PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION

Transcription

1 Citation: Society of Lloyd s v. McNeill Date: PESCTD 76 Docket: S-1-GS Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION In the Matter of the Canada-United Kingdom Judgments Recognition Act, R.S.P.E.I. 1988, Cap. C-1; And In the Matter of an Application to Register a Judgment of the English High Court of Justice, Queens Bench Division, Commercial Court, between The Society of Lloyd s, Applicant and Hubert Bernard McNeill, Respondent Before: The Honourable Justice David H. Jenkins (In Chambers) Appearances: Kevin J. Kiley, for the Applicant Robert B. McNeill, for the Respondent Place and Date of Hearing Charlottetown, Prince Edward Island September 2, 2003 Written Submissions Filed September 9, 2003 Place and Date of Judgment Charlottetown, Prince Edward Island September 24, 2003

2 Citation: Society of Lloyd s v. McNeill Date: PESCTD 76 Docket: S-1-GS Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION In the Matter of the Canada-United Kingdom Judgments Recognition Act, R.S.P.E.I. 1988, Cap. C-1; And In the Matter of an Application to Register a Judgment of the English High Court of Justice, Queens Bench Division, Commercial Court, between The Society of Lloyd s, Applicant and Hubert Bernard McNeill, Respondent Prince Edward Island Supreme Court - Trial Division (In Chambers) Before: Jenkins J. Date Heard: September 2, 2003 Date of Judgment: September 24, 2003 (3 pages) CONFLICT OF LAWS: enforcement of foreign judgments - enforcement of postjudgment interest on foreign judgment. STATUTES CONSIDERED: Canada and United Kingdom Reciprocal Recognition and Enforcement of Judgments Act, R.S.P.E.I. 1988, Cap. C-1; Convention for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters; Judgments Act (1838); Judgment Debts (Rate of Interest) Order 1993; Supreme Court Act, R.S.P.E.I. 1988, Cap. S-10. CASES CONSIDERED: Patterson v. Vacation Brokers Inc., (1997) 103 O.A.C. 1 (Ont. C.A.). RULES CONSIDERED: Rules of Court, Province of Prince Edward Island, 1996, Rule 73. Appearances: Kevin J. Kiley, for the Applicant Robert B. McNeill, for the Respondent

3 Jenkins 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, 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, comprised of ^242, principle and ^29, 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, plus postjudgment 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 amounts to $274, [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 postjudgment interest in the Judgments Act (1838). Thereunder, the rate of interest is set

4 Page: 2 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: 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] 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. [8] 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: 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] [9] 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.).

5 Page: 3 [10] 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. [11] 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 postjudgment interest rate in effect from time to time. [12] 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. [13] 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, September 24, 2003 Justice David H. Jenkins