2003 Carswell PEI 103, 2003
PESCTD 76, 230 Nfld. & P.E.I.R. 54, 682 A.P.R. 54
Society of Lloyd's v. McNeill
In the Matter of the Canada-United
Kingdom Judgments Recognition Act,R.S.P.E.I. 1988, Cap. C-1
In the Matter of an Application to
Register a Judgment of the English HighCourt of Justice, Queens Bench Division,
Commercial Court, between The Society of Lloyd's (Applicant)
and Hubert Bernard McNeill (Respondent)
P.E.I. S.C. [In Chambers]
Jenkins J.
September 24, 2003
Heard: September 2, 2003
Judgment:
September 24, 2003
Docket: S-1-GS-19948
Proceedings: additional reasons at Society of Lloyd's v. McNeill, (2003), 2003 PESCTD 88 (P.E.I. T.D. [In Chambers])
Counsel: Kevin J. Kiley for Applicant
Robert B. McNeill for Respondent
Subject: International
Conflict of laws --- Enforcement of foreign judgments --
Reciprocal enforcement of judgments legislation -- General principles.
Conflict of laws --- Enforcement of foreign judgments --
Enforcement of interest award on foreign judgment.
Cases considered by Henkins J.:
Patterson v. Vacation Brokers
Inc. (1997), 103 O.A.C. 1, 1997 CarswellOnt 3025 (Ont. C.A.) -- followed
Statutes considered:
Canada-United Kingdom Judgments
Recognition Act, R.S.P.E.I. 1988, c. C-1
Generally -- considered
Judgment Act, S.P.E.I.
1873, c. 16
Generally -- referred to
Supreme Court Act, R.S.P.E.I.
1988, c. S-10
Generally -- referred to
s. 49(1)(c) -- referred to
s. 51(1) -- referred to
s. 51(3) -- considered
s. 52 -- referred to
Forms considered:
Rules of Civil Procedure, P.E.I.
Rules
Form 57A -- referred to
Treaties considered:
Convention between Canada and the
United Kingdom of Great Britain and Northern Ireland for the Reciprocal
Recognition and Enforcement of Judgments in Civil and Commercial Matters
Generally -- considered
Article III ¦ 1 -- considered
Article III ¦ 2 -- considered
Article IV -- referred to
APPLICATION by insurance society for
registration of foreign judgment.
Henkins J.:
1 The
Applicant, Society of Lloyd's ("Lloyd's")
has applied for registration of a foreign judgment against the Respondent, Dr.
Hubert McNeill ("Dr. McNeill"). Dr. McNeill acknowledges the judgment
and Lloyd's right to registration in this jurisdiction. He disputes Lloyd's
entitlement to post-judgment interest from the date of judgment to the date of
registration here.
2 Dr.
McNeill was a Lloyd's underwriter. As a Name, Dr. McNeill undertook obligations
that could require payment of Name's Premiums. In 1996, Dr. McNeill's Name's
Premium under the Reinsurance Contract in the sum of 242,385.00 became due.
Payment not having been made, Lloyd's commenced a collection proceeding against
Dr. McNeill in the English Commercial Court for the stated principle amount and
pre-judgment interest in accordance with the contract. Service occurred, and
payment was not made. On March 11, 1998, Lloyd's entered judgment against Dr.
McNeill in the English Court in the sum of 272,088.09 comprised of 242,275.79 principle [sic] and 29,812.30
interest together with costs to be taxed if not agreed. The judgment is final,
conclusive, and fully enforceable in England. No appeal is pending, no stay has
been issued, and no payment has been made.
3 Lloyd's
now applies under the Canada and United Kingdom Reciprocal Recognition
and Enforcement of Judgments Act, R.S.P.E.I. 1988, Cap. C-1 (the "Act") for
registration of the English judgment in the amount of 272,088.09 plus
post-judgment interest on the judgment amount from March 11, 1998 to the date
of registration in this jurisdiction at the English post-judgment interest rate
of 8% per year. At the date of hearing of this application, September 2, 2003,
the accrued post-judgment interest claimed amounted to 111,861.10, which at the
conversion rate supplied by the Applicant of 2.3057 amounts to $274,058.03.
4 I
have concluded that Lloyd's is entitled to an Order for registration of the
English judgment including post-judgment interest as claimed. Dr. McNeill's
submissions for denial or reduction of post-judgment interest are without
foundation and in contradiction of the principle applicable to reciprocal
enforcement of foreign judgments. Set out below is the evolution of the English
judgment creditor's entitlement to post-judgment interest.
5 Lloyd's
right to pre-judgment interest is contractual. Pre-judgment interest was
claimed, and was awarded in the English judgment.
6 Post-judgment
interest is provided for by law, not contract. It is not a defect that
post-judgment interest is not mentioned either in Lloyd's claim or the English
judgment. In the United Kingdom of Great Britain and Northern Ireland, there is
provision for post-judgment interest in the Judgments Act (1838). Thereunder,
the rate of interest is set from time to time by regulation. The Judgment
Debts (Rate of Interest) Order 1993 stipulates the rate at which
judgment debts shall carry interest to be eight percent per annum.
7 Registration
of an English judgment in this jurisdiction occurs pursuant to the Canada-United
Kingdom Judgments Recognition Act, supra. This Act made the Convention
for the Reciprocal Recognition and Enforcement of Judgments in Civil and
Commercial Matters (the "Convention") law
in Prince Edward Island. The Convention stipulates
at Article III, paragraph 1, that where a judgment has been given by a court of
one Contracting State, the judgment creditor may apply in accordance with
Article IV to a court of the other Contracting State at any time within a
period of six years after the date of the judgment to have the judgment registered, and on any
such application the registering court shall, (subject to such procedures),
order the judgment to be registered. Article III, paragraph 2, refers
specifically to post-judgment interest:
8 In
addition to the sum of money payable under the judgment of the original court including
interest accrued to the date of registration, the judgment shall be
registered for the reasonable costs of and incidental to registration, if any,
including the costs of obtaining a certified copy of the judgment from the
original court. [Emphasis added]
9 Under
the Convention, Article VI, paragraph 3, the practice and
procedure governing registration is specified to be generally covered by the
law of the registering court. In Prince Edward Island, Rule 73 of the Rules
of Court, Province of Prince Edward Island, 1996, covers
reciprocal enforcement of United Kingdom judgments. Article 4 of the Convention directs
refusal of registration in certain conditions. None of these conditions are
present in this case.
10 In
this jurisdiction, the Supreme Court Act, R.S.P.E.I.
1988, Cap. S-10, addresses post-judgment interest on foreign
judgments in full accord with the Convention. Sections
51(3) states:
11 Where an order is based on an
order given outside Prince Edward Island or an order outside Prince Edward
Island is filed with the court in Prince Edward Island for the purpose of
enforcement, money owing under the order bears interest at the rate, if any,
applicable to the order given outside Prince Edward Island by the law of the
place where it was given. [Emphasis added]
12 In
my opinion, this Court is directed by the statutory provisions to provide for
post-judgment interest from the date of the English judgment, March 11, 1988,
to the date of registration in September 2003 at the applicable rate of 8% per
annum. This opinion is supported by the decision of the Ontario Court of Appeal
in Patterson v. Vacation Brokers Inc. (1997), 103 O.A.C. 1 (Ont. C.A.).
13 I
am aware that s. 52 of the Supreme Court Act authorizes a
judge to disallow interest or allow interest at a higher or lower rate than
that provided in the statutory provisions for pre-judgment and post-judgment
interest where the court considers it just to do so. I do not consider it just
to disallow interest or reduce the rate of interest in this case. The right to
post-judgment interest on the English judgment arises as a matter of English
law. There is a specific foreign registration process, with which Lloyd's
complied within the specified six year time frame. By s. 51(3) of the Supreme
Court Act, the Prince Edward Island Legislature has directed
due recognition of English law regarding the right to post-judgment interest,
and the applicable rate of interest on an English judgment. I am not informed
of any particular fact or condition in this case that suggests a judicially
ordered exception to regular application of the reciprocal statutory regime
stated by the Convention.
14 As
Lloyd's counsel acknowledges, upon registration of the English judgment in
Prince Edward Island, post-judgment interest will henceforth accrue pursuant to
ss. 51(1) and 49(1)(c) of the Supreme Court Act at the
prescribed Prince Edward Island post-judgment interest rate in effect from time
to time.
15 The
draft order is in proper form, subject only to entry the final interest
calculation to date of registration and addition of costs of this motion, once
assessed.
16 The
Applicant shall have its costs of this application on a "partial
indemnity" i.e. party and party-like, basis. Counsel for Lloyd's is
requested to file with the Court and exchange with counsel for Dr. McNeill its
Bill of Costs in Form 57(A) setting forth the Applicant's claim for costs. Counsel
are requested to address costs forthwith so that judgment can be registered
within September, 2003.