Enforcement Of Foreign Judgements In England

Legal systems are generally limited territorially. However, over

centuries, private international law has developed rules permitting

judgments of one country to be recognised or enforced in other

countries.

Whilst similar rules apply in all constituent parts of the

United Kingdom, we deal below specifically with the rules for

recognition and enforcement of judgments in England &

Wales.

1) WHEN DOES ENFORCEMENT OF A JUDGMENT BECOME AN ISSUE?

A creditor who has a judgment from a foreign court may want to

enforce the judgment in an English court. This may happen for

example, where X has obtained judgment in France against a company

registered in England, but the judgment remains unsatisfied and the

debtor's assets are all located outside France. If there are

assets in England, X will want to secure those assets towards

satisfaction of the judgment. To do so, X would need to enforce the

French judgment in England. Whilst as a matter of procedure,

executing a judgment is the last stage in a dispute, it is crucial

for a party to consider how and where it will recover any judgment

from the other side before any legal proceedings are initiated. It

is also commercially wise for parties to seek expert advice before

signing a contract on which law will apply and if a dispute arises

what courts will deal with the dispute.

In the case above, X should have considered whether it would

have been more cost-effective, speedier and efficient to have

brought proceedings in England, as opposed to France, given that

the assets are located in England.

2) PROCEDURE FOR REGISTRATION OF A FOREIGN JUDGMENT

A foreign judgment is not automatically enforceable in England.

Its registration is dependent on the English court being satisfied

that particular conditions have been met.

The procedure for the registration of foreign judgments is that

the judgment or certified copy, together with a translation into

English of the original judgment if it is in a foreign language, is

lodged with the High Court of Justice in England, together with an

affidavit in support of the application for the judgment to be

registered.

The application is made without notice (ex-parte) by lodging

papers with the Master's Secretary's Department. The

conditions of the applicable Act must be complied with (see 3.1

– 3.3 below). Assuming those conditions are met, an order

will be given for the judgment to be registered. Notice is then

given to the defendant that the judgment has been registered and

that the defendant has 21 days in which to apply to set aside the

registration. The Notice must be served personally on the

defendant. If an application is made there will be a hearing before

the Master in the Queen's Bench Division of the High Court.

It is important to keep in mind that the English rules of

procedure apply when a party is seeking to enforce a foreign

judgment.

3) HOW ARE FOREIGN JUDGMENTS ENFORCED IN ENGLAND?

Foreign judgments may be enforced in the UK in one of three

different ways, as follows:-

1. European Judgments - Judgments of foreign States signatories

   to the Judgments Regulation 2000 (which replaced the Brussels

   Convention on jurisdiction and the enforcement of judgments in

   civil and commercial matters of 1968 for all EU countries save for

   Denmark) and the Lugano Convention which applies to EFTA

   countries;

2. Judgments of Commonwealth States and States with which the UK

   has a bilateral Treaty; and

3. Judgments from courts of foreign States with which there is

   no treaty.

   Once the judgment is registered, or declared enforceable, it is

   treated for the purposes of English law as equivalent to a High

   Court judgment.

   4) JUDGMENTS OF EUROPEAN COUNTRIES

   Judgments of European countries can be registered by a fairly

   straightforward procedure. Notice of Registration is then served on

   the judgment debtor, who has the opportunity to apply to set aside

   the registration, but only on very limited grounds which are set

   out in Art. 27 of the Brussels Regulation.

   The Civil Jurisdiction and Judgments Act 1982, as amended by the

   Civil Jurisdiction and Judgments Order 2001 (SI 2001 No. 3929)

   brings into effect in English law the treaties under which

   judgments of the signatory States of the relevant conventions will

   be enforced. The 10 States which joined the European Union on 1st

   May 2004 are parties to the Judgments Regulation.

   Significantly, under the treaties not only final money

   judgments, but also injunctions, including interlocutory

   injunctions, will be enforced.

   Under the Civil Jurisdiction and Judgments Act 1982 judgments of

   Courts of Member States of the EC may be registered by a procedure

   similar to that under the 1920 or 1933 Act. Article 31 of the

   Conventions States,

   A judgment given in a Contracting State and enforceable in

   that State shall be enforced in another Contracting State when, on

   the application of any interested party, the order for its

   enforcement has been issued there.

   Given that the Convention provides a uniform means of

   ascertaining jurisdiction, once time for applying to set aside

   registration has expired, the judgment can be enforced by the same

   means as an English judgment.

   The Brussels Convention provides for the recognition and

   enforcement of a judgment from one Contracting State in other

   Contracting States.

   Recognition of a foreign judgment given in a Contracting State

   shall be recognised in another Contracting State without any

   special procedure being required. The Convention expressly sets out

   circumstances in which the Court of a State in which recognition is

   sought must not be recognised.

   These are set out in Article 27 of the Brussels Regulation as

   follows:

1. Recognition is contrary to public policy of the State in

   which recognition is sought.

2. Where the judgment was given in default of appearance, if the

   defendant was not duly served with the document which instituted

   the proceedings or an equivalent document in sufficient time to

   enable him to arrange for his defence.

3. If judgment is irreconcilable with a judgment given in a

   dispute between the same parties in the State in which recognition

   is sought.

4. If the Court of the State of origin, in order to arrive at

   its judgment, has decided a preliminary question concerning the

   status of legal capacity of natural persons, rights in property

   arising out of a matrimonial relationship, wills, succession in a

   way that conflicts with a rule of private international law in the

   State in which recognition is sought, unless the same result would

   have been reached by the application of the rules of private

   international law of the State.

5. If the judgment is irreconcilable with an earlier judgment

   given in a non-contracting State involving the same cause of action

   and between the same parties, provided that this latter judgment

   fulfils the conditions necessary for its recognition in the State

   addressed.

   The Convention provides that an application for enforcement may

   only be refused for one of the reasons specified in Art. 27 (see

   above) and Art. 28.

   5) JUDGMENTS OBTAINED IN COMMONWEALTH STATES OR STATES

   WITH WHICH THE UK HAS A BILATERAL TREATY

   Under the Administration of Justice Act 1920 and subsequent

   legislation, judgments obtained in the Superior Courts in many

   parts of Her Majesty's Dominions outside the UK may be

   registered by a similar procedure to that applicable to European

   judgments.

   This Act applies to various countries within the Commonwealth,

   such as New Zealand, Singapore and Zimbabwe. Under the Foreign

   Judgments (Reciprocal Enforcement) Act 1933, judgments obtained in

   the courts of specified foreign countries may also be registered in

   this country. The 1933 Act allows the judgments of higher courts in

   the countries with which the UK has entered into bilateral treaties

   to be enforced by registration. The States falling under this Act

   include Australia, Canada, Guernsey and India.

   Registration of a judgment pursuant to the 1933 Act will be set

   aside if the court is satisfied:

1. The judgment is not a judgment to which the Act applies or

   was registered in contravention of the provisions of the Act;

   or

2. The courts of the Country of the original court had no

   jurisdiction (according to the English rules of private

   international law) in the circumstances of the case; or

3. The judgment debtor being the defendant in the proceedings in

   the original court did not, (notwithstanding that process may have

   been duly served on him in accordance with the law of the Country

   of the original court), receive notice of those proceedings in

   sufficient time to enable it to defend the proceedings and did not

   appear; or

4. The judgment was obtained by fraud; or

5. The enforcement of the judgment would be contrary to English

   public policy; or

6. The rights under the judgment are not vested in the person by

   whom the application for registration was made.

   (see s.4 of the...