Robin Kensworth Montgomery Yearwood v Christiana Yearwood

• Jurisdiction: Antigua and Barbuda
• Judge: Armour JA
• Judgment Date: 21 November 2017
• Judgment citation (vLex): [2017] ECSC J1121-1
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: ANUHCVAP 2015/0018
• Date: 21 November 2017

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Davidson Kelvin Baptiste, Justice of Appeal

The Hon. Mde. Louise Blenman, Justice of Appeal

The Hon. Mr. Reginald Amour, SC., Justice of Appeal, [Ag.]

ANUHCVAP 2015/0018

ANUHCVAP 2015/0019

Between:

Robin Kensworth Montgomery Yearwood

Appellant/Counter-Appellant

and

Christiana Yearwood

Respondent/Counter-Appellant

Appearances

David Joseph, QC with him Ms. Andrea Smithen for the Appellant

Dr. David Dorsett with him Mr. Jarid Hewlett for Respondent

Civil appeal — Consolidated appeals — Family proceedings — Rights to reciprocal enforcement of foreign monetary judgments under section 3(1) of the Reciprocal Enforcement of Judgments Act, Cap. 369 of the Revised laws of Antigua and Barbuda 1992 — Whether the learned judge erred in ruling that there was power to register the foreign judgment in family proceedings outside of the jurisdiction in accordance with Part 72 of the Civil Procedure Rules (“CPR 2000”) — Power of the Court to enforce foreign judgments — Whether the delay in filing the default costs certificate for enforcement of judgment amounts to inability to pursue enforcement of foreign monetary judgment — Estoppel — Res judicata — Rules 2.2 (3) and Part 72 of the Civil Procedure Rules 2000.

The decree absolute was issued by the High Court of England on 18^th December 2009, dissolving the marriage of Robin Yearwood, the appellant and Christiana Yearwood, the counter-appellant. Prior to this, Christiana Yearwood applied for financial provision and property adjustment orders. An order was granted by Phillip Moor, QC, Deputy High Court Judge, Family Division on 7^th December 2009 (“the 7^th December Order”) awarding a lump sum of £4,121,000.00 (“the lump sum”). Thereafter, on 10^th May 2010 the learned Deputy Judge made a further order (“the 10^th May UK Order”), ex parte for Robin Yearwood to pay the outstanding lump sum balance of £3,144,456.80 from the said 10^th May UK Order. The proceedings which led to these appeals commenced on 31^st May 2010, whereby Christiana Yearwood applied to the High Court of Justice, Eastern Caribbean Supreme Court to have the prior order, that is the 10^th May UK Order registered pursuant to the Reciprocal Enforcement of Judgments Act, Cap. 369, Revised Laws of Antigua and Barbuda 1992 (“the Act”). On 8^th December 2011, Michel J set aside his previous ruling to allow the registration of the 10^th May UK Order, previously applied for by Christiana Yearwood on the said 31^th May 2010. On 12^th November 2010, Christiana Yearwood was granted a default costs certificate in the United Kingdom to certify costs payable in the original action against Robin Yearwood amounting to £592,602.33 with interest commencing on the 7^th December, 2009. Additionally, based on the inter parte application of Christiana Yearwood on 9^th July 2012, the learned Moor J, QC made a further order discharging the 10^th May UK Order and, setting out the monies due to Christiana Yearwood pursuant to 7^th December Order totalling the sum of £1,882,851 (together both referred to as “the further order”).

On 27^th June, 2013, Christiana Yearwood applied to register the Default Costs Certificate of 12^th November 2010, and, the further order (together both referred to as the “2013 registration application”), additionally, seeking the costs of the 2013 registration. On 24^th July 2013, Robin Yearwood sought the declaratory relief to disentitle Christiana Yearwood from registering any judgments, orders or directives resulting from the UK proceedings, Claim No. FD08D00763, as well as an injunction to restrain the registration of any such judgment, order or directives, in addition to damages and costs of this action. Further, Robin Yearwood applied for summary judgment under the Civil Procedure Rules 2000 (“CPR 2000”) purporting that Christiana Yearwood's defence has no real prospect of success as the issues in contention were previously decided by Michel J in judgment dated 8^th December 2011, on the basis of the application of the doctrines of estoppel and res judicata and, alleging abuse of process by Christiana Yearwood.

Henry J heard and dismissed the summary judgment application of Robin Yearwood and found that although Part 72 of the CPR did not govern the registration of foreign judgments under the Act, it did not exclude the registration of money judgments obtained in family proceedings. In addition, Henry J ruled that the prior decision of Michel J did not provide a basis for the application of the principles of res judicata or estoppel nor abuse of process.

Further, the learned Henry J heard and found in favour of Christiana Yearwood by granting part of the application for the 2013 registration of the further order under the Act, however refusing registration of the default costs certificate. Henry J found that the certificate issued on 12^th November 2010 and the application were outside the time limit specified by section 3(1) of the Act and could not be registered within the jurisdiction of Antigua and Barbuda.

Both parties, dissatisfied with the decisions of Henry J dated 1^st June 2015 appealed to this Court.

Held: dismissing the appeal and allowing the counter-appeal, with costs of both here and below to be assessed if not agreed, that:

• 1. It is more a proper construction exercise in reference to primary and secondary legislation that, the rule (or indeed the absence of prescribed rules) may not limit the amplitude of the statute. The Reciprocal Enforcement of Judgments Act, Cap. 369, Revised Laws of Antigua and Barbuda permits that where the final adjudication of debt has been given, an obligation then exists which cannot thereafter in that court be disputed. Ergo, a foreign judgment is capable of registration in a local court and gives credit to that judgment through its enforcement by virtue of section 9(1) of the UK Administration of Justice Act 1920 (“AJA 1920”) subject only to the limitations expressly outlined by section 9(2).

  Nouvion v Freeman (1889) 15 App. Cas. applied.

• 2. Sections 9(1) and 9(2)(a) – (e) of the UK Administration of Justice Act 1920 are ingrained to sections 3(1) and 3(2)(a) – (e) of the Reciprocal Enforcement of Judgments Act, Cap. 369, Revised Laws of Antigua and Barbuda to demonstrate that the Act and AJA 1920 are to be construed and applied in tandem to facilitate the registration of foreign judgments. A judgment obtained by a party whereby a sum of money is payable in civil proceedings falls within the definition of “judgment” in section 2(1) of the Act, properly construed and applies to a judgment for lump sums finally adjudged as due and owing in family proceedings. In the case at bar, Robin Yearwood argued that the learned judge erred in law by permitting the registration of the further order under the Act, despite the CPR's express inapplicability to family proceedings; (b) further, the Act was not intended to allow for the registration of judgments in family proceedings; (c) the judgment which was permitted to be registered was outside of the time limit provided by section 3(1) of the Act; and that (d) the learned judge erred by incorrectly refusing to dismiss Christiana Yearwood's application on the grounds of issue estoppel/abuse of process. The learned judge was correct to dismiss Robin Yearwood's motion on this basis as the argument was without merit, as such, the Act should be ordinarily and naturally applied to a judgment or order obtained in family proceedings within the ambit of civil action.

  Owens Banks Ltd. v Bracco [1992] 2 A.C 443 applied; Beatty v Beatty [1924] All ER 314 applied.

• 3. In determining whether the delay in filing the default costs certificate for enforcement of judgment amounts to inability to pursue enforcement of a monetary judgment, much will turn on the wording of the Act. In the case at bar, nothing in the wording of the Act would allow for the time limit prescribed for which Robin Yearwood submits. The phrase “any civil proceedings” is consistent with the definition of “judgment” under section 2(1) of the Act therefore capable of registration. Further, section 3(1) of the Act permits the local court to allow for a longer period once it considers it just and convenient in all the circumstances that the judgment should be enforced in Antigua and Barbuda. The court retains discretion on the true construction of the Act as a whole to permit the registration nonetheless. The learned judge erred in her judgment in refusing to allow the registration of the default costs certificate as she failed to direct her mind to the question of whether an extension of time was just and convenient having regard to all the circumstances thereby exercising judicial discretion. It is clear that the learned judge erred by failing to consider relevant and material circumstances for the inordinate delay and as such this ground of appeal is allowed and Christiana Yearwood's 2013 registration application of the further order under the Act and registration of the Default Costs Certificate previously issued on 12^th November 2010 as enforcement of said further order is granted.

  Quinn v Pres-T-Con Limited [1986] 1 WLR 1216 applied.

JUDGMENT

Introduction

[1] Armour JA[AG]: This appeal arises from the decision of Henry J dated 17^th April 2015 in respect of two related matters, both appealed, one being an application by Ms. Christiana Yearwood (hereinafter referred to as “the wife”) in ANUHCV2013/0422 and the other, a claim for declaratory relief, among other things, brought by Robin Yearwood (hereinafter referred to as “the husband”) in ANUHCV2013/0490. An account of the relevant facts common to both matters is stated below.

[2] The marriage of the parties was dissolved by decree nisi on 6^th August 2008 by the High Court of England with the decree absolute being issued on 8^th December 2009. In UK proceedings, Claim No. FD08D00763, the wife...