The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in England. The appeals also raise the question whether enforcement may be effected through the international assistance provisions of the UNCITRAL Model Law (implemented by the Cross-Border Insolvency Regulations 2006 . . which applies generally, or the assistance provisions of section 426 of the Insolvency Act 1986, which applies to a limited number of countries, including Australia.’
Held: In Rubin, the appeal succeeded (Lord Clarke dissenting); there should not be special rules for avoidance judgments. The appeal in New Cap failed, since the Syndicate had submitted to the Australian jurisdiction.
A court in one jurisdiction may give a judgment in personam which is a proper basis for recognition and enforcement where the defendant (i) was present in the foreign court when the proceedings were instituted; or (ii) was a claimant, or had counterclaimed, in the foreign proceedings; or (iii) submitted to the jurisdiction of that foreign court by voluntarily appearing in the proceedings; or (iv) had agreed to submit to the jurisdiction of the foreign court before the proceedings began.
However the interests of univeraslity of insolvency were not sufficient to give them more liberal enforcement than in other matters, since this would inevitably lead to further complications. Any change would require parliamentary action.
Lord Walker, Lord Mance, Lord Clarke, Lord Sumption, Lord Collins
[2012] UKSC 46, [2012] 3 WLR 1019, [2012] 2 Lloyd’s Rep 615, [2012] WLR(D) 285, [2012] 2 BCLC 682, UKSC 2010/0184, [2013] Bus LR 1, [2013] BCC 1, [2013] 1 All ER 521, [2012] BPIR 1204, [2013] 1 All ER (Comm) 513, [2013] 1 AC 236
Bailii, Bailii Summary, SC Summary, SC, WLRD
Insolvency Act 1986 426, Cross-Border Insolvency Regulations 2006
England and Wales
Citing:
Cited – Williams v Jones 22-Jan-1845
An action of debt lies upon a judgment of a county court. And the declaration need not state that the defendant resided within the jurisdiction of the county court, or was liable to be summoned to that court for the debt ; it is enough to state that . .
Cited – Godard v Gray 1870
A judgment in personam of a foreign court of competent jurisdiction cannot be questioned by the parties on the merits when recognition or enforcement of the judgment is sought in England, notwithstanding that it may have been wrong either in fact or . .
Cited – Solomons v Ross 1764
A firm in Amsterdam was declared bankrupt and assignees were appointed. An English creditor brought garnishee proceedings in London to attach andpound;1200 owing to the Dutch firm.
Held: The court decreed that the bankruptcy had vested all the . .
Cited – Galbraith v Grimshaw and Baxter HL 2-Jan-1910
Where a Scottish sequestration occurred shortly after an English garnishee order nisi, the judgment creditor prevailed over the trustee in bankruptcy, although the result would have been different if both the attachment and the bankruptcy had . .
Cited – Adams v Cape Industries plc CA 2-Jan-1990
Proper Use of Corporate Entity to Protect Owner
The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in . .
At First Instance – In re New Cap Reinsurance Corporation Ltd ChD 15-Mar-2011
. .
Appeal from – New Cap Reinsurance Corporation Ltd and Another v Grant and Others CA 9-Aug-2011
The court was asked whether Mr Gibbons, liquidator of New Cap Reinsurance Corporation Ltd (New Cap), could enforce in England an order which provided, among other things, for the payment of sums of money by the Defendants to New Cap, which he . .
At First Instance – Rubin and Another v Eurofinance Sa and Others ChD 31-Jul-2009
. .
Cited – Owens Bank Ltd v Bracco and Another (No2) HL 17-Jun-1992
The bank had obtained judgment in St Vincent to recover a loan. It now sought to register the judgment here for enforcement. The defendant wanted to argue that the judgment had been obtained by fraud, and to resist registration of the judgment. The . .
Cited – Galbraith v Grimshaw and Baxter CA 1910
A garnishee order nisi does not operate as a transfer of the property in the debt, but it is an equitable charge on it, and the garnishee cannot pay the debt to any one but the garnishor without incurring the risk of having to pay it over again to . .
Cited by:
Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Insolvency, International
Leading Case
Updated: 02 November 2021; Ref: scu.465185