Yearwood v Yearwood
| Jurisdiction | UK Non-devolved |
| Judge | Lady Black |
| Judgment Date | 19 October 2020 |
| Neutral Citation | [2020] UKPC 26 |
| Docket Number | Privy Council Appeal No 0041 of 2019 |
| Court | Privy Council |
| Date | 19 October 2020 |
[2020] UKPC 26
Lord Kerr
Lady Black
Lord Briggs
Lord Sales
Lord Leggatt
Privy Council Appeal No 0041 of 2019
Michaelmas Term
From the Court of Appeal of the Eastern Caribbean Supreme Court
Appellant
David Joseph QC
Hugh Marshal
(Instructed by Marshall & Co (Antigua))
Respondent
David Dorsett PhD
(Instructed by Watt, Dorsett & Co (Antigua))
Heard on 24 June 2020
The parties in this appeal were divorced in 2009 but, following the practice adopted by the courts in Antigua and Barbuda, the Board will refer to them as the husband (who is the appellant) and the wife (who is the respondent).
The wife sought financial remedies regulating the family's finances in the aftermath of the divorce. The financial remedy proceedings were determined, in December 2009, by Philip Moor QC, sitting as a Deputy High Court Judge in the Family Division of the High Court in England and Wales. The detailed order that he made in the wife's favour included provision for the transfer of certain property by the husband to the wife, and for the payment by him of a lump sum of just over £4 million. There followed proceedings by the wife seeking to enforce the payment of the lump sum outstanding under that order, and also an associated costs order. The Board will come to the detail in due course, but it is enough to say, by way of introduction, that she sought to do this, inter alia, by registering English orders in Antigua and Barbuda under the Reciprocal Enforcement of Judgments Act Cap 369 (“the Act”). This appeal is against the orders that she obtained for that registration. It requires the Board to consider the operation of the Act, and of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000 (“CPR”), in relation to orders made in financial remedy proceedings.
Following the making of the December 2009 order, Philip Moor QC made a further order on 10 May 2010. This order, which was made without notice to the husband, provided that he “must pay to the [wife] immediately the sum £3,144,456.80”. As appears from the accompanying order of the same date, this was the figure still due under the December 2009 order, in particular pursuant to the lump sum provision. The wife was permitted to register the order in the High Court of Antigua and Barbuda, but the Honourable Mr Justice Mario Michel set the registration aside in December 2011. The Board will need to look in a little more detail later at his reasons for so doing, but in essence they were two-fold. First, section 3(2)(c) of the Act provides that no judgment shall be ordered to be registered if the judgment debtor was not duly served with process of the original court (that is the court by which the judgment in question was given) and did not appear. The May 2010 order fell foul of this because it was made without notice to the husband. Secondly, the order which the wife sought to register had been made in family proceedings and therefore could not “be registered under Part 72 of the CPR” because that did not apply to family proceedings by virtue of Rule 2.2 of the CPR.
On 9 July 2012, Philip Moor QC (by now Mr Justice Moor) discharged his order of 10 May 2010 and made a further order (referred to in the contemporaneous documentation as a “money judgment order”), the application having been made this time on notice to the husband. This order will be referred to hereafter as “the money judgment order” or “the July 2012 order”. As before, the order set out the figure standing due under the December 2009 order, by now £1,882,851, and provided that this was to be paid immediately. In June 2013, the wife applied to the High Court of Antigua and Barbuda for the July 2012 order to be registered. She also applied, at the same time, for the registration of a costs order (“the costs order”) relating to the financial remedy proceedings, the Senior Court Costs Office, on 12 November 2010, having issued a default costs certificate, requiring the husband to pay within 14 days the sum of £592,602.33, with interest running from 7 December 2009. The husband responded with an application for a declaration that the wife was not entitled to register the orders.
The matter came before the Honourable Madame Justice Clare Henry who, in 2015, granted the wife's application for registration of the July 2012 order, but refused the registration of the costs order, on the basis that the application had been made out of time.
Both parties appealed to the Court of Appeal. The wife was wholly successful in that appeal, in that the Court of Appeal affirmed the registration of the July 2012 order and permitted the registration of the costs order. It is from the Court of Appeal's order of November 2017 that the husband appeals to the Board.
The Board can crystallise the issues which require determination into four main questions. These have been formulated taking into account that it is common ground between the parties that the wife's application for registration is properly characterised as “family proceedings” for the purposes of the CPR, although, as will appear later, the Board would sound a cautionary note as to the validity of this approach. With that caveat, broadly stated, the four questions are:
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(1) Should the wife's application have been dismissed on the grounds of issue estoppel and/or abuse of process on the basis that the matter had already been conclusively decided by Michel J in December 2011?
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(2) In principle, can the orders be registered under the Act, notwithstanding that the procedure set out in Part 72 of the CPR does not apply to the wife's application because the CPR do not apply to family proceedings?
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(3) Are the orders outside the scope of the Act in any event, on the basis that neither qualifies as a “judgment” (as defined in section 2(1) of the Act) for the purposes of section 3 of the Act? This question turns on the particular attributes of the orders, emanating as they do from financial remedy proceedings.
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(4) Did the Court of Appeal err in permitting the registration of the costs order after the expiry of twelve months from the date of the judgment, see section 3(1) of the Act?
The following provisions of the Act require particular attention:
“ 2. (1) In this Act—
“judgment” means any judgment or order given or made by a Court in any civil proceedings, whether before or after the passing of this Act, whereby any sum of money is made payable, and includes an award in proceedings on an arbitration if the award has in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a Court in that place; …
(2) Subject to rules of Court, any of the powers conferred by this Act on any Court may be exercised by a Judge of the Court.
3. (1) Where a judgment has been obtained in the High Court in England or Northern Ireland or in the Court of Session in Scotland the judgment creditor may apply to the High Court at any time within twelve months after the date of the judgment or such longer period as may be allowed by the Court to have the judgment registered in the High Court and on any such application the Court may, if in all the circumstances of the case they think it is just and convenient that the judgment should be enforced in Antigua and Barbuda, and subject to the provisions of this section, order the judgment to be registered accordingly.
(2) No judgment shall be ordered to be registered under this section if —
…
(c) The judgment debtor being the defendant in the proceedings, was not duly served with the process of the original Court and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that Court or agreed to submit to the jurisdiction of that Court; or
…
(3) Where a judgment is registered under this section —
(a) The judgment shall, as from the date of registration, be of the same force and effect, and proceedings may be taken thereon, as if it had been a judgment originally obtained or entered up on the date of registration in the High Court;
(b) The High Court shall have the same control and jurisdiction over the judgment as it has over similar judgments given by itself, but in so far only as relates to execution under this section;
(c) The reasonable costs of and incidental to the registration of the judgment (including the costs of obtaining a certified copy thereof from the original Court and of the application for registration) shall be recoverable in like manner as if they were sums payable under the judgment.
(4) Rules of Court shall provide —
(a) For service on the judgment debtor of notice of the registration of a judgment under this section, and
(b) For enabling the High Court on an application by the judgment debtor to set aside the registration of a judgment under this section on such terms as the Court thinks fit; and
(c) For suspending the execution of a judgment registered under this section until the expiration of the period during which the judgment debtor may apply to have the registration set aside.
…”
“ 5. Provision may be made by rules of Court for regulating the practice and procedure (including scales of fees and evidence), in respect of proceedings of any kind under this Act.”
Turning to the CPR, Rule 2.2 sets out the proceedings to which they apply. As material, it provides:
“2.2 (1) Subject to paragraph (3), these Rules apply to all civil proceedings in the Eastern Caribbean Supreme Court in any of the Member States or Territories.
(2) …
(3) These Rules do not apply to the following–
(a) family proceedings; …”
Part 72 of the Rules deals with reciprocal enforcement of judgments. It...
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