Enforcing English Judgments Overseas: Judgment In Default v Summary Judgment

• Published date: 14 May 2021
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Trials & Appeals & Compensation
• Law Firm: Astraea Group
• Author: Mr Matthew Allan and Robert Bedford

When litigating against overseas based defendants, clients will require advice at the outset not only on the usual issues (such as how long the process will be, what the prospects of success are and how much it will cost) but also on enforcement strategy. It is often essential to identify assets in accessible jurisdictions where English judgments are recognised.

It is not unusual for a defendant to bury its head in the sand when facing litigation, particularly if commenced in a far-off jurisdiction. In these circumstances, it is important to carefully weigh the options available and the most obvious may not always be the best.

Judgment in Default or Summary Judgment?

Once served, a defendant must comply with strict time limits set by the court or risks having judgment in default entered against it.

Ordinarily, claimants ought to be proactive enforcing these deadlines to exert maximum pressure and obtain a quick and low-cost judgment. However, where the defendant is based overseas, this approach can be a mistake and undermine later enforcement. Instead, a claimant may do better to ask the court to carry out a more considered review of the merits on an application for summary judgment.

While straightforward to obtain in the absence of a defence, the risk of a default judgment is that it is a decision based on a technical fault only (i.e., the failure to submit a defence) and does not involve any evaluation of the substance of the claim. Many foreign courts will be reluctant to allow a strictly procedural error to form the basis of enforcement.

Summary judgment is a more involved and costly process, which can provide a defendant with a second bite at the cherry. A court may be more willing to provide additional time to a defendant to respond to an application for summary judgment, even where it has missed earlier deadlines to do so. There is the further risk that a judge will not grant the claimant's desired outcome once the details have been scrutinised. However, summary judgment does involve at least some level of judicial consideration of the facts of the case and may therefore be more widely enforceable.

Recent Developments - Duferco SA v CVG Ferrominera Orinoco CA ¹

The recent judgment of Duferco SA v CVG Ferrominera Orinoco CA relates to exactly this balancing act. The claimant was seeking damages and interest of US$22 million against a state-owned, Venezuelan based mining company which failed to engage with the English court proceedings. The claimant...