Enforcement of Foreign Judgments Comparative Guide

1 Legal and judicial framework

1.1 Which legislative and regulatory provisions govern the recognition and enforcement of foreign judgments in your jurisdiction?

In England and Wales, a range of rules govern the recognition and enforcement of foreign judgments. Which rules apply will depend on where and when the foreign judgment was obtained.

The recognition and enforcement of judgments obtained in EU Member States is governed by EU rules. The most recent iteration of these rules is the Recast Brussels Regulation (Regulation (EU) 1215/2012), which applies to judgments given in proceedings commenced on or after 10 January 2015. The predecessor to the Recast Brussels Regulation (Regulation (EU) 44/2001) continues to apply to judgments given in proceedings commenced before 10 January 2015. The 1968 Brussels Convention also continues to apply in relation to judgments given in Gibraltar and some dependent territories of EU member states. For judgments obtained in Iceland, Norway and Switzerland (which are not part of the European Union, but are part of the European Free Trade Association (EFTA)), the relevant rules are found in the 2007 Lugano Convention. These rules are broadly the same as those under the 2001 Brussels Regulation. For convenience, this Q&A refers to these rules collectively as the ¡¥EU/EFTA rules¡¦.

In addition to the EU/EFTA rules, the UK has bilateral arrangements with various countries and British overseas territories. These rules are given effect in England and Wales by two statutes.

The Administration of Justice Act 1920 applies to judgments obtained in the superior courts of various commonwealth countries and British overseas territories. These include Anguilla, Antigua and Barbuda, Bahamas, Barbados, Belize, Bermuda, Botswana, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Dominica, Falkland Islands, Fiji, the Gambia, Ghana, Grenada, Guyana, Jamaica, Kenya, Kiribati, Lesotho, Malawi, Malaysia, Mauritius, Montserrat, New Zealand, Nigeria, Papua New Guinea, St Kitts and Nevis, St Helena, St Lucia, St Vincent and the Grenadines, Seychelles, Sierra Leone, Singapore, Solomon Islands, Sri Lanka, Swaziland, Tanzania, Trinidad and Tobago, Turks and Caicos Islands, Tuvalu, Uganda, Zambia and Zimbabwe. The judgment creditor can, if it wishes, bring an action on the judgment under the common law rules instead, but it will not generally obtain its costs of those proceedings unless it has applied unsuccessfully for registration under the 1920 act.

The Foreign Judgments (Reciprocal Enforcement) Act 1933 applies to judgments obtained in Australia, Canada, Guernsey, Jersey, Isle of Man, India, Israel and Pakistan. The 1933 act is extended to each territory by way of a statutory instrument which states the specific courts and territories to which the act applies. It is advisable to check the statutory instrument for the relevant country, as there are some nuances ƒ{ for example, the 1933 act extends to judgments of the Federal Court of Canada and most of the provinces, but not Quebec and Nunavut.

If the judgment does not fall within any of the specific rules outlined above, then the recognition and enforcement of the judgment are governed by the English common law rules. This includes judgments obtained in countries such as Argentina, Brazil, China, Indonesia, Japan, Russia, Saudi Arabia, South Africa, South Korea, Turkey and the United States.

The rules outlined above apply to the recognition and enforcement of judgments in civil and commercial matters. There are separate rules for other types of judgments, such as matrimonial or parental issues or the international carriage of goods; but a detailed consideration of these rules is beyond the scope of this Q&A.

There are specific rules for the enforcement of judgments obtained in one part of the United Kingdom in another part of the United Kingdom. These rules are found in the Civil Jurisdiction and Judgments Act 1982, but are not discussed in detail in this Q&A.

There are specific rules for EU judgments in uncontested claims pursuant to Regulation (EC) No 805/2004 (European enforcement orders). Consideration of these rules is beyond the scope of this Q&A.

The instruments and statutes referred to above set out the substantive rules for the recognition and enforcement of foreign judgments which apply in England and Wales. Where this Q&A explains the procedure for the recognition and enforcement of foreign judgments, it refers to rules in England and Wales which are (save in respect of enforcement under the common law rules) largely set out in the Civil Procedure Rules, Part 74. The rules may be different in Scotland and Northern Ireland.

The rules on the recognition and enforcement of judgments obtained in EU member states will change when the United Kingdom leaves the European Union. This is discussed briefly in question 8.1.

1.2 Which bilateral and multilateral instruments on the recognition and enforcement of foreign judgments have effect in your jurisdiction?

The European Union and European Free Trade Area rules have effect in the United Kingdom as explained in question 1.1. These include The Recast Brussels Regulation (Regulation (EU) 1215/2012), the predecessor Brussels Regulation (Regulation (EU) 44/2001), the 1968 Brussels Convention, and the 2007 Lugano Convention.

The United Kingdom is also party to bilateral agreements with various countries and British overseas territories. These are given effect in the United Kingdom by domestic legislation as explained in question 1.1.

The United Kingdom is also a party to the 2005 Hague Convention on Choice of Court Agreements. At present, this is of limited scope and applies only to judgments obtained in:

Mexico, where the Mexican courts were designated in an exclusive choice of court agreement concluded on or after 1 October 2015; Singapore, where the Singaporean courts were designated in an exclusive choice of court agreement concluded on or after 1 October 2016; and Montenegro, where the Montenegrin courts were designated in an exclusive choice of court agreement concluded on or after 1 September 2018.

1.3 Which courts have jurisdiction to hear applications for the recognition and enforcement of foreign judgments?

Applications for the recognition and enforcement of foreign judgments are dealt with by the Queen's Bench Division of the High Court.

2 Requirements for enforceability

2.1 What types of judgments may be recognised and enforced in your jurisdiction? Are any types of judgments specifically precluded from enforcement?

Non-monetary judgments are capable of recognition and enforcement only if they fall within the EU/European Free Trade Agreement (EFTA) rules or the Hague Convention.

Monetary judgments which are final and conclusive are generally capable of recognition and enforcement in England regardless of the jurisdiction in which they are obtained. However, there are specific carve-outs for certain monetary judgments:

Judgments in respect of taxes, fines and penalties cannot be recognised and enforced under the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933 or the common law rules. Section 1(2) of the 1933 act expressly excludes such judgments from its scope. There is no express exclusion in the 1920 act, but recognition and enforcement of a foreign judgment under that act is a matter of the courts' discretion "if in all the circumstances of the case they think it just and convenient" (Section 9(1) of the 1920 act). It is generally accepted that the court will exercise its discretion not to allow the enforcement of judgments in respect of taxes, fines and penalties. Similarly, judgments for multiple damages (ie, damages calculated by doubling, trebling or otherwise multiplying a sum assessed as compensation) cannot be recognised and enforced under the 1920 act, the 1933 act or the common law rules (Section 5 of the Protection of Trading Interest Act 1980). The Hague Convention allows for recognition and enforcement of a judgment to be refused if and to the extent that it awards exemplary or punitive damages that do not compensate a party for actual loss or harm suffered (Article 11(1) of the Hague Convention). Default judgments are capable of recognition and enforcement if the relevant requirements as to service of the proceedings on the judgment debtor and the jurisdiction of the foreign court are met (see question 5).

Final injunctions are capable of recognition and enforcement only if they fall within the EU/EFTA rules or the Hague Convention.

Interim orders are capable of recognition and enforcement only if they fall within the EU/EFTA rules and even then subject to certain conditions.

2.2 Must a foreign judgment be final and binding before it can be enforced?

Yes. Generally, a foreign judgment must be final and binding before it can be enforced in England. As noted. however, interim orders are capable of recognition and enforcement if they fall within the EU/EFTA rules, subject to certain conditions.

2.3 Is a foreign judgment enforceable if it is subject to appeal in the foreign jurisdiction?

The English courts generally have at least a discretion not to allow a foreign judgment to be recognised and enforced in England if it is subject to appeal in the jurisdiction in which it was obtained. The exact formulation of this principle varies depending on the particular rules that apply.

Under the common law rules, the fact that an appeal is pending in the foreign jurisdiction is not necessarily a bar to an action to enforce the foreign judgment in England. However, the English court may stay the proceedings to enforce the judgment in England if an appeal is pending in the foreign jurisdiction (eg, see Scott v Pilkington (1862) 121 ER 978).

Judgments obtained in 1920 act countries cannot be recognised and enforced in England if the judgment debtor satisfies the court either that an appeal is pending or that it is...