Enforcement of Judgments 2022 Comparisons

In The Bahamas, limited tools can be used to identify the asset position of another party pre-action or pre-judgment. For example, public searches can be undertaken in the Registry of Records to ascertain any ownership of real property. A similar search could be made in the Companies Registry to determine the shareholders of companies incorporated under the Companies Act of 1992; however, oftentimes, shares are held by nominee shareholders on behalf of the beneficial owners, thereby preventing the public from determining the true owner of such shares.  

Once a judgment has been granted against a judgment debtor, an Order for Examination can be obtained, which would require the judgment debtor to disclose their assets. Additionally, insolvency or bankruptcy proceedings could be commenced, which would allow a liquidator, receiver or trustee in bankruptcy to take control of a judgment debtor’s affairs to realise and distribute any available assets. 

Once the assets of the judgment debtor are known to exist (or reasonably thought to exist), a party can seek a freezing injunction that would prevent the judgment debtor from using or disposing of the assets.  

A number of domestic judgments can be granted in The Bahamas.  

Once an action has commenced and the Defendant has failed to enter an appearance within fourteen (14) days, the Plaintiff can seek a Judgment in Default of Appearance. This is the earliest possibility for a judgment to be entered against a party. Similarly, if the Defendant does not file a Defence within fourteen (14) days after service of the Statement of Claim, the Plaintiff can enter a Judgment in Default of Defence.  

Throughout the length and breadth of a trial, there are often interlocutory applications, which must be decided before proceeding to trial. For example, there could be questions on discovery, witnesses or other preliminary points of contention. Once the trial has been heard, a final decision can be granted.  

There may also be applications for summary judgment when a party considers that a claim or defence has no real prospects of success which, if successful, would prevent the matter from proceeding to trial. Additionally, applicants could seek declaratory relief, a remedy where parties seek a statement made by the court.  

Mandatory and prohibitory injunctions are also available in our jurisdiction, and the legal principles for granting the same are outlined in the landmark case of American Cyanamid v Ethicon (1975) AC 396. 

Order 45(1) of the Bahamian Rules of the Supreme Court (RSC) outlines various means by which a judgment for the payment of money may be enforced, such as:

• a writ of fieri facias;
• garnishee proceedings;
• a charging order, the appointment of a receiver;
• and/or a writ of sequestration.

In enforcement proceedings, the judgment creditor is the prevailing party to whom a debt is owed, and the judgment debtor is obligated to pay a debt in accordance with the judgment. Additionally, the judgment may be enforced by the sale of land pursuant to the court’s jurisdiction under RSC Order 31(1) if the assets in The Bahamas include land and the court deems it necessary and expedient to order the sale of the land. 

As mentioned above, the following options are available to enforce a domestic judgment: a writ of fieri facias, garnishee proceedings, a charging order, the appointment of a receiver and/or a writ of sequestration. 

If the judgment debtor has a bank account or is actively employed, a garnishee order is likely the fastest and most cost-efficient method to enforce a domestic judgment. A garnishee order allows a judgment creditor to either garnishee a judgment debtor’s bank account or their wages to satisfy an outstanding debt.  

If a charge or lien is placed over the judgment debtor’s assets, the judgment creditor would have to wait until the assets have been sold to realise the funds. Similarly, if a receiver is appointed, there could be considerable time and cost associated with the receiver’s work to identify and realise assets to satisfy the judgment debt.  

After a judgment has been granted, RSC Order 48 allows for an Order for Examination to be obtained. The Order for Examination requires the judgment debtor to attend court for an examination of their debts and assets. The judgment debtor is also required to produce books, bank statements and/or other documents in their possession or power relating to their debts or assets at the time of the examination. The examination takes place before a Registrar of the Supreme Court.   

Additionally, insolvency or bankruptcy proceedings could be commenced that would allow a liquidator, receiver or trustee in bankruptcy to take control of a judgment debtor’s affairs and determine what assets are held by the judgment debtor and where they are located. 

If a party receives a judgment from the Supreme Court (the court of first instance in The Bahamas) with which the party does not agree, it may be challenged by appeal to the Court of Appeal. If the judgment is an interim judgment, leave to appeal must be obtained from the Supreme Court or the Court of Appeal before the appeal can be heard. If the judgment is a final judgment, an appeal is available as of right.  

Frequently, the appellant would also apply to stay the enforcement of the judgment pending appeal pursuant to RSC Order 45, rule 11.  

It is important to note, however, that there are instances where a party could apply to set asidean order or judgment before filing a formal appeal. For example, where a Judgment in Default of Appearance or a Judgment in Default of Defence was entered, the delinquent Defendant could apply to set aside the default judgment. In order to set aside such a judgment, the court must be satisfied that the Defendant has an arguable defence, which carries real conviction and has a realistic prospect of success. If such application is refused, the delinquent Defendant could then appeal.  

Once a judgment has been handed down by a Bahamian court and has not been appealed or set aside, it is enforceable.  

It is important to note, however, that there is a six-year limitation period for bringing an action to recover debts or to enforce a judgment. This means that no action to enforce a judgment or collect a debt may be brought after six years have passed from the date when the judgment became final, or the debt first fell due.  

There is no central register of all judgments; however, judgments of cases held in open court are public documents, which can later be accessed via legal search engines.  

Furthermore, the public can conduct a cause list search at the Supreme Court Registry and view the cause list book and court files to determine if there are any judgments against an individual or entity. A judgment can be marked settled by the judgment creditor in the event that the judgment debt has been settled.  

A judgment obtained outside of The Bahamas has no direct operation in The Bahamas and cannot be immediately enforced in the jurisdiction until it has first been recognised by the Supreme Court.  

The Reciprocal Enforcement of Judgments Act, 1924 (the “REJA”) applies only to judgments obtained in the UK and certain Commonwealth countries such as Australia, Barbados, Belize, Bermuda, British Guiana (Guyana), British Honduras (Belize), Jamaica, Leeward Islands, St Lucia and Trinidad. An application to register a foreign judgment from the aforementioned list of countries can be made to the Supreme Court.  

Where the judgment is obtained in a jurisdiction outside of The Bahamas and is not a jurisdiction enumerated in the REJA, common law requirements will regulate the proceedings for recognition of the judgment. 

Under Bahamian common law principles (as specifically outlined in paragraph 48 of Cramin (as Personal Representative of the Estate of Jeffery D Cramin, deceased) v Bahama Divers (1976) Company Limited and another (2018) 1 BHS J No 161), the requirements to enforce a foreign judgment in The Bahamas are as follows: 

• the foreign court must have been of competent jurisdiction; 
• the rules of natural justice must have been complied with in the foreign proceedings; 
• the foreign judgment must be final and conclusive; 
• the judgment debt must be definite or ascertainable; 
• the foreign judgment must not have been obtained by fraud; and 
• enforcement of the foreign judgment must not be contrary to public policy in The Bahamas. 

The approach to enforcing a foreign judgment in The Bahamas depends on where the foreign judgment was obtained. If the foreign judgment emanated from a country listed in the REJA, the procedure for the registration of the judgment would follow the rules outlined therein. Alternatively, if the foreign judgment was obtained in the country where the REJA is not applicable, the above-mentioned common law principles will apply.  

The following categories will not be enforced:

• a foreign judgment for a sum payable in respect of taxes or like charges or fine or other penalties;  
• an interim judgment; and 
• a foreign judgment in rem determining the title to a foreign immovable (see Thomas Roy Holbird Jr v Jerry Hamel and another (2019) 1 BHS J No 117). 

The process for enforcing a foreign judgment in The Bahamas depends on whether the application is made pursuant to the common law or the REJA. 

Process pursuant to the common law: 

• The proceedings must be commenced by Writ of Summons or counterclaim, relying on the debt owed to the judgment creditor pursuant to the foreign judgment as to the cause of action. The matter is tried like any other civil action commenced by Writ or counterclaim (ie, service, exchange of pleadings, etc).  
• The court will consider the claim and decide whether the debt is owed. 
• If it is found that the debt is owed, a domestic judgment will be given in favour of the judgment creditor. 

Process pursuant to the REJA: 

• An Originating Summons to commence proceedings must be filed within 12 months from the date of the foreign judgment (provided that the court does not exercise its discretion to extend that time). This application seeks leave to have the judgment registered in The Bahamas. This may be an ex-parte application. 
• The Originating Summons must be supported by an affidavit of the facts, exhibiting the foreign judgment sought to be enforced or a certified copy thereof. 
• The Originating Summons must be served on the judgment debtor (unless the court otherwise directs). 
• Where the court makes an order granting leave for the judgment to be registered, the order is drawn up by the Registrar or Deputy Registrar and states the time within which the judgment debtor is entitled to apply to set aside the registration. If the application was by Summons, it must be served on the judgment debtor. If the application was ex parte, no service is necessary. 
• Where the judgment debtor fails to set aside the registration, the judgment is registered, and notice of same must be served on the judgment debtor. 
• The notice must state that the judgment debtor is entitled to apply to set aside the registration if the judgment debtor has grounds for so doing and stipulates a time frame within which the judgment debtor may apply by summons to have the registration set aside. 
• After the expiration of the time limited by the order giving leave to register the judgment, the judgment creditor may seek to execute (enforce) the judgment. 
• On application to enforce the judgment, the judgment creditor must produce an Affidavit of Service of the notice of registration and the warrant of execution.  

Enforcement

Whether the foreign judgment is recognised pursuant to the REJA or under the common law, it is enforceable by the same means available for the enforcement of a Bahamian judgment [see 2.2 Enforcement of Domestic Judgments]. This procedure would involve the filing and serving of a summons and supporting affidavit to apply for the most suitable enforcement method, the filing and serving of any requisite notices and a hearing for the court to determine whether or not the judgment can/should be enforced in that manner. 

The typical costs involved and the length of time it takes to enforce a foreign judgment depend on a number of factors, including but not limited to:

• counsel’s fee rate;
• whether the enforcement is sought pursuant to the REJA or under common law principles;
• the complexity of the matter, whether or not the application is opposed;
• the mode of enforcement selected and the court’s calendar.

It is, therefore, difficult, if not impossible, to estimate with any certainty the costs or length of time involved. In the most straightforward case where a party is seeking enforcement pursuant to the REJA, which is uncontested, the matter will be resolved in a shorter time frame and with less expense, than enforcement sought pursuant to common law principles, which is highly contested and/or where there is great difficulty in identifying assets within the jurisdiction or otherwise in establishing jurisdiction over the judgment debtor. Notably, the shortly to be promulgated new Civil Procedure Rules seek to implement procedures which will improve the overall cost and efficiency of litigation in The Bahamas. 

The grounds for challenging enforcement include the following: 

• the foreign judgment is not final and conclusive; 
• the foreign court acted without jurisdiction; 
• the judgment debtor did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of the foreign court; 
• the judgment debtor was not duly served in the foreign court and did not appear; 
• the judgment was obtained by fraud; 
• there is an appeal pending, or the judgment debtor is entitled to or intends to appeal; 
• the judgment is based on a cause of action which would not have been entertained by the Bahamian court for reasons of public policy or similar reasons; 
• the judgment is not for a sum of money; 
• the application by the judgment creditor was made out of time (12 months after the date of the foreign judgment);  
• if the application is made under the REJA, the judgment is not from a superior court in one of the jurisdictions listed in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments; and 
• it is not just and convenient for the judgment to be enforced in The Bahamas. 

The Bahamas is a signatory to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) and has given domestic effect to the New York Convention through the Arbitration (Foreign Arbitral Awards) Act, 2009 (the “2009 Act”). Pursuant to Sections 4 and 88 of the Arbitration Act, 2009,any arbitration award made pursuant to an arbitration agreement is enforceable in The Bahamas, with the leave of the court, in the same manner as a judgment or order [see 2.2 Enforcement of Domestic Judgments]. Enforcement may only be refused under the terms provided in the 2009 Act as set out in 4.6 Challenging Enforcement of Arbitral Awards. 

There is no difference in The Bahamas between the enforcement of a domestic and foreign arbitral award. 

There are no express categories of awards that will not be enforced. The approach is that all awards are binding, but the enforceability is determined by the application of the 2009 Act.  

The process for enforcing an arbitral award in The Bahamas involves filing and serving an Originating Summons, supported by an affidavit, which exhibits the authenticated award or a certified copy thereof, the original arbitration agreement or a certified copy thereof and translations if those documents are not in English. There will be an inter partes hearing of the matter (see Therapy Beach Club Incorporated v RAV Bahamas Limited and another (2018) 1 BHS J No 46). 

The typical costs involved and the length of time it takes to enforce an arbitral award depend on a number of factors, including but not limited to:

• counsel’s fee rate;
• the complexity of the matter;
• whether or not the application is opposed;
• the mode of enforcement selected; and
• the court’s calendar.

It is, therefore, difficult, if not impossible, to estimate with any certainty the costs or length of time involved. Where the enforcement of the arbitral award is uncontested and the procedural requirements of the 2009 Act are satisfied, the costs and length of time would be significantly less than where the enforcement is highly contested. Notably, the shortly to be promulgated new Civil Procedure Rules seek to implement procedures that will improve the overall cost and efficiency of litigation in The Bahamas. 

Sections 5 and 6 of the 2009 Act provide the following grounds for a challenge: 

• A procedural challenge if the party seeking enforcement does not provide the authenticated award or a certified copy thereof, the original or a certified copy of the arbitration agreement and a translation of both documents where either is not in English. 
• The person against whom enforcement is sought can prove that: 
1. a party to the arbitration agreement is under some incapacity under laws applicable to that party; 
2. the arbitration agreement was not valid under the relevant law; 
3. no proper notice was given for the appointment of the arbitrator, or of the proceedings or the person was otherwise unable to present the case; 
4. the award deals with issues not contemplated by or beyond the scope of the arbitration agreement; 
5. the tribunal composition or arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, with the law of the state where the arbitration took place; or 
6. the award is not yet binding or has been set aside or suspended by a competent authority. 
• The award is in respect of a matter that is not capable of settlement by arbitration or is contrary to public policy. 
• The action to enforce the award was not commenced within 12 months from the date of the award.