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Public Policy in the Cayman Islands: Driving a Cart and (Unruly) Horses Through the Recognition Legislation
Published online by Cambridge University Press: 17 January 2008
Extract
Resort to public policy in order to impugn a foreign judgment or to negate the effects of the application of foreign law has correctly been given a narrow compass by the English courts. In the sphere of common law choice of law rules in contract and tort this approach has been encouraged by the in-built forum bias of the rules themselves which reduces significantly the need for circumvention of foreign law. At common law a tort, for example, is never actionable in England unless the cause of action is recognised as a tort by English law.1 The common law choice of law rules in contract, ostensibly less parochial, are so open textured however as to leave a judge minded to apply English law rarely without legal justification for doing so. An increase in the resort by English courts to the safety mechanism of public policy is therefore anticipated by most commentators to be a direct result of placing the choice of law rules in contract and tort on a statutory footing, respectively, by the Contracts (Applicable Law) Act 1990 and the Private International Law (Miscellaneous Provisions) Act 1995.2 What was achieved openly through an application of the rules themselves may now be arrived at less ingenuously by more indiscriminate resort to the mechanism of public policy. At one extreme a danger exists that public policy may become a badge of partiality resorted to for no better reason than to protect the perceived innate superiority of the forum's rules. At another, a misplaced desire to promote international comity may lead to an exclusion of public policy where it ought properly to be invoked; a balance must be struck. The delicate question of the correct weight to be accorded to the doctrine of public policy recently fell to be determined by the Grand Court of the Cayman Islands3 in Wheeler v. Wheeler.4
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References
1. The Halley (1866) L.R. 2 P.C. 193.Google Scholar
2. As provided for by Art. 16 and s.14(3)(a)(i) respectively. Whilst the 1990 Act abolishes, prospectively, the common law choice of law rules in contract, the 1995 Act, yielding to concerns that the statutory locus delicti rule could compromise press freedoms, excluded defamation from the ambit of the legislation: S.13(1).
3. The local equivalent of the High Court.
4. [1997] 3 C.I.L.R. 362.Google Scholar
5. In the form of a potential legal action against an American attorney whom she had retained and whose imperfect understanding of Cayman law brought about her non-participation in the foreign (North Carolina) proceedings, with a consequential loss of entitlement thereunder.
6. See, e.g., Carter, , “Current Developments” (1993) 42 I.C.L.Q. 1 at 9–10CrossRefGoogle Scholar who, having noted the domestic law origins of the doctrine, continued the metaphor: “Care must be taken to ensure that this animal is not allowed to wreak havoc in international pastures”.
7. Most recently revised in 1997.
8. The 1971 Act has been replaced by Part II Family Law Act 1986, extending both the recognition rules themselves and their sphere of application by placing the recognition of foreign nullity decrees on a statutory footing for the first time.
9. “[A marriage] which is recognised in one country but not in another with the unhappy results which may follow, namely, bigamous remarriage, illegitimate children and uncertainty or confusion over status and property rights”. Per Wood, J in Quazi v. Quazi (1978) 8 Fam. Law 203.Google Scholar
10. Cf. Jordan v. Jordan (1999) The Times, 29 July applying de Dampiere v. de Dampiere [1988] A.C. 92, in holding that where a competent foreign court has dissolved a marriage and has made an order for ancillary relief, in the absence of exceptional circumstances the forum conveniens to deal with all questions of enforcement of that order is the foreign court itself. See, further, the dicta of Pearce J in Igra v. Igra [1951] P 404, infra text at n.46.
11. Since remedied by s.12 Matrimonial and Family Proceedings Act 1984. It was the absence of any such jurisdiction on the part of the Cayman court which was the source of the court's dilemma (and the U.S. attorney's mistaken advice) in Wheeler v. Wheeler [1997] C.I.L.R. 362, repeating the English experience.
12. Quazi v. Quazi [1979] 3 All E.R. 424.
13. Chaudhary v. Chaudhary [1984] 3 All E.R. 1017.
14. The Matrimonial Causes Law, in apparently adopting narrower language than the English provision, has seemingly ruled out the possibility of recognising informal decrees obtained without the need for State intervention (such as a bare talaq), with s.7(1) limiting recognition, inter alia, to orders of a “foreign court tribunal or authority”. The Cayman position remains unclear, however, as earlier in the same sub-section wider language is employed in providing for the recognition of a “decree or order of a foreign court or other legally effective proceeding….” (emphasis added).
15. [1979] 3 All E.R. 424.
16. [1979] 3 All E.R. 897.
17. In holding that the policy of the 1971 Act required the phrase “other proceedings” to extend to all proceedings, apart from those judicial in nature, which were legally effective in the country of execution. Cf the decision of the Court of Appeal in Chaudhary v. Chaudhary, supra n.13.
18. At the same time the decision sounded profound implications for the English court, whose jurisdiction to award ancillary relief could be readily ousted.
19. [1979] 3 All E.R. 897 at 912.
20. Ormrod LJ, in the Court of Appeal, had made a similar plea at [1979] 3 All E.R. 424 at 427.
21. [1984] 3 All E.R. 1017 at 1036.
22. On the facts, a bare talaq was refused recognition on the basis that it did not amount to “judicial or other proceedings” within s.2(a) Recognition of Divorces and Legal Separations Act 1971.
23. Cf., infra, at n.52, Kendall v. Kendall [1977] 3 All E.R. 471, the only English authority to rely solely upon public policy to deny recognition to a foreign divorce decree.
24. Under the 1986 Act this fact would of itself disqualify a non-procedural form of divorce from recognition: s.46(2).
25. This fact was unsuccessfully challenged by the applicant, who maintained that the Cayman Islands' residence was no more than a holiday home.
26. Based upon her two years' ordinary residence in the Cayman Islands immediately prior to the presentation of the petition: s.5 Matrimonial Causes Law.
27. Recognition of all three types of matrimonial decree, including nullity decrees, is now governed in the U.K. by Part II Family Law Act 1986.
28. Namely, habitual residence, nationality or domicile in the foreign sense. Cf. ss.6(1), (2) and (5) Family Law Act 1986.
29. Sections 8(1) and 8(2).
30. It is worthy of note that, unlike the English provision, the Cayman legislation fails to adumbrate the public policy defence in the discrete manner reserved for the defences based upon procedural unfairness. Smellie J nevertheless adopted the English rule of separation: a procedurally fair judgment, such as that of the North Carolina court, could still be denied recognition on the public policy ground. This discretion is repeated in the Family Law Act 1986.
31. Said to be limited to an allegedly unsatisfied interim maintenance order awarded by the Cayman court (worth approximately U.S.$3,000 per month).
32. Limited to property acquired by the parties during the subsistence of the marriage with funds earned or acquired during the marriage.
33. In order to meet the contention that the applicant had been overly precipitous in discontinuing the ancillary proceedings once the petition had been granted, he instituted fresh such proceedings to allow the respondent the opportunity to assert a claim for distribution of matrimonial property. The respondent declined the opportunity to do so, acting on the advice of H that the cost of litigating would be likely to outstrip any benefits which she could expect to receive from the proceedings. Reactivating the ancillary proceedings had no effect on the respondent's ability to claim maintenance, which was lost forever upon the conclusion of the main proceedings.
34. [1995] 1 All E.R. 472.
35. [1979] 3 All E.R. 424 at 438. To similar effect, see the dicta of Lane J in Joyce v. Joyce & O'Hare [1979] 2 All E.R. 156 at 171.
36. [1997] C.I.L.R. 362 at 381.
37. Coined by Lane J in Joyce v. Joyce & O'Hare [1979] 2 All E.R. 156 at 171.
38. At [1997] C.I.L.R. 362 at 381.
39. Ibid. at 377.
40. Ibid. at 381.
41. Supra, n.34.
42. Lord Scarman's description in Quazi v. Quazi [1979] 3 All E.R. 897 at 912.
43. In Cayman, legal aid is available in, inter alia, matrimonial matters pursuant to The Legal Aid Law (1999 Revision) and the Legal Aid Rules, 1997. Lord Scarman opined in Quazi v. Quazi (ibid.) that: “[O]ne must ask oneself whether there are not better and cheaper ways of doing justice. I agree with the Court of Appeal that the reform needed is one whereby a resident in the United Kingdom whose overseas divorce (or legal separation) is recognised by our law as valid, should be able to claim a property adjustment or other financial order under the Matrimonial Causes Act 1973”.
44. Noted by Sir Jocelyn Simon in Lepre v. Lepre [1963] 2 All E.R. 49 (at 57) as being “[I]nherently liable to cause hardship and injustice”. In Wheeler, e.g., until the conclusion of the wife's divorce petition before the Cayman courts in the eyes of Cayman law the parties were not free to marry. The reverse, however, was true of North Carolina law.
45. See, contra, the reasoning in Formosa v. Formosa [1962] 3 All E.R. 419 and Chapelle v. Chapelle [1950] 1 All E.R. 236.
46. [1951] P. 404 at 412.
47. As in Joyce v. Joyce & O'Hare [1979] 2 All E.R. 156, for example. Cf. Newmarch v. Newmarch [1978] 1 All E.R. 1. Both authorities were relied upon by counsel for the respondent in Wheeler.
48. Lord Denning's term in Formosa v. Formosa [1962] 3 All E.R. 419.
49. In both Formosa v. Formosa [1962] 3 All E.R. 419 and Lepre v. Lepre [1963] 2 All E.R. 49 Maltese petitioners, having gone through ceremonies of marriage in English registry offices with English domiciled women, had subsequently obtained Maltese decrees of nullity, based upon the absence of a Roman Catholic ceremony. The Maltese decrees were denied recognition on the grounds of public policy with Donovan L. J. declaring in Formosa (at 424) that: “[A] case more claimant for the exercise of a just discretion could hardly be conceived…”. Cf. the obiter reasoning of their Lordships in Vervaeke v. Smith [1983] 1 A.C. 145.
50. [1977] 3 All E.R. 471.
51. It is to be noted that the CA's reference to public policy in Chaudhary v. Chaudhary [1984] 3 All E.R. 1017 was obiter, with the actual decision in that case turning upon the definition of “judicial or other proceedings” within the 1971 recognition legislation. See supra n.22. See, contra, the dicta of Smellie J at [1997] C.I.L.R. 362 at 377.
52. A divorce petition had been falsely brought before the Bolivian court in the name of the wife who had signed it not knowing of its true nature. Hollings J ruled that in these circumstances the defences to recognition based upon lack of notice or opportunity to appear were inapposite, given the presence of the wife's name as petitioner in the Bolivian proceedings.
53. [1997] C.I.L.R. 362 at 377.
54. [1979] 2 All E.R. 156.
55. Ibid. at 167.
56. Public policy was very briefly cited (at 171) by Lane J at the end of her judgment as being an additional basis for non-recognition, without discussion.
57. This defence to recognition is now contained in s.51(3)(a)(ii) Family Law Act 1986. Under Cayman law the equivalent provision appears in S.8(2)(b) Matrimonial Causes Law.
58. As in Wheeler, the court in Joyce suffered from an inability to award financial relief consequent upon a foreign decree. Given the husband's record of non-compliance, it is unsurprising that Lane J made no reference to this issue notwithstanding the topicality of the point in the aftermath of Wood J's recent ruling in Quazi v. Quazi.
59. [1979] 2 All E.R. 156 at 169. See, contra, the dicta of Pearce J in Igra v. Igra [1951] P 404 at 412, supra n.46.
60. The advice of the American attorney to Mrs Wheeler was that the cost of litigating in the U.S. action would present the risk of the wife ending up with a deficit, since any award she could expect to receive from the U.S. court would be likely to be small.
61. Although in each case there were allegations by the respondent of each husband's failure to honour his maintenance obligations.
62. See, for example, Chaudhary v. Chaudhary, supra n.21.
63. Witness, for example, the divided opinions of the nine judges who heard the petition in Quazi v. Quazi.
64. Quazi v. Quazi [1979] 3 All E.R. 897 at 912 see supra n.43.