In order to be able to speak comprehensively upon the subject of the enforcement of foreign judgements one must necessarily distinguish between the enforcement of a judgement given by the Courts of one particular country by the Courts of another country, and a recognition of this same judgement. With regards to the latter, this usually refers to judgements of a declaratory nature whilst enforcement on the other hand could possibly indicate a judgement having actual executive force.
Before deciding whether to enforce a foreign judgement or otherwise, the court must enquire whether the circumstances of the case fall under the various headings of section 827, in which case an enforcement would not be possible. Section 827 refers to jurisdiction under Section 742 of the same code. The importance of this latter Section in the context of the enforcement of foreign judgements is due to the fact that "... jekk jinstab li hemm xi wiehed minn dawn il-vizzji [i.e. the cases enumerated in Section 742], is-sentenza tat-tribunal esteru ma tkunx ezegwibbli mill-Qrati ta' dawn il-Gzejjer." This was stated by Justice Gouder in Camilleri v. Mizzi, decided in 1952, and it consequently appears that the existence of a factor which renders the local courts competent would be considered in the light of a 'defect' and would thus prevent the enforcement of a foreign judgement. The result will be that when any of the circumstances enumerated in Section 742 are found to be present, the Maltese Court will reject the demand for the enforcement of a foreign judgement.
Title V of the COCP sets down the general rules whereby the Maltese Courts are granted jurisdiction in the matter of enforcement of foreign judgements. These rules consist in the subordination of a foreign judgement to an act of local jurisdiction which, on ascertaining the existence of certain requisites, will declare its execution in Malta. It is important to note that in spite of the doctrinal difference between recognition and enforcement, sections 826-828 apply to both recognition as well as enforcement since the circumstances under which a foreign judgement will be recognised are approximately the same as those under which it will be enforced.
Section 826 stipulates that the judgement must be "... delivered by a competent court outside Malta..." so that it may be locally enforced. The jurisdiction or competence of the foreign court is to be determined in the light of the particular foreign law in question and if the Maltese Judge is satisfied as to the competence and jurisdiction of the foreign court in the light of our own law of jurisdiction, then all will be well - there is no express legal provision to this effect. However, acting on the assumption that we are to refer to Maltese law, an examination into this system of law will show that the COCP in Section 742 enumerates the number of cases wherein the local courts are entitled to exercise exclusive jurisdiction. Yet, when we say that the 'jurisdiction of the foreign court' is to be tested in the light of Maltese law, we do not mean the 'internal principles of Maltese law', but these principles as 'internationally applied'.
The British Judgements (Reciprocal Enforcement) Act of 1924 only provides for the enforcement of judgements delivered by the courts of those countries to which the Act contained in Chapter 52 applies. It is to be noted that all disputes relating to status or capacity of persons do not fall within the category of judgements enforceable by the provisions of Act VII of 1924, but ancillary effects of a pecuniary nature may be so enforced.
Sections 826-828 provide for the enforcement of foreign judgement in Malta by way of writ of summons. According to the dicta in Pace v. Camilleri (1903), it appears that in order to enforce a foreign judgement in Malta one must institute an action upon a writ of summons. Indeed Section 826 of the COCP reads "... upon a writ of summons containing a demand that the enforcement of such judgement be ordered." This shows that the action for the enforcement of a foreign judgement which has become a res judicata is independent from the action upon which the judgement sought to be enforced has emanated. This is evident from the fact that any period of prescription to which the original judgement is subject will not affect the action for enforcement, as well as from the fact that not only may a judgement be sought to be enforced by the person in whose favour it was awarded, but also by the person against whom it was awarded.
During the course of the past 100 years our Courts have repeatedly confirmed the principle that foreign judgements may be enforced in these Islands only after such enforcement has been demanded by a writ of summons, with the pursuing 'giudizio di delibazione' accepting the demand. The local courts considered themselves incapable of granting even 'indirect execution' to a foreign judgement which had not yet gone through the procedure established in Section 826 (F. Lanfranco, The Jurisdiction of the Maltese Courts in the Matter of Enforcement of Foreign Judgements, 1973.)
The case Attard v. Cremona, decided by the Court of Appeal in 1968 concerned a consignment of shoes to be delivered to the representative of Calzaturificio Vesuvio. The plaintiff sued Calzaturificio Vesuvio in Malta claiming he had exclusive representation of the firm in the Maltese Islands, and claiming damages from the defendant, Dr. Cremona, who represented Calzaturificio Vesuvio. The latter responded by suing Attard in the Court of Vicevano in Italy, which Court eventually gave a judgement in favour of Calzaturificio Vesuvio. Calzaturificio Vesuvio then sought to plead the judgement of the Court of Vicefano as part of the action in Malta. Indeed Dr. Cremona claimed that as the matter had been decided upon by a foreign competent court, then that judgement could be used as a valid defence to the lawsuit against Calzaturificcio Vesuvio. The Commercial Court of First Instance accepted the plea of res judicata raised by the defendant, and dismissed the claims of the plaintiff.
The Court of Appeal, however reversed the decision of the Commercial Court and sent the record back to the Court of First Instance. The Court held that the choice of the jurisdiction of Vicefano in the agreement between the parties was to be considered as referring only to disputes which could arise in the terms of that agreement and not with regard to other disputes that could arise between them. The Court held also that once the question of the recognition of the foreign Italian judgement as a res judicata arose in the course of the hearing of the case, the Court of First Instance could proceed to enforce that judgement in terms of Section 827 without the necessity of another independent case being filed as prescribed in Section 826. The Court stated that:
In their turn, the circumstances prescribed by Section 826 will not alone be sufficient to empower our Courts to enforce a foreign judgement. Such a judgement must be intricately examined for any of the circumstances mentioned in Section 827. This examination will be made by the Court ex officio and should not depend on a request being made to that effect by the defendant. It is claimed that in the case of Section 827 (1)(a), the ascertaining of facts which would make the judgement sought to be enforced liable to retrial in Malta under Section 811, render such foreign judgement non-enforceable in Malta.
Section 811 contemplates twelve instances where a new trial may be demanded. No judgement is enforceable if it is obtained by fraud on the basis of the principle that fraus omnia corrumpit - this is a principle upheld by both the 1924 Act and the COCP. It must be noted that the law contemplates fraud practised by one of the parties to the suit against the other, and does not include, as is the case under English law, cases where the Court is itself fraudulent. In the case of service of summons it is important to note that in order to constitute a defect, the writ of summons must not have been served on the party who lost the case in the foreign court and not on any one of the parties to the foreign suit. In both Camilleri v. Mizzi (1952) and Degiorgio v. Zammit (1926) it has been stated that
Where any of the parties to the suit was under a legal incapacity to sue or be sued, the judge must examine the foreign law in order to ascertain whether a person incapable in the enforcing country was in fact capable in the original foreign country, and vice versa. Section 811 (1)(d) is subject to the proviso that a res judicata will not be subject to retrial if the plea of incompetence has been raised and adjudicated upon in the judgement which has become final. The matter is differently treated in the context of a foreign judgement sought to be enforced locally, since the plea a raised before may be raised again. Section 811 also contemplates wrong application of the law, the plea of extra petita, and the plea of ultra petita. Subsection (h) deals with previous judgements, or more specifically where a subsequent judgement is contrary to a previous one which has become a res judicata. F. Lanfranco in his 1973 thesis entitled The Jurisdiction of the Maltese Courts in the Matter of Enforcement of Foreign Judgements states in this regard that
Subsection (j) mentions false evidence and in order for this to constitute a bar to the enforcement of a foreign judgement the declaration of false evidence must be made in a judgement subsequent to the judgement whose enforcement is sought. If given previously, the party who lost the case must have remained unaware of the falsity until after the delivery of the second judgement. Conflicting dispositions, fresh evidence and mistake of fact are dealt with in subsections (i), (k) and (l) respectively.
Difficulty has arisen over the interpretation of Section 827 (1)(b) because while in the case Pace v. Camilleri (1903) the determination of any of the conditions prevailing under Section 742 would have founded the jurisdiction of the Maltese court to enforce a judgement, more recent cases, notably Camilleri v. Mizzi (1952) and Attard v. Cremona (1968) have stated that Section 742 is a 'defect' and precludes enforcement - this variance probably arises from the wording of the law as it stood at the time of each judgement. Indeed,
The Commission is therefore suggesting a redrafting of this particular section. The Commission is also suggesting an amendment in the sense that it is no longer a pre-requisite to enforcement that the local Court ascertains that it has jurisdiction on the merits of the claim."
Arguing from the standpoint of Section 827(3) the Maltese Courts may also refuse to enforce a foreign judgement on the ground that the foreign court was incompetent, (even though such plea had been raised before it and adjudicated upon) because the defendant was not domiciled or resident there, unless he had submitted to the foreign court's jurisdiction voluntarily.
Section 827(1)(c) is very much dependant upon what has been said above with regards to the service of a writ. This is so because the judge must first conduct a search for the law regulating the service of the writ of summons, and having found this law will then examine whether the parties were contumacious according to law. If the conclusion arrived at is that the parties were not contumacious according to the law, a demand for the enforcement of a foreign judgement delivered in these circumstances will be rejected.
On the question whether the rules of natural justice form part of the notion of "public policy" or "internal public law" as contained in Section 827(1)(d), it is held that they do not. Attard v. Cremona held that this subsection
This means that it refers to the effects of a foreign judgement being contrary to public policy and internal public law.
Having thoroughly examined the provisions of Title V of the COCP, and having also referred both to Section 742 and Section 811 one might conclude that indeed it is not impossible that matters settled elsewhere be re-examined as a result of the provisions contained in the above-quoted Title. One must note, however, that Section 811 is listing various instances where a new trial may be demanded due to the fact that the trial of second instances failed in some respect. Thus, there is no provision for a "court of third instance", a form of second appeal, but merely a remedy for the party who has felt that justice has not been done in the decision of second instance and that matters could be rightly settled in a new trial.
(c) 1995, Dr. Katrina Borg-Cardona, LL.D., LTCL.
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