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Lloyd's Maritime and Commercial Law Quarterly

A CONFLICT OF COMITY IN THE ENFORCEMENT OF JUDGMENTS Adrian Briggs * SAS Institute v World Programming Courts which have given judgment are rarely gruntled to hear that the judgment debtor has failed to pay; they are usually willing to make post-judgment orders to help the judgment creditor. It has always been so; but today there is a palpable sense that the power to grant post-judgment relief is part of what makes a forum attractive in an increasingly competitive world. Of course, where a foreign judgment qualifies for judicial recognition and enforcement in a particular place, measures of enforcement can be obtained directly from the courts of that state. But where the judgment does not or will not meet the requirements for enforcement as a foreign judgment, the original court, and the judgment creditor, will be left to act alone. The question which has arisen most acutely, and which will surely arise again soon, is whether the courts of any other country may interfere with enforcement orders made by the original court: that is to say, restraining, by injunction if need be, the implementation of the original court’s enforcement orders. To ask it another way: is there a right to be not enforced against; and, if there is, how does it arise? The answer is: it all depends. The parties in SAS Institute Inc v World Programming Ltd 1 have been litigating for a decade: the bare essentials are as follows. SAS sued WPL: in England, 2 where it was unsuccessful, and, at about the same time, in North Carolina, where it succeeded on a claim which bore more than a passing resemblance to the one which failed in England. 3 SAS sued to enforce the North Carolina judgment in England, but failed on grounds which included res judicata and abuse of process, 4 public policy 5 and the fact that its judgment was for multiple damages: 6 indeed, it was ordered to repay some of the sums it had obtained by enforcing the judgment overseas. 7 SAS then tried something different. * QC; Professor of Private International Law, University of Oxford. 1. [2020] EWCA Civ 599. 2. [2010] EWHC 1829 (Ch); [2011] RPC 1; appeal dismissed [2013] EWCA Civ 1482; [2014] RPC 8. 3. The proceedings were instituted in January 2010 but proceeded very slowly; judgment was in 2016; and the appeal of WPL was dismissed in 2017. 4. Because of the overlapping nature of the claims. 5. This being derived from the EU Software Directive 91/250/EEC. The point may be better put as an interpretation of the Directive, which meant that it barred enforcement of the judgment. 6. Protection of Trading Interests Act 1980, s.5. 7. [2018] EWHC 3452 (Comm): the order for payment was pursuant to Protection of Trading Interests Act 1980, s.6. 2

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