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JUDGMENT
INTRODUCTION
[1] The parties to these proceedings were married to each other for 28 years
before Mrs Reid filed for divorce in the USA. The couple had been resident
there for a considerable length of time. Judge Sweeney, a judge of the
Probate and Family Court of the Commonwealth of Massachusetts, heard the
spouses and their legal representatives over a four day trial. He granted
the divorce and made an order dividing the marital assets.
[2] Both sides were dissatisfied with the order. Mr Reid appealed to the
Appeals Court of the Commonwealth. Mrs Reid cross-appealed. In a judgment to
which we shall return, the judges of the Appeals Court substantially
reversed Judge Sweeney and remanded the case back to him for further
proceedings consistent with directions given by them in their judgment.
[3] Judge Sweeney conducted further hearings, this time in the absence of Mr
Reid and his legal representatives. The judge then made a second order
dividing the assets. It is this second order that is in issue in these
proceedings. Mrs Reid was satisfied with it. She filed an action in Barbados
to have it enforced against Mr Reid who was then resident in Barbados.
Having so filed, she applied for summary judgment. Mr Reid resisted that
application. He filed a defence to the action for enforcement of Judge
Sweeney's second order.
[4] The application for summary judgment came first before Justice Moore in
the High Court. Mrs Reid prevailed. Mr Reid appealed. The Court of Appeal of
Barbados overturned Justice Moore's decision and remitted the case for trial.
Mrs Reid appealed the judgment of the Court of Appeal to this court. We are
of the view that her appeal to us should succeed and, for the reasons that
follow, we have ordered the restoration of the orders made by Justice Moore.
THE MASSACHUSETTS PROCEEDINGS
[5] The spouses owned assets in the USA and in Barbados. At his first
hearing, where both spouses were represented, Judge Sweeney found these
assets to have a net value of US$615,781. (All money amounts throughout this
judgment are stated in United States dollars). The assets included: the
matrimonial home in the USA and, in Barbados, two lots of land and a
property ("the Mount Standfast property") that Mr Reid had inherited from
his father and which was said then, in 1993, to be worth $300,000.
[6] In his initial division of the assets, Judge Sweeney effectively awarded
to Mr Reid assets that were then valued at $391,000 net. That sum included
an amount representing 70% of the value of the Mount Standfast property. The
judge awarded to Mrs Reid assets with a net worth of $224,000 which sum
included the two lots of land in Barbados, the marital home in Massachusetts
and 30% of the value of the Mount Standfast property. The judge made a few
other orders including one requiring each party to be responsible for his or
her own attorney's fees and for his or her own liabilities.
[7] On appeal, each spouse again being legally represented, the
Massachusetts Appeals Court concluded that Judge Sweeney's order had failed
adequately to take into account Mrs Reid's substantial debts and liabilities
and the financial position in which she would be left upon payment of those
liabilities. The Appeals Court noted that Mrs Reid's liabilities (which were
said to include her attorney's fees of $81,846) amounted to $153,517 while
Mr Reid's, including his attorney's fees, amounted only to $74,979. The
Appeals Court saw "no sound reason why [Mrs Reid] should leave the marriage
with assets net of debt worth approximately $71,000 while [Mr Reid] leaves
the marriage with assets net of debt worth well in excess of $300,000".
Accordingly, the court set aside those aspects of Judge Sweeney's order
pertaining to "property division and debt allocation" and remanded the case.
Judge Sweeney was directed to hold such hearings and take such evidence as
he deemed necessary to effectuate their order. In all other respects, the
Appeals Court stated, the judgment of Judge Sweeney was affirmed.
[8] Prior to the Appeals Court delivering its judgment Mr Reid had sold the
two lots of land in Barbados that had been awarded to Mrs Reid by Judge
Sweeney's original order. This was a violation of that order. As a result,
Mrs Reid successfully pursued contempt proceedings in the USA against Mr
Reid. The Mount Standfast property was also sold by Mr Reid some time before
Judge Sweeney's second hearing. In determining Mrs Reid's application for
summary judgment in Barbados nothing turns on either of those matters and we
mention them only for the sake of completeness.
[9] On 29th August 1996, in the course of the second round of proceedings
before him, Judge Sweeney issued a "Temporary Order" pending a hearing on
the merits. The Temporary Order addressed itself principally to a
distribution of the spouses' real estate and other property located in the
USA. The Order concluded with a notification that:
"There will be an evidentiary hearing on November 14, 1996, to determine
what ... [it seems that this last word should really be "whether"]... Jerome
L. Reid has sold any marital assets located in Barbados since the divorce
decree was entered on December 20, 1993 and also the sales price received by
Jerome L. Reid from those sales".
[10] Although the Temporary Order was personally served on Mr Reid in
Barbados on the 18th September, 1996 he declined to participate in or be
present at the November 1996 hearing. He had earlier sworn an affidavit, on
25th July, 1996, stating that he did not have sufficient funds available to
him in the USA to retain lawyers to act for him in any further proceedings
before Judge Sweeney.
[11] Mrs Reid participated fully in the November 1996 proceedings. She filed
a Memorandum regarding the change in value of marital assets. In this
document she disclosed that she had information to the effect that Mr Reid
had sold the Mount Standfast property in Barbados for US$1.5 million. She
urged the court to take full account of that updated valuation when dividing
the assets. She argued that she should be awarded a one half share of the
proceeds of the sale of that property. She did not in her Memorandum
indicate whether the Massachusetts property that originally had been awarded
to her had similarly appreciated in value and, if so, to what extent. Her
lawyers submitted for the consideration of Judge Sweeney a proposed Judgment
in which was set out how, in their view, the matrimonial assets should be
distributed.
[12] Judge Sweeney held his November 1996 evidentiary hearing as promised.
We do not know what precise form the hearing took and precisely what
evidence was placed before or considered by the judge. But we do have the
judgment that resulted from the evidentiary hearing. The judgment is dated
21st November, 1996. It affirms that an evidentiary hearing was indeed held
on November 14, 1996, and the content of the judgment is said to be issued "in
consideration of the parties' submissions".
[13] In his second judgment Judge Sweeney awarded to Mrs Reid the real
estate in Massachusetts including the former matrimonial home. The judge
found that Mr Reid had on 15th December, 1995 sold the Mount Standfast
property for US$1,260,000. Mr Reid was ordered forthwith to pay to Mrs Reid
$415,800.00 representing a one third share of the gross proceeds of that
sale. Mr Reid was also ordered "to pay the sum of $148,690.00 to the law
firm of Atwood & Cherny ... as contribution towards the Wife's costs and
counsel fees in this action, including the costs of appeal and post-trial
proceedings ..."
[14] Atwood & Cherny is the law firm that represented Mrs Reid throughout
the Massachusetts proceedings. As security for the legal fees owed to them
by her, Mrs Reid had granted a mortgage for $150,000.00 over the
Massachusetts property in favour of that firm. The firm had earlier filed a
real estate lien against the said property for those legal fees.
MRS REID'S ACTION IN BARBADOS TO ENFORCE THE JUDGMENT
Mrs Reid wished to obtain the fruits of Judge Sweeney's second order from Mr
Reid in Barbados. It is settled law however that at common law a judgment
creditor seeking to take advantage of a final and conclusive money judgment
obtained abroad cannot directly execute on that judgment in Barbados. The
judgment creditor must bring an action on the foreign judgment in the local
court. If the creditor brings such an action and the judgment debtor gives
notice of an intention to defend, the Rules of the Supreme Court allow the
judgment creditor the possibility of averting a trial of the action. The
judgment creditor may apply for summary judgment pursuant to Order 14 of the
rules. If the judgment creditor's application is successful then a
full-blown trial of the action becomes unnecessary. The substance of the
foreign judgment is then embodied in an order of the local court which is
enforceable in the usual way in which such orders are enforced.
[16] The relevant provisions of Order 14 state:
(1) (1) Where in an action to which this rule applies a statement of claim
has been served on a defendant and that defendant has given notice of
intention to defend the action, the plaintiff may, on the ground that that
defendant has no defence to a claim included in a writ . apply to the Court
for judgment against that defendant.
(2) …[not relevant]….
(3) (1) Unless on the hearing of an application under rule 1 either the
Court dismisses the application or the defendant satisfies the Court with
respect to the claim . to which the application relates that there is an
issue or question in dispute that ought to be tried or that there ought for
some other reason to be a trial of that claim . the Court may give such
judgment for the plaintiff against that defendant on that claim . as may be
just having regard to the nature of the remedy or relief claimed. ...
(4) (1) A defendant may show cause against an application under rule 1 by
affidavit or otherwise to the satisfaction of the Court.
(5) (3) The Court may give a defendant against whom such an application is
made leave to defend the action with respect to the claim . to which the
application relates either unconditionally or on such terms as to giving
security or time or mode of trial or otherwise as it thinks fit.
[17] In support of the application for summary judgment Mrs Reid relied
substantially on two affidavits sworn by her and one sworn by Mr Jacob
Atwood, a partner in the firm of Atwood & Cherny. In her affidavits she
affirmed the existence of Judge Sweeney's second order as a final and
conclusive judgment and she deposed that she was unaware of any Defence that
was open to Mr Reid in respect of the attempt to enforce it in Barbados. She
also disclosed that she was contractually responsible to Messrs Atwood &
Cherny for her legal costs and that the effect of the relevant part of Judge
Sweeney's second order was also to make Mr Reid directly liable to Atwood &
Cherny for those costs. That law firm, she noted, had placed a lien on her
property and when she sold the property she had no option but to satisfy
that debt. In her first affidavit Mrs Reid also exhibited the judgments and
orders that had been handed down in Massachusetts. Mr Atwood's affidavit was
brief. It confirmed the contents of Mrs Reid's first affidavit and in
particular the validity, efficacy and finality of Judge Sweeney's second
order.
[18] Mr Reid swore a total of three affidavits. Among other things, he
alleged that Judge Sweeney's second order "was not determined according to
the principles of family law that would be acceptable to a court in [Barbados],
but was arbitrary". He reminded the court that he was not present at the
November, 1996 hearing and he reiterated that this was because he did not
have sufficient funds available to him in the USA to represent himself. He
sought to impeach Judge Sweeney's second order on the ground that no account
had been taken of the updated value of the US properties. Since the first
order of Judge Sweeney, these properties had been sold by Mrs Reid for sums
considerably in excess of their value earlier presented to the court. He
complained that Judge Sweeney "for the most part accepted and followed" the
judgment proposed by Mrs Reid and her legal representatives.
[19] With respect to that part of the judgment ordering him to pay the sum
of $148,690.09 to Messrs. Atwood & Cherny, Mr Reid asserted that this too
was an arbitrary exercise of judicial discretion. The Massachusetts Appeals
Court had made no order as to costs but, said Mr Reid, Judge Sweeney
purported to give Mrs Reid legal costs incurred by her covering the period
prior to Judge Sweeney's first order right up to and including the time of
the making of the second order.
[20] In his judgment granting Mrs Reid's application for summary judgment,
Mr Justice Moore deemed the re-hearing by Judge Sweeney as part and parcel
of the proceedings in which Mr Reid had originally participated. This
circumstance, the judge intimated, gave the Massachusetts court jurisdiction
over Mr Reid when the second order was made. This remained the case
notwithstanding the fact that Mr Reid was resident in Barbados at the time
of the making of the second order and the evidentiary hearing that preceded
the order. Justice Moore was unimpressed with Mr Reid's protestations that
he did not have sufficient funds available to him in the USA to allow him to
defend or be present at the second set of Massachusetts proceedings. To the
contrary, the judge found that Mr Reid had considerable funds in Barbados
having recently sold the Mount Standfast property. Justice Moore stated that
it had not been demonstrated either on affidavit or by argument that any
attempt was ever made by Mr Reid to obtain permission from the Central Bank
to send money out of Barbados. The judge further refused to accept the
inference that Judge Sweeney had violated the procedural rules of the
Massachusetts court because, in his opinion, no evidence of any such breach
had been produced.
[21] The Court of Appeal of Barbados heard Mr Reid's appeal in June, 2002.
In a judgment delivered on 5th April, 2007 reversing Justice Moore, the
Court of Appeal took the view that Judge Sweeney had disregarded the
directions of his own Appeals Court by awarding Mrs Reid a substantial sum
for costs. The "cavalier manner" in which this was done, it was said, raised
"serious concerns as to the bona fides" of Judge Sweeney's second order. The
Court of Appeal considered that this aspect of Judge Sweeney's decision was
diametrically opposed to its views of fundamental justice and was sufficient
in itself to taint the whole of Judge Sweeney's judgment. The Court of
Appeal offered no specific reason for impugning that part of Judge Sweeney's
order that awarded Mrs Reid a one third share of the gross sale proceeds of
the Mount Standfast property.
THE APPEAL TO THE CCJ
[22] Before addressing the arguments of counsel made to us, it would be
remiss of this Court not to advert to the length of time taken by the Court
of Appeal to deliver its judgment in this case. This was an astonishing
period of almost five years. In the first appeal we heard from Barbados,
Mirchandani (No. 1)[FN1], de la Bastide, P. expressed this Court's strong
disapproval of judicial delays. Such delays, the President stated, "deny
parties the access to justice to which they are entitled and undermine
public confidence in the administration of justice". The effectiveness of a
judiciary is seriously compromised if it fails to monitor itself in respect
of the time taken to deliver judgments and to arrest promptly any tendency
to lapse in this aspect of its performance. This is the second time we have
had occasion to call attention to inordinate delay in the delivery of
judgments in Barbados. We trust that effective remedial action, if not
already taken, will now be taken to ensure that judgments are delivered
within a reasonable time as required by the Constitution of Barbados[FN2].
What is a reasonable time? In our view, as a general rule no judgment should
be outstanding for more than six months and unless a case is one of unusual
difficulty or complexity, judgment should normally be delivered within three
months at most.
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[FN1] (2005) 69 WIR 35 at 50
[FN2] See Barbados Constitution section 18(8)
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SUMMARY JUDGMENT
[23] In order to obtain summary judgment a claimant must establish that the
defendant has no realistic prospect of successfully defending the action. If,
on the other hand, the defendant satisfies the court that there is an issue
or question in dispute which ought to be tried or that there ought for some
other reason to be a trial, then the court would be wrong to grant summary
judgment. In Williams v. Williams[FN3], Peterkin, CJ put the matter in this
fashion:
"The procedure for summary judgment requires that leave to defend ought to
be given whenever there is an issue to be tried, even though the judge or
master may think the defendant will fail, provided of course, that there is
no good ground for believing that the so-called defence is a sham. In short,
the defendant is not bound to show a good defence on the merits. He must,
however, satisfy the judge or master that there is an issue or question in
dispute which ought to be tried or that there ought for some other reason to
be a trial of the claim".
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[FN3] (1982) 30 WIR 77 at 80
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[24] In determining whether there is an issue to be tried, the court must
not seek to conduct a mini-trial or to weigh the opposing affidavits. Unless
the assertions made are "shown to be manifestly false either because of
their inherent implausibility or because of their inconsistency with the
contemporary documents or other compelling evidence", the court should
accept the facts stated by the defendant. See: Bhogal v Punjab National Bank,
Basna v Punjab National Bank[FN4]. But the court should be wary of baseless
opinion dressed up as fact and of attempts to encourage what can best be
regarded as useless fishing expeditions. A defendant is not entitled,
without more, merely to say that in the course of time something may turn up
that would render the claimant's case vulnerable to attack. To proceed in
that vein is to indulge in speculation. In order to avoid summary judgment
and profit from access to the mechanisms of discovery, interrogatories and
cross-examination, the defendant must put forward facts that establish the
existence of a triable issue. As Ackner LJ observed in Banque de Paris v.
Costa de Naray [FN5]
". the mere assertion in an affidavit of a given situation which is to be
the basis of a defence does not, ipso facto, provide leave to defend; the
Court must look at the whole situation and ask itself whether the defendant
has satisfied the court that there is a fair or reasonable probability of
the defendants' having a real or bona fide defence".
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[FN4] [1988] 2 All ER 296 at 303 per Bingham LJ
[FN5] [1984] 1 Lloyd's Rep. 21 @ 23
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[25] Where in proceedings for summary judgment a defendant has not made out
an arguable defence to the claim, the court nonetheless retains a residual
discretion to order a trial if "the defendant satisfies the court with
respect to the claim . to which the application relates that there . ought
for some other reason to be a trial of that claim" (See: Order 14 Rule 3).
If therefore, for example, facts and circumstances are established which on
their face do not disclose an arguable defence but which when taken together
bear the appearance of some unjust stratagem that the defendant cannot
unravel without the tools of discovery, interrogatories and
cross-examination, then in the interest of justice the court may order a
trial so that the circumstances may properly be investigated. See: Miles v.
Bulf.[FN6]
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[FN6] [1969] 1 Q.B. 258
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[26] A judgment creditor seeking to enforce a foreign judgment by an action
at common law often has recourse to Order 14. This is because it is settled
law that courts narrowly circumscribe the range of defences available to a
defendant to such a claim. Assuming that the foreign court had jurisdiction
over the defendant according to our rules of private international law, the
action to enforce the in personam obligation established by the foreign
court will succeed unless the foreign judgment was obtained in breach of
natural justice or in circumstances that do not comport with substantial
justice; or if it is tainted with fraud, or if the enforcement of it is
contrary to public policy[FN7]. It is appropriate therefore to consider the
issue of jurisdiction so far as Judge Sweeney's second order is concerned
and then examine the Massachusetts proceedings and the submissions of
counsel under the broad heads of substantial justice, fraud and public
policy.
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[FN7] See: Pattni v Ali [2007] 2 AC 85 at [39]
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JURISDICTION
[27] A fundamental requirement for the enforcement of a foreign judgment at
common law is that the foreign court should have had jurisdiction according
to our rules of private international law. Mr Haynes QC, who appeared for Mr
Reid, submitted that Judge Sweeney's court lacked jurisdiction to make the
second order. In Emanuel v. Symon[FN8], Buckley LJ listed a number of
matters that would ordinarily ground jurisdiction. The list includes the
following: where the defendant was resident in the foreign country when the
action began; where the defendant in the character of plaintiff has selected
the forum in which he is afterwards sued; where the defendant has
voluntarily appeared, and where the defendant has contracted to submit
himself to the forum in which the judgment was obtained.
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[FN8] [1908] 1 K.B. 302 at 309
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[28] Mr Reid was present and resident in Massachusetts when the proceedings
were originally commenced. He had voluntarily and fully participated in the
initial stages. It was he who had appealed to the Massachusetts Appeals
Court whose judgment had triggered the re-hearing and he had been
specifically served with notice of the second hearing before Judge Sweeney.
In light of all these circumstances it is our view that Justice Moore was
right to find that Judge Sweeney's court had jurisdiction over Mr. Reid when
the second order was made.
SUBSTANTIAL JUSTICE
[29] Mr Reid's absence from the proceedings that culminated in Judge
Sweeney's second order might be relevant in determining whether a triable
issue was raised with regard to the alleged breach of natural or substantial
justice. Mr Haynes submitted that Justice Moore's treatment of Mr Reid's
absence (summarised above at [20]) amounted to the drawing of an inference
which was an exercise that should be carried out at a trial and not at a
summary judgment hearing. Counsel contended that Justice Moore, in Order 14
proceedings, was duty bound to accept Mr Reid's bald assertion that the
latter did not have sufficient funds available to him in the USA to enable
him to participate in the continuation of the proceedings before Judge
Sweeney. First of all it must be said that even if what Mr Reid said was
true, then that circumstance, without more, could not suffice to establish
the triable issue in question. Mr. Reid would at least have had to
demonstrate that he was precluded by forces beyond his control from
effectively participating in the re-hearing. Even in the context of the
observation by the Massachusetts Appeals Court that "there are substantial
restrictions on the release of funds from Barbados", Mr Reid needed to
provide some evidence that an application by him for permission to remit
funds to the United States to pay his legal costs had been frustrated.
Secondly, the unchallenged evidence in this case was that Mr Reid had
recently received $1.2 million from the sale of the Mount Standfast property.
In all the circumstances Justice Moore was right to infer from this and from
Mr Reid's failure to mention any application by him for permission to remit
funds, that no such application was ever made. As was stated by Ackner LJ,
the court must look at the whole situation. The material before Justice
Moore clearly indicated that Mr Reid did not have a funding problem and that
he had decided to absent himself from the re-hearing.
[30] Mr Haynes further argued that Judge Sweeney's second order was unjust
because of a number of specific alleged irregularities. These included the
following:
(a) Misrepresentation and non-disclosure on the part of Mrs Reid;
(b) The unfair manner in which the assets were divided;
(c) Procedural irregularities on the part of Judge Sweeney during the
conduct of the second hearing, and
(d) The inappropriateness of the order for payment of Mrs Reid's legal fees.
MISREPRESENTATION AND NON-DISCLOSURE/UNFAIR DIVISION OF THE ASSETS
[31] In 1993, when Judge Sweeney issued his first order, the marital home in
Massachusetts which was awarded to Mrs Reid was valued at $370,000. It does
not seem as if any updated valuation of it was done prior to the making of
Judge Sweeney's second order - at least, none was brought to the attention
of the judge so far as we are aware. However, the house must have
appreciated considerably since the making of the first order. We have seen a
Deed showing that Mrs Reid sold it in September, 1997 for $651,000. Mr
Haynes attacks the second order on two grounds. Firstly, it is said that Mrs
Reid, in not producing an updated valuation of the Massachusetts property
while doing so in respect of the Mount Standfast property, was guilty of
non-disclosure and/or misrepresentation. Secondly, in not seeking an updated
valuation and in not alluding to or factoring into his second order the
enhanced value, Judge Sweeney had committed a serious error. In either case,
Mr Haynes submits, there is here sufficient evidence of substantial
injustice to warrant a trial.
[32] Mr Haynes also submits that his client should have received a larger
share of the pie when the marital assets were divided. Not surprisingly
however, this contention was not pressed before us.
[33] The above complaints can be disposed of together. If indeed Judge
Sweeney entirely disregarded the enhanced value of the Massachusetts
property, as appears to have been the case, the judge thereby deprived
himself of useful evidence that might have enabled him to have regard to the
Appeals Court's concern over the net amount that would be available to Mrs
Reid after payment of her debts. In this respect, it may be said that the
judge was not adhering scrupulously to the directions of his Appeals Court.
However, the short answer to Mr. Haynes' submissions is that these
complaints could and should have been taken on appeal in Massachusetts.
These are not points which can now properly be taken in the courts of
Barbados. The Barbados courts cannot be used as a forum for correcting
errors, real or perceived, of the foreign court, when there was every
possibility that the defendant may have had any such errors corrected
through the utilisation of processes that exist in the foreign court system.
In the publication by Dicey, Morris and Collins on The Conflict of Laws[FN9]
the matter is put in this way:
Rule 41 – A foreign judgment which is final and conclusive on the merits and
not impeachable under any of Rules 42 to 45 is conclusive as to any matter
thereby adjudicated upon, and cannot be impeached for any error either of
fact or of law.
Rules 42 to 45 address respectively questions of jurisdiction, fraud, public
policy and natural justice.
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[FN9] Sweet & Maxwell, 14th Edn., 2006 at 616
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[34] In Pemberton v Hughes[FN10] Lindley MR stated in a passage which has
equal relevance to Barbados and with which we completely agree:
"If a judgment is pronounced by a foreign Court over persons within its
jurisdiction and in a matter with which it is competent to deal, English
Courts never investigate the propriety of the proceedings in the foreign
Court, unless they offend against English views of substantial justice.
Where no substantial justice, according to English notions, is offended, all
that English Courts look to is the finality of the judgment and the
jurisdiction of the Court, in this sense and to this extent - namely, its
competence to entertain the sort of case which it did deal with, and its
competence to require the defendant to appear before it. If the court had
jurisdiction in this sense and to this extent, the courts of this country
never inquire whether the jurisdiction has been properly or improperly
exercised, provided always that no substantial injustice, according to
English notions, has been committed".
Later in this judgment we shall comment further on the matter of substantial
justice but it suffices to state now that in our view there is nothing in
these complaints that amounts to a breach of it.
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[FN10] [1899] 1 Ch 781 @ 790-791; See also Jacobson v. Frachon (1928) 138
L.T. 386
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PROCEDURAL IRREGULARITIES
[35] Mr Haynes also cites the following as evidence of irregularity rising
to the level of a lack of natural or substantial justice –
(a) the failure to hold a "proper judicial hearing" and in particular the
allegation that the proposed judgment submitted by Mrs Reid's lawyers was "largely
adopted by Judge Sweeney", and
(b) the "considerable gap" between Barbados notions of substantial justice
and what took place in Massachusetts in the absence of Mr Reid and his legal
representatives.
[36] In support of these submissions, reliance was placed on Adams v Cape
Industries plc[FN11] and Masters v. Leaver[FN12]. In Adams v Cape a Texan
court had given a default judgment in favour of 206 plaintiffs for damages
for personal injuries. The award made to individual plaintiffs fell into
four different bands. Without hearing any oral, or considering any affidavit,
evidence, the judge directed that the total judgment should represent an
average award of $75,000.00 per plaintiff. The judge then left it to the
plaintiffs' counsel to select the level of the bands and to identify the
particular plaintiffs to be placed in each band in order to produce the
directed average award. When an action was brought to enforce this judgment
in England it was held that the method by which the Texan court had come to
a decision as to the amount of the default judgment was contrary to the
requirements of substantial justice contained in English law. This method
was highly unusual. It was not in keeping with the system of justice
evidenced by the Federal Rules which were binding on the Texan court and
significantly, no prior notice had been given to the defendants that the
plaintiffs intended to pursue such an unusual course.
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[FN11] [1990] Ch. 433 C.A
[FN12] Times Law Reports, August 5, 1999 (CA)
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[37] Masters v. Leaver was also concerned with a Texan judgment. Here too
the judgment had been obtained by default. Damages were to be assessed.
There was a wide variation in the expert evidence on matters relative to the
quantification of the damages. The claimants elected to have the quantum
assessed by the jury. The defendant was led to believe that the jury had
assessed the damages in the normal way as they should have. Long after the
time had elapsed for lodging any appeal in Texas, the defendants discovered
that, contrary to the repeated assertions of the claimants on oath, the
damages were not in fact assessed by the jury but instead were given on the
direction of the judge. When proceedings were brought to enforce the
judgment in England it was held that there was here a breach of substantial
justice.
[38] There is no evidence to suggest that in the instant case anything
occurred that can be compared with what transpired in the two cases cited
above. There is no doubt whatsoever that Judge Sweeney carried out his own
independent judicial assessment of the manner in which the Reids' marital
assets should be divided. A cursory comparison of his second order with Mrs
Reid's proposed judgment bears this out. In the proposed judgment, it was
stated that the Mount Standfast property had been sold for US$1.5 million
and that Mrs Reid should be awarded a payment of one half of that sum i.e.
$750,000, with interest thereon at 12% per annum from the date of judgment
until the amount was paid in full. By contrast, Judge Sweeney in his
judgment found that the property was sold for $1.26 million and Mrs Reid was
awarded a payment of one third, or $415,800.00, with no mention being made
of interest.
[39] Mr Haynes spent much time on that part of Judge Sweeney's award that
ordered Mr Reid to contribute to Mrs Reid's legal costs to the amount of
$148,690. The submissions on this point so impressed the Court of Appeal
that it made them the entire basis of its decision. Counsel's argument was
to this effect. In his first judgment Judge Sweeney had made no order as to
costs. The Massachusetts Appeals Court reversed that judgment in so far as
it pertained to "property division and debt allocation" but in all other
respects affirmed the judgment of Judge Sweeney. The Appeals Court therefore
implicitly affirmed the decree that there should be no order as to costs. In
making the order that he did in his second judgment Judge Sweeney was, at
least in so far as the costs of the first hearing and the appeal were
concerned, disregarding the direction of his own Appeals Court. Moreover, he
had carried out no independent assessment of the costs before he ordered
that such a large sum be paid.
[40] We cannot agree that Judge Sweeney disregarded the directions of the
Appeals Court. The thrust of the Massachusetts Appeals Court judgment was
that Judge Sweeney had concentrated his mind only on the assets of the
spouses while entirely neglecting to take into account their liabilities
which included their respective attorneys' fees. This error, the Appeals
Court stated, had the effect of leaving Mrs Reid after payment of her debts
with a much smaller amount of money than Mr. Reid would be left with after
payment of his debts. When the Appeals Court concluded that "[I]n all other
respects, the judgment is affirmed", this did not preclude Judge Sweeney
from "allocating debts" by requiring Mr Reid to pay Mrs Reid's attorneys'
bill. It is not as though the Appeals Court's confirmation of Judge
Sweeney's judgment "in all other respects" could only have been intended to
deal with the issue of costs. One of the things which it served to preserve
was Judge Sweeney's order "that neither party pay spousal support to the
other".
[41] Mr Haynes also attacks from another angle Judge Sweeney's order that Mr
Reid contribute to Mrs Reid's legal costs in the amount of $148,690.09. The
precise wording of that aspect of the judgment is given above at [13]. It is
said that Mrs Reid is not entitled to summary judgment in respect of an
order to pay money to a third party. The evidence is clear however that at
the time Judge Sweeney made this order Mrs Reid owed these sums to her
attorneys. The latter had placed a lien against her property. Some time
after the making of Judge Sweeney's second order that property was sold and
Mrs Reid was under compulsion to satisfy the attorneys fully from the
proceeds of sale. In our view all the elements of subrogation have been
sufficiently pleaded and proved and we do not agree that Mrs Reid is
incapable of being awarded summary judgment on this basis.
[42] Finally, it was submitted that Judge Sweeney ought not to have stated
in his second judgment that he had held an evidentiary hearing and
considered then the parties' submissions since only one party, Mrs Reid, was
present and participated at whatever occurred on 14th November, 1996.
[43] As previously indicated the available evidence suggests that Judge
Sweeney did hold a hearing on 14th November, 1996. We have a judgment
emanating from that hearing. We also know that Judge Sweeney exercised his
independent mind in determining the outcome of that hearing because we know
that the party who participated did not have things all her own way. We know
too that the proceedings were a re-hearing of previous proceedings in which
Mr Reid by his legal representatives would have made submissions. It is
therefore entirely conceivable that those latter submissions would have
again been considered by Judge Sweeney the second time around. Absent some
positive evidence to the contrary we cannot share Mr Haynes' doubts about
the bona fides of Judge Sweeney's declaration that he had held an
evidentiary hearing and that he had considered the parties' submissions.
Certainly the judge could not have hoped by that declaration to deceive
anyone, least of all Mr Reid.
FRAUD
[44] A foreign judgment may be impeached for fraud if an attempt is made to
have it enforced in Barbados. Such fraud may be either the fraud of the
party in whose favour the judgment was given or the fraud of the court
pronouncing the judgment. In so far as the fraud alleged here relates to the
acts of Mrs Reid, the submission is that her alleged misrepresentations and
non-disclosures with respect to the valuation on the marital home were
sufficient to constitute fraud.
[45] We would refrain at this time from entering into the debate as to
whether it is necessary that the fraud in question should be newly
discovered since the trial or whether such fraud properly may include
matters raised during the course of the foreign proceedings. The courts in
Canada take a different view from those in England on this question[FN13]
and at some point this Court will be called upon to give its opinion on this
issue. It is sufficient for us to say now that we reject the notion that
fraud can be attributed to Mrs Reid when in direct response to Judge
Sweeney's request she submitted a Memorandum indicating what marital assets
located in Barbados had been sold since the divorce decree was entered on
December 20, 1993 and also the sales price received by Mr Reid from those
sales. Nor do we consider that Mrs Reid's omission to obtain and proffer to
the court an updated valuation of the property awarded to her, could
possibly be held to constitute fraud on her part.
No fraud was alleged against Judge Sweeney and indeed we would not accept
that there was a valid basis for any such allegation. Indeed, nothing in the
record suggests that Judge Sweeney was anything but an independent and
impartial adjudicator.
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[FN13] See Dicey, op. cit. page 623
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PUBLIC POLICY
[46] No arguments were raised to suggest that there was some public policy
ground on which Judge Sweeney's second order should not be enforced in
Barbados. This head of Defence therefore does not arise.
CONCLUSION
[47] Mr Reid's untenable position is that he seeks to impeach the foreign
judgment on the ground that the proceedings giving rise to it did not comply
with substantial justice or were tainted with fraud while simultaneously he
professes an ignorance of precisely what transpired in the very proceedings
he seeks to impugn. While we agree with Mr Haynes that the issue of
substantial justice must be determined by standards accepted by the courts
of Barbados this cannot mean that the system of justice or the course of the
proceedings in the foreign court will be acceptable only if it resembles or
approximates what obtains in Barbados. A failure to meet the threshold of
incompatibility with substantial justice connotes some aberration, some
procedural or other deviation that is so fundamental that we regard it and
the result it produces as not being in accord with our basic notions of what
is fair and just. Bearing in mind in particular that Mr Reid had the options
of appearing in the second hearing before Judge Sweeney and then, if
appropriate, of lodging a second appeal in Massachusetts we can find nothing
of the sort here. Justice Moore was right to order summary judgment in this
matter. We therefore allow the appeal with costs. Mrs Reid will have her
costs in the courts below. The orders of Justice Moore are restored. |
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