If you have obtained a judgment or court order outside England and Wales, you may wish to enforce it in England or Wales because your debtor has assets there or is located there. Methods of enforcing a judgment depend largely on the country or state of its origin and the nature of the judgment or order.
Countries can be split into one or more of four categories which, in descending order of ease and convenience, are:
- countries to which the European Enforcement Order (EEO) Regulation applies;
- countries which have signed the Brussels Regulation or the Lugano Convention;
- countries with which the UK has bilateral enforcement conventions in place;
- countries for which none of the above apply - notably the USA, Japan and China
This is the method of choice as it enables simple, quick enforcement within the EU. It can be used for money judgments obtained for uncontested claims. It should be used, when possible, in preference to other regimes which take longer and are more complicated.
It can be used if the debtor:
- agreed to the debt, and this has been approved by the originating court in a consent order;
- did not defend the claim at all, so there is a default judgment;
- did not defend the claim in court when the claim was tried.
A real benefit is that the application is made to the originating court rather than in England and Wales by way of completion and provisions of straightforward paperwork, including the judgment concerned. Once the EEO certificate is issued the judgment is treated by courts in England and Wales as if it had been delivered by a court in England and Wales. The usual methods of enforcement can then be used, such as applying for a charging order or an attachment of earnings order.
The Brussels Regulation
The Regulation also applies to all EU countries and provides for relatively straightforward procedures for the mutual recognition and enforcement of EU judgments. Generally, you should only use this method within the EU if the EEO Regulation method is not possible – for example, because you have a judgment resulting from a contested hearing, or if you need to enforce a non-money judgment such as an injunction or order for specific performance.
The Regulation only applies to judgments or court orders in civil or commercial proceedings – not criminal, bankruptcy or insolvency proceedings, or proceedings involving the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession. It also does not apply to arbitration awards, including court orders which give judicial force to an arbitration award. For issues relating to the enforcement of arbitration awards generally, see the Out-Law guide to Best Practice in International Arbitration.
The application must be made in the enforcing state – that is, in England and Wales. You will need to file various documents including the judgment and a certified translation if it was not in English. The exact procedure is governed by the Civil procedure Riles.
As long as certain formalities are fulfilled, the enforcing court in England or Wales should declare the judgment enforceable and not re-examine the case. Like the EEO Regulation method, once the judgment is recognised you still have to go on and take the usual enforcement steps.
There are grounds of appeal. An appeal might be successful if, for example:
- the judgment goes against public policy in England and Wales;
- the judgment is irreconcilable with an earlier judgment given in any other member state involving the same causes of action and between the same parties.
Pending any appeal by the debtor you can, however, take measures to preserve assets in England and Wales.
The Lugano Convention
This governs the enforcement of judgments as between Iceland, Switzerland and Norway; and all pre-2004 EU states plus Poland. Except for Poland, the EU states that joined the EU on 1 May 2004 have not ratified the Lugano Convention.
It contains broadly the same provisions and the procedure is broadly the same as under the Brussels Regulation. However, the enforcing court in England or Wales may of its own volition refuse to recognise and thus enforce a judgment on a number of grounds including:
- public policy;
- whether the debtor had sufficient time to respond to the original claim;
- the judgment is irreconcilable with a judgment given in a dispute between the same parties in England and Wales, regardless of the order in which the conflicting judgments were given.
Other bilateral enforcement arrangements
The main laws in this area are the Administration of Justice Act and the Foreign Judgments (Reciprocal Enforcement) Act. These mainly cover former and current Commonwealth countries, and include Crown states such as the Isle of Man and Jersey.
Broadly speaking, these Acts reflect reciprocal arrangements which streamline the enforcement of judgments obtained in the listed countries in England and Wales. A judgment obtained in one of the countries listed must first be registered in the High Court in England and Wales. It must be final, for a specific sum, not in respect of fines or taxes, not obtained by fraud or in breach of a jurisdiction or arbitration agreement. Together with various other practical requirements, the court must be satisfied that the originating court had jurisdiction to deal with the original claim. This will be satisfied in a number of ways, including if the debtor:
- was resident in that jurisdiction or had its principal place of business, or the place of business through which the relevant transaction was conducted, there;
- agreed to submit to that court's jurisdiction or voluntarily appeared in the proceedings.
Otherwise, the judgment should not be registered. If it has already been registered, it must be set aside if jurisdiction is later challenged by the judgment debtor.
An application to register under the Administration of Justice Act must be made within 12 months of the date of the judgment, but an extension is possible. An application to register under the Foreign Judgments (Reciprocal Enforcement) Act must be made within six years, or where there have been appeal proceedings six years from the date of the last judgment given in those proceedings.
The debtor can apply to set the judgment aside on various grounds under both Acts.
The common law
If a country does not fall under any of the above schemes, you will have to start fresh legal proceedings in England and Wales to enforce a foreign judgment. In effect, you will be suing on the judgment as a debt. You may have to serve the claim outside the jurisdiction, in which case specific rules apply.
Unless, for example, a fraud is alleged there should be no need to re-examine the merits of the case at court so it will often be possible to obtain summary judgment. This is a procedural device allowing the speedy and early hearing of a claim without the need for a trial. Such applications are normally successful and are largely a formality.
However, in some situations the judgment debtor may have a credible challenge to the recognition or enforcement of the original judgment. For example, the judgment must have been given by a court regarded under English law as competent to do so. Note that it does not matter that the foreign court had jurisdiction according to its own law - what matters is that it had jurisdiction according to the rules of English private international law. The debtor must therefore have either been present within the jurisdiction of the foreign court or submitted to its jurisdiction, by voluntary appearance or by contract.
A foreign judgment can only be enforced if it is for a definite sum of money. The England and Wales court will not enforce judgments for taxes or penalties, such as fines - this means that USA-style punitive damages will not be recoverable.
Judgement must be final and conclusive, not provisional. There is a general presumption that a foreign judgment is conclusive but a debtor may seek to challenge it on various grounds, including that it was obtained by fraud or in proceedings which were contrary to natural or substantial justice. The debtor will have to be able to prove these grounds.