, held that the terms of the 1923 Act had not been satisfied because (i) the Respondent had actually challenged the jurisdiction of the Queen's Bench Division and had refused to submit to its jurisdiction and (ii) the Respondent had applied to set aside the judgment delivered against her in default. The decision of the Supreme Court at first instance wherein the order for enforcement was granted was therefore reversed.

The 1923 Act

Under the 1923 Act, a judgment obtained in the superior courts of England and Wales will be enforced by the Supreme Court without re-examination of the merits of the case provided that:

• the judgment was obtained in a superior court in the United Kingdom;
• the superior court in the United Kingdom had the requisite jurisdiction;
• the judgment was not obtained by fraud;
• the judgment debtor, being the defendant in the proceedings, was duly served with the process of the original court and either voluntarily appeared or submitted to or agreed to submit to the jurisdiction of that court;
• the judgment debtor, being a person who was either carrying on business or ordinarily resident within the jurisdiction of the original court either voluntarily appeared or otherwise submitted or agreed to submit to the jurisdiction of the court;
• the application for enforcement is made to the Supreme Court within a period of 12 months after the date of the judgment unless a longer period is granted by the Supreme Court;
• the judgment is final and conclusive, notwithstanding that an appeal may be pending against it or it may still be subject to an appeal in the United Kingdom;
• the judgment has not been given on appeal from a court which is not a superior court; and
• the judgment is duly registered in the Supreme Court in circumstances in which its registration is not liable thereafter to be set aside.

Article 546 of the Mauritian Code de Procédure Civile

Article 546 of the Code de Procédure Civile is enabling in nature inasmuch as it does not actually set out the conditions that are to be fulfilled for an application for "exéquatur". However, the Supreme Court has developed these conditions and, based on the latest pronouncement of the Supreme Court namely in S.A. Epson France v Société Intervenant Technologie Ltd 2012 SCJ 114, a final and conclusive judgment of a foreign court in respect to the sum of money (not being a sum of money payable in respect of taxes or other charges of like nature, in respect of a fine or other penalty, or in respect of multiple damages) can be enforced by the Supreme Court without reexamination of the merits of the case provided that the following criteria are satisfied namely:

a) the judgment must still be valid and capable of execution in the country where it was delivered;

b) it must not be contrary to any principle affecting public order;

c) the defendant must have been regularly summoned to attend the proceedings; and

d) the court which delivered the judgment must have had jurisdiction to deal with the matter submitted to it.

From a review of the above, clearly the 1923 Act is wider in its application and is more specific than Article 546 of the Mauritian Code of Civil Procedure. First, there is a requirement that the application for enforcement is lodged with the Supreme Court within a period of 12 months that the foreign judgment was delivered. Secondly, there is the element of voluntary appearance or submission to the jurisdiction to the foreign court on the part of the judgment debtor. Thirdly, there is the further requirement that the judgment debtor was either carrying on business or ordinarily resident within the jurisdiction of the foreign court.

In Dallah Albaraka (Ireland) Ltd v Pentasoft Technologies Limited and anor (Dallah Albaraka) in which Appleby appeared for the Applicant, the Supreme Court, sitting in its first instance jurisdiction, assessed the concurrence of the 1923 Act and article 546 of the Mauritian Code of Civil Procedure. It refined the principle established in Sumputh (supra).

In Dallah Albaraka 2012 SCJ 463 (supra), an application was lodged under article 546 of the Mauritian Code of Civil Procedure to enforce a judgment of the Queen's Bench Division. A preliminary point of law was raised by the Respondent and the Co-Respondent to the effect that the application was flawed as a matter of law because there was a specific piece of legislation namely, the 1923 Act, which was in place for the purposes of enforcing a judgment delivered by a superior court of England and Wales. It was contended that the failure by the Applicant to have seized the Supreme Court under the 1923 Act was fatal to the application which therefore had to be set aside.

In an Interlocutory Judgment, the Supreme Court distinguished Sumputh (supra) and held that the focus in Sumputh was not a determination as to which of the existing three pieces of legislation namely the 1923 Act, the 1961 Act and section 546 of the Mauritian Code of Civil Procedure was the appropriate legislation in order to enforce a judgment of the Queen's Bench Division. Rather, the issue was whether it was the 1961 Act or the 1923 Act that was applicable for the enforcement of a judgment of the Queen's Bench Division because both pieces of legislation appeared to be in force. It followed that the principle established in Sumputh had to be distinguished in Dallah Albaraka.

In Dallah Albaraka, the Supreme Court held that section 546 of the Mauritian Code of Civil Procedure and the 1923 Act were not mutually exclusive. Accordingly, it was open to a judgment creditor seeking to enforce a judgment of the Queen's Bench Division to elect whether to resort to the 1923 Act or section 546 of the Mauritian Code of Civil Procedure.

Overall therefore, the net effect of the decisions of Sumputh and Dallah Albaraka is that the 1961 Act is not yet proclaimed. Accordingly, between the 1961 Act and the 1923 Act, it is the 1923 Act which is the relevant piece of legislation for the enforcement of a judgment of a superior court of England and Wales. However and notwithstanding the foregoing, in view of the language of the 1923 Act and the prevalence of section 546 of the Mauritian Code of Civil Procedure, these pieces of legislation are not mutually exclusive.

It follows then that an application for the enforcement of a judgment delivered by a superior court of England and Wales may be lodged under either of section 546 of the Mauritian Code of Civil Procedure or the 1923 Act.

Appleby appeared for Dallah Albaraka (Ireland) Ltd - Sharmilla Bhima (Senior Associate) was counsel for the Applicant.

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