12KBW I&T Blog – A Practical Guide to Enforcement of Foreign Judgments

In Half 2 of this two-part collection on recognition and enforcement of overseas judgments, Alex Cornelius supplies sensible steering on how judgments obtained in overseas courts may be enforced in England and Wales underneath the pre-Brexit European provisions, particular statutory regimes and the widespread legislation.

Half 1 of this collection, contemplating the choice of Kerr J in Olsen v Finansiel Stabilitet A/S [2025] EWHC 42 (KB), which units the backdrop for the problems mentioned on this Half is out there right here.

A Sensible Information to Enforcement of International Judgments

Enforcement of judgments underneath the Judgments Regulation / Brussels Recast

There’ll undoubtedly be only a few instances remaining the place the 2001 Brussels Regulation EC 44/2001 (“the Judgments Regulation”) stays relevant. Any such proceedings would want to have been commenced previous to 10 January 2015. Nonetheless, there could very properly be just a few extra claims but to be concluded that are ruled by the 2012 Brussels (Recast) Regulation EC 1215/2012 (“the Recast Regulation”). This may embrace proceedings which had been commenced in a Member State after 10 January 2015 however previous to 1 January 2021.

The rules relevant underneath the Judgments Regulation (Brussels 1) apply equally to the Recast Regulation (Brussels 1A) with the one distinction relating to enforcement of judgments being the abolition of the exequatur process. As an alternative, the judgment creditor is merely required to supply a duplicate of the judgment and a certificates from the court docket of origin containing some fundamental particulars in regards to the case (Article 42 and Annex 1). The Recast Regulation eliminated the requirement for registration of EU judgments earlier than they are often enforced.

As Kerr J famous in paragraph 88 of Olsen a distinction is to be drawn between enforceability in precept and enforcement in observe. The truth that a judgment can’t be virtually enforced within the state of origin by way of execution doesn’t forestall it being enforceable as a matter of EU legislation.

It could be smart to acquire professional proof on overseas legislation if there may be any doubt in regards to the related limitation interval to make sure that there are not any nasty surprises relating to enforcement.

It’s the outdated CPR 74 that applies to enforcement of EU judgments, and this may be discovered within the 2020 White Guide (or the 2014 White Guide for the relevant CPR 74 when it’s a 2001 Regulation case). The judgment creditor should serve the Annex 1 certificates and a duplicate of the judgment on the judgment debtor after which they’re entitled to implement the judgment as if it had been an English one. It’s for the judgment debtor to then apply for refusal of enforcement in the event that they take into account they’ll set up one of many obtainable defences underneath the Rules. Both occasion can then attraction as of proper in opposition to a call on such an utility.

Enforcement of overseas judgments underneath the widespread legislation

Given the restricted variety of proceedings to which the Brussels regime will now apply, this text wouldn’t be full with out consideration of the process for enforcement of overseas judgments underneath the post-Brexit (or pre-Brussels) regime. Exterior of the Brussels Rules (until a particular statutory regime applies – as to which, see beneath) it’s essential to discuss with the widespread legislation guidelines. Right here the place differs considerably as a result of a overseas judgment can’t be enforced straight in England. As Professor Adrian Briggs KC (Emeritus Professor of Personal Worldwide Legislation, College of Oxford) has mentioned “judicial adjudication is an train of state sovereignty” (Briggs, The Battle of Legal guidelines, fifth Ed. at 112) and state sovereignty typically ends on the border of the state.

As an alternative, it’s the obligation to pay the sum for which judgment has been on condition that types the premise of an motion on the judgment in England (Rubin v Eurofinance [2012] UKSC 46). The ensuing English judgment is what can then be enforced. Alternatively, the overseas judgment could also be relied upon as a defence to an motion or as creating a difficulty estoppel on a matter of legislation or reality in any separate proceedings introduced inside this jurisdiction (The Sennar (No 2) [1985] 1 WLR 490).

The judgment have to be for a particular sum of cash, however not a judgment for taxes or penalties (Authorities of India v Taylor [1955] AC 49) and it have to be ultimate and conclusive on the deserves. Being ultimate merely implies that the judgment can’t be various by the court docket that gave it, and it’ll nonetheless be ultimate even when it may be appealed (Blohn v Desser [1962] 2 QB 116).

The overseas court docket that gave judgment will need to have had jurisdiction in response to English non-public worldwide legislation and that is outlined narrowly to require that the judgment debtor was “current” within the overseas county when proceedings had been commenced or submitted to the jurisdiction (Adams v Cape Industries Plc [1990] Ch 443). Due to this fact, the idea of worldwide jurisdiction is considerably extra restrictive than the jurisdiction English courts afford themselves. 

For an organization to be current in a jurisdiction, Adams establishes that this requires a hard and fast place of work the place the corporate carries outs its personal enterprise or a hard and fast place of work the place a consultant carries out the corporate’s enterprise (not its personal). Be aware that this idea has not been affected by the web as a result of having a web site accessible in a rustic the place orders from customers are accepted doesn’t make an organization current in that nation (Lucasfilm Ltd v Ainsworth [2009] EWCA Civ 1328). 

Submission to the jurisdiction is a factual query decided by English legislation (Rubin v Eurofinance SA [2012] UKSC 46) and requires a celebration to have voluntarily taken half within the overseas proceedings or to have agreed to submit prematurely to the overseas court docket’s jurisdiction. Nonetheless, by advantage of s.33 of the Civil Jurisdiction and Judgments Act 1982 a celebration that seems in proceedings solely to contest jurisdiction just isn’t taken to have submitted to the jurisdiction.

Defences

There are a variety of defences that may be pleaded by a judgment debtor. Not included amongst them are allegations that the overseas court docket made a foul resolution and received the info or the legislation fallacious. As with the previous EU guidelines, it’s not open for the English court docket to evaluate the deserves of the overseas resolution (Godard v Grey (1870) LR6 QB 139).

A overseas judgment may be impeached for fraud, whether or not it’s fraud on the court docket (resembling a celebration forging proof) or fraud by the court docket (resembling a decide receiving a bribe) and it doesn’t matter that this argument was raised and dismissed within the overseas court docket or that there isn’t a new proof obtainable (Owens Financial institution Ltd v Bracco [1992] 2 AC 443).

A judgment debtor can even attempt to argue that it will be opposite to English public coverage to recognise the judgment, however that is very tough to ascertain and there are only a few instances the place this argument has been profitable. For an instance of the sort of info wanted to ascertain the defence, see Kuwait Airways v Iraqi Airways (Nos 4&5) [2002] 2 AC 883 the place it was held to be opposite to English public coverage to recognise an Iraqi decision annexing Kuwait as a result of it was a gross violation of worldwide legislation.

A defence which is said however distinct, as a result of it arises by advantage of main laws, arises the place recognition of the overseas judgment would put the English court docket in breach of the Human Rights Act 1998. That is most definitely to come up if the overseas proceedings resulting in the judgment had been carried out so unfairly that the proper to a good trial underneath Article 6 ECHR was violated. It could possibly apply even when the overseas nation just isn’t a signatory to the Conference, however the breach of Article 6 must be “flagrant” earlier than recognition may very well be refused: Authorities of the USA of America v Montgomery (No.2) [2004] UKHL 37.

One other defence which is tough to untangle from public coverage and the Human Rights Act 1998 is the defence on grounds that the overseas proceedings had been opposite to pure justice. The Courtroom of Attraction in Adams held that this goes past receiving no discover of proceedings or having inadequate time to organize a defence to incorporate any scenario that was opposite to an English court docket’s conception of considerable justice. In that case, the Texan decide had not assessed damages based mostly on the proof for every Claimant however as a substitute decided that the typical restoration must be at a given stage and left it to Claimant counsel to allocate Claimants to bands to find out how a lot they need to obtain. Adams left open the query of whether or not it issues {that a} treatment may very well be sought within the overseas court docket.

Process

Because the judgment creditor is bringing an motion on the overseas judgment they might want to subject and serve proceedings within the regular manner. Most probably, permission to serve out of the jurisdiction will likely be required underneath CPR PD 6B, however there’s a particular gateway for the enforcement of judgments in paragraph 10. Satisfying the Courtroom that England is the right place to carry the declare is unlikely to pose any impediment as there isn’t a requirement that the underlying dispute have any connection to England or that there are even any belongings in England to execute in opposition to: Al Hamed and others v Al Hamed and one other firm [2024] EWHC 2448 (Comm).

If the judgment debtor fails to file a defence or an acknowledgment of service, then the judgment creditor can proceed to use for default judgment within the common manner. If a defence is filed, then the judgment creditor’s greatest guess could be to use for abstract judgment leaving it to the debtor to attempt to argue they’ve an actual prospect of efficiently elevating one of many obtainable defences.

Since an motion on the judgment is being introduced, the judgment creditor should guarantee they don’t fall foul of the six-year limitation interval in s.24 of the Limitation Act 1980.

Particular statutory regimes

When you’ve got obtained a judgment in your favour, then it’s advisable to test whether or not the nation of origin is one to which both of the 2 related statutes applies, every is handled in flip. These are based mostly on the elemental precept of reciprocity the place judgments of overseas courts will solely be recognised if the county the place judgment was given has made reciprocal preparations to offer impact to English judgments. In contrast to the place at widespread legislation, the overseas judgment is enforced straight as if it had been an English judgment as soon as it has been registered. Parliament has determined that overseas judgments that meet the statutory standards are entitled to be enforced straight in England and Wales.

The Administration of Justice Act 1920

A full checklist of nations coated by the Administration of Justice Act 1920 (“the 1920 Act”) may be present in Annex 9 of the King’s Bench Information, however it notably consists of New Zealand, Nigeria, Singapore, the Cayman Islands and Malaysia. The judgment creditor could apply to the Excessive Courtroom for registration inside 12 months of the date of judgment or such longer interval because the court docket could permit.

A judgment is outlined as any judgment or order given or made by a court docket in any civil proceedings the place a sum of cash is made payable: part 12(1), however the Act doesn’t allow registration of a judgment on a judgment (see Strategic Applied sciences PTE Ltd v Procurement Bureau of the Republic of China Ministry of Nationwide Defence [2020] EWCA Civ 1604, the place an attraction was allowed in opposition to the choice to register a Cayman Islands judgment given in a standard legislation motion on a Singaporean judgment).

Registration just isn’t as of proper however discretionary with the Act offering that registration could also be ordered if the court docket thinks it simply and handy to take action: part 9(1). The obtainable defences broadly mirror the widespread legislation strategy such that registration won’t be ordered if the judgment debtor establishes fraud, if judgment was entered in default and the debtor was not served with proceedings, if registration could be opposite to public coverage, if an attraction is pending within the court docket of origin or if the court docket is glad that the judgment debtor is entitled to and does intend to attraction within the court docket of origin: part 9(2). Pure justice just isn’t talked about as a separate defence, however such a breach would little doubt be handled underneath public coverage or it will be concluded that it was not simply or handy to register the judgment.

The truth that registration have to be refused if an attraction is pending may very well be problematic and open to abuse by judgment debtors if the nation of origin has a sluggish civil justice system and the debtor is ready to lengthen the attraction course of by way of delaying techniques. Nonetheless, there isn’t a “entitlement to attraction” if go away is required and an attraction can’t be mentioned to be pending till go away is granted (Tenaga Nasional Bhd v Frazer-Nash Analysis Ltd [2019] 1 WLR 946).

As soon as the judgment has been registered, it takes impact in England as if it had been an English judgment from the date of registration: part 9(3)(a), so it may be enforced in the identical method. The judgment creditor is given a statutory entitlement to recuperate their affordable prices of and incidental to registration: part 9(3)(c)).

One level to pay attention to is that if a judgment creditor brings a standard legislation motion on the judgment after they might have registered it underneath the Act then they might not be entitled to recuperate their prices of that motion until that they had tried however did not get it registered or the court docket orders in any other case: part 9(5). So, if you’re in search of to implement a judgment from one of many nations coated by the Act then be sure registration is your precedence.

Process

Half 74 governs functions for registration and states that an utility for registration have to be made to the Excessive Courtroom and could also be made with out discover (CPR 74.3) It can must be accompanied by written proof exhibiting the judgment or an authenticated copy (an authenticated translation will likely be required if the judgment just isn’t in English) alongside a proof of why the judgment creditor is entitled to implement the judgment and a breakdown of any curiosity recoverable underneath the legislation of the nation of origin: CPR 74.4(1)-(2).  Beneath CPR 74.4(3) the written proof should additionally state that the judgment just isn’t one which can’t be registered underneath s.9 of the Act or is caught by s.5 of the Safety of Buying and selling Curiosity Act 1980 (which prohibits the registration of judgments for quantities arrived at by multiplying the sum assessed as compensation for harm suffered).

If the registration order was obtained with out discover it have to be served on the judgment debtor and comprise a press release of the proper to use to set it apart alongside the interval by which such an utility may be made. No enforcement measures may be taken earlier than the tip of that interval save to protect property: CPR 74.6. If the judgment debtor desires to increase the time interval for making use of to put aside registration they have to apply earlier than that interval expires: CPR 74.7(2). When contemplating a put aside utility the court docket is entitled to conduct a full re-hearing and train its discretion to order registration afresh (Tenagaat [31]).

International Judgments (Reciprocal Enforcement) Act 1933

The International Judgments (Reciprocal Enforcement) Act 1933 (“the 1933 Act”) applies to sure courts in nations to which the Act has been prolonged by bilateral treaty which implies that the main points of which courts it applies to can’t be discovered within the Act itself however reasonably the bilateral treaties and the statutory devices that give impact to them.

The 1933 Act applies to judgments of sure courts in Guernsey, Jersey, the Isle of Man, Australia, Canada (besides Quebec), Israel, India, Pakistan, Suriname, Tonga, Austria, Belgium, France, Germany, Italy, the Netherlands and Norway.

A judgment is outlined by s.11 as a “judgment or order given or made by a court docket in any civil proceedings, or a judgment or order given or made by a court docket in any legal proceedings for the fee of a sum of cash in respect of compensation or damages to an injured occasion” however the width of that definition is then reduce down by s.1(2) and s.1(2)(A), which exclude from the scope of the 1933 Act judgments that aren’t ultimate and conclusive (besides interim funds), judgments for the fee of taxes and fines, judgments on judgments and judgments on attraction from non-recognised courts.

A judgment should not be registered if it has been wholly glad or couldn’t be enforced by execution within the nation of origin: part 2(1). On the latter level, the 1933 Act differs from the Brussels regime the place the truth that a judgment can’t be executed doesn’t imply it’s unenforceable (as mentioned above).

In contrast to the 1920 Act, the court docket is given no discretion to refuse registration on the premise that it will not be simply and handy to take action.

As soon as the judgment has been registered and the judgment debtor has been served with discover of registration, they might apply to have registration put aside on the premise of one of many grounds in s.4 of the 1933 Act.

Registration have to be put aside if  judgment just isn’t one throughout the definition given by the 1933 Act, if the court docket of origin had no jurisdiction, if judgment was obtained by fraud, if implementing the judgment could be opposite to public coverage, if the judgment debtor was not given enough discover to allow them to organize a defence and didn’t seem or if the rights underneath the judgment are usually not vested in the one who utilized for registration. As soon as once more, pure justice just isn’t talked about expressly however little doubt this could be handled underneath public coverage.

Registration could also be put aside if the subject material of the judgment is inconsistent with an earlier judgment given by a court docket with jurisdiction.

Jurisdiction is outlined by s4(2) resembling to make it clear that the statutory regime is aligned with the widespread legislation idea of worldwide jurisdiction reasonably than worrying with whether or not the court docket of origin had jurisdiction underneath its personal legislation. Albeit residence reasonably than presence is the important thing idea and for an organization it will need to have its principal place of work (not only a place of work) within the overseas nation or else an everyday place of work by way of or at which a transaction with which proceedings had been involved was effected.

Importantly, if the 1933 Act applies a judgment creditor should use it pursuant to s.6, which states that no widespread legislation motion may be introduced if registration may very well be sought.

Process

Like with the 1920 Act, the judgment creditor can apply with out discover to the Excessive Courtroom for registration of the judgment underneath CPR 74 attaching the proof required by CPR 74.4 to the appliance. It’s then for the judgment debtor to use to have the registration order put aside in the event that they take into account they’ll set up one of many statutory grounds for doing so.

Pursuant to s.2(1), the judgment creditor has six years from the date of judgment or from the date of the final judgment in attraction proceedings to use to the Excessive Courtroom for registration.

Conclusions

Earlier than deciding what enforcement avenue to pursue ensure you have decided what regime applies. If proceedings had been instituted throughout the EU earlier than midnight on 31 December 2020, then the EU regime remains to be relevant. Do not forget that the judgment have to be enforceable within the state of origin so be careful for limitation, or another restrictions on enforceability within the state of origin.

Exterior of the EU, or for proceedings throughout the EU instituted post-Brexit, take into account whether or not a judgment you might be in search of to implement was obtained in a rustic that’s topic to both the 1920 or 1933 Acts as a result of there are clear prices benefits to registration underneath the 1920 Act and registration underneath the 1933 Act is necessary if relevant.

If you’re required to fall again on the widespread legislation, then keep in mind that the circumstances by which a overseas court docket will likely be thought-about to have had jurisdiction are narrowly outlined and don’t mirror the circumstances by which English courts will assert jurisdiction.