#5093 - Henry V. Geoprosco - Conflict of Laws BCL

Henry v. Geoprosco

Facts

This appeal by the plaintiff from a judgment of Willis J. dated June 25, 1974, raises an important question as to the circumstances in which the English courts will permit a plaintiff, who has obtained a judgment against a defendant in a country to which the Foreign Judgments (Reciprocal Enforcement) Act 1933 does not apply, to enforce that judgment by action against the defendant in the English courts.

By an agreement in writing dated May 27, 1970, and entered into in Calgary between the plaintiff and the defendants, the defendants agreed to employ the plaintiff as a member of an oil well work-over party in the Trucial States. Clause 13 (b) of that agreement was an arbitration clause.

On December 31, 1970, the plaintiff started proceedings against the defendants in the Supreme Court of Alberta. This was done by service of a statement of claim, which is the correct method of instituting proceedings in the Supreme Court of Alberta. Proceedings in that court are not begun by the issue of a writ. The Supreme Court duly gave leave to serve that statement of claim on the defendants outside the jurisdiction. Service was subsequently effected upon the defendants in Jersey.

Defendant’s action in foreign proceedings: The next relevant event was that on June 30, 1972, the defendants served a notice of motion on the plaintiff, seeking an order setting aside the service of the statement of claim on three grounds, and, further, seeking as an alternative fourth ground a stay of the proceedings by reason of the presence of the arbitration clause. It is to be observed that at no time was it argued for the defendants that the Supreme Court of Alberta had no jurisdiction to entertain the action.

Question

The question here was whether the defendant’s appearance before the Canadian court for the purpose of seeking a stay on the ground that there was an arbitration cause amounted to submission to the jurisdiction of that court.

Holding

Taking this view of the decided cases which bind this court, it seems to us that they justify at least the following three propositions: (1) The English courts will not enforce the judgment of a foreign court against a defendant who does not reside within the jurisdiction of that court, has no assets within that jurisdiction and does not appear before that court, even though that court by its own local law has jurisdiction over him. (2) English courts will not enforce the judgment of a foreign court against a defendant who, although he does not reside within the jurisdiction of that court, has assets within that jurisdiction and appears before that court solely to preserve those assets which have been seized by that court. (3) The English courts will enforce the judgment of a foreign court against a defendant over whom that court has jurisdiction by its own local law (even though it does not possess such jurisdiction according to the English rules of conflict of laws) if that defendant voluntarily appears before that foreign court to invite that court in its discretion not to exercise the jurisdiction which it has under its own local law.

Appearance only to protest jurisdiction – not decided

What has, curiously enough, never been finally and authoritatively decided in the English courts is whether where a defendant appears in a foreign court solely to protest against the jurisdiction of that court (whether or not by its own local law that court possesses such jurisdiction) and such protest fails and judgment is then given against him, such appearance under protest amounts to a voluntary...