Enforcement of judgments in the UK (England and Wales): overview

A Q&A guide to enforcement of judgments law in UK (England and Wales).

The Q&A gives a structured overview of key practical issues concerning enforcement of judgments in this jurisdiction, including definitions and preliminary proceedings; applicable regulations/conventions; pending appeals; enforceable judgments; conditions for recognition and enforcement; proper service; public policy; provisional remedies; interest; actual enforcement; enforcing foreign judgments; enforcement proceedings; formalities; and any reform proposals.

This Q&A is part of the Enforcement of Judgments and Arbitral Awards in Commercial Matters Global Guide.

Contents

Enforcement of judgments: domestic and foreign

Definitions and preliminary proceedings

1. What is the definition of judgment in your jurisdiction for the purpose of enforcement proceedings?

Domestic

A judgment or order for the purposes of enforcement includes both money judgments and judgments granting non-monetary relief (including an injunction or a declaration) from a court. It also includes an award from another tribunal where the court has registered or given permission for it to be enforced as a judgment or order of the court (Civil Procedure Rules 1998 (CPR), 70.1(2)(c)).

A party that has the benefit of a judgment is a "judgment creditor" and a party against whom a judgment is made is a "judgment debtor".

International

There are five types of regime for the enforcement of foreign judgments, depending on where the judgment originates:

  • The UK regime: judgments originating from Scotland or Northern Ireland that are distinct jurisdictions from England. A certificate from the court of origin must be registered in England, after which it will have the same effect as an English judgment. This regime is not considered further in this chapter.

  • The European regime: judgments from EU member states and certain European Free Trade Association countries. The European regime is governed by three main instruments, depending on the court of origin:

    • Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation), which applies to all EU member states, except Denmark, where proceedings are commenced on or after 10 January 2015;

    • Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation), which applies to judgments from Denmark and all other EU member states where proceedings were commenced before 10 January 2015;

    • Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2007 (New Lugano Convention), which applies to judgments from Norway, Iceland and Switzerland.

  • The statutory regime: judgments from most commonwealth (and certain other) countries, with the applicable countries and key provisions set out in one of the following enactments:

    • Administration of Justice Act 1920 (1920 Act);

    • Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319) (FJREO).

  • Specific bilateral treaties on enforcement. Where a judgment originated in a country not covered by one of the above regimes, the creditor should check whether a specific bilateral enforcement treaty applies. These specific treaties are not considered further in this chapter.

  • The common law regime: judgments from all countries, including those to which none of the other regimes apply.

"Judgment" is defined as "any judgment given by a foreign court or tribunal, whatever the judgment may be called", and includes (CPR 74.2(c)):

  • A decree.

  • An order.

  • A decision.

  • A writ of execution or a writ of control.

  • The determination of costs by an officer of the court.

However, the class of judgments that are enforceable depends on the regime that applies (see below).

European regime. The Recast Brussels Regulation, the Brussels Regulation and the New Lugano Convention all state that "judgment" means "any judgment given by a court or tribunal whatever a judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses".

As well as money judgments, non-money judgments such as injunctions, interim orders and decrees of specific performance made by a member state court, are also enforceable under the European regime.

Statutory regime. A narrower class of judgments are enforceable under the statutory regime than under the European regime. To be enforceable, a judgment must be made in civil proceedings and must be:

  • Final and conclusive.

  • For a sum of money, but not for taxes, a fine or other penalty.

Only the judgments of superior courts can be enforced under the 1920 Act and only judgments of certain recognised courts under the FJREO.

Common law regime. To be enforceable under the common law, a foreign judgment must be:

  • Final and conclusive.

  • For a sum of money, but not for taxes, a fine or other penalty.

Under the common law regime, the foreign court must be regarded by the law as a court of competent jurisdiction.

 
2. Is it required that a judgment is final and has conclusive effect, or are decisions in preliminary/provisional/interim proceedings recognised and enforceable?

Domestic judgments

Interim orders, such as orders for interim payments, are enforceable even though they are not final.

Foreign judgments

European regime. As well as final and conclusive judgments, the European regime covers the recognition and enforcement of non-money judgments such as injunctions and interim orders made by a member state court.

Statutory regime. The Administration of Justice Act 1920 only covers final and conclusive judgments. The Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319) specifically allows enforcement of interim payment orders.

Common law regime. A judgment must be final and conclusive and must be a judgment on the merits of the action. If the only way to contest the issues in the foreign jurisdiction is to appeal to a higher court, the judgment appealed from is regarded as final and conclusive. If by contrast the judgment can be reopened and reconsidered in the same court, it cannot be said to be final and conclusive. Interim orders are not enforceable.

Applicable regulations/conventions

3. What conventions and regulations is your jurisdiction a contracting party to?

EU Regulations

Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) (replacing Council Regulation (EC) 44/2001) applies.

Conventions and bilateral treaties

The following are applicable:

  • Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation), which is now relevant only in relation to Gibraltar and certain dependent territories of EU member states.

  • Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2007 (New Lugano Convention).

  • There are mutual statutory regimes for the recognition of judgments in place in the majority of Commonwealth territories, including:

    • the Bahamas;

    • Barbados;

    • Bermuda;

    • British Virgin Islands;

    • Cayman Islands;

    • Jamaica;

    • Malaysia;

    • New Zealand;

    • Nigeria;

    • Singapore;

    • Sri Lanka; and

    • many small UK overseas territories.

  • Various other bilateral and multilateral conventions providing for the reciprocal recognition or enforcement of judgments with countries including:

    • Canada;

    • Australia; and

    • Israel.

Enforcement of foreign judgments is possible under common law even where there is no applicable treaty or convention.

 
4. Will enforcement be automatically refused if service of the proceedings did not conform to any applicable requirements of international treaties/regulations?

Domestic

Service of proceedings (or any defects) is dealt with by the court hearing the original claim. However, a party with the benefit of judgment must ensure that their opponent is served with the judgment before enforcing that judgment (Civil Procedure Rules 1998 (CPR), 40.4).

Foreign

The European regime. A judgment of one EU member state is automatically enforceable in other member states and no declaration of enforceability is required (Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation)). However, the creditor seeking enforcement must provide a certificate from the court that granted the judgment confirming various matters regarding the enforceability of the judgment; a creditor seeking registration of a foreign judgment must do the same where the Recast Brussels Regulation does not apply. Where the judgment was given in default of appearance, that certificate must confirm the date on which the claim documents were served on the defendant.

If the defendant challenges enforcement, the enforcing court must refuse recognition of the foreign judgment where the defendant was not served with proceedings in sufficient time and in a manner that enabled him to arrange his defence (Article 45, Recast Brussels Regulation). In deciding this issue, a court looks at function rather than form and considers all relevant circumstances (British Seafood Ltd v Kruk [2008] EWHC 1528 (QB)).

The statutory regime. It is a defence to enforcement that the judgment debtor was not duly served with proceedings in the original court and did not appear. Accordingly, in any ex parte application made by the creditor, the creditor must draw attention to any failure to serve the documents to comply with its duty to provide full and frank disclosure (see Question 25).

Common law regime. It is a defence to enforcement if a foreign court's procedures breached the rules of natural justice. Generally, this includes a requirement that the defendant was given due notice and the opportunity to be heard.

A creditor must address the issue of service in its evidence in support of the claim for recognition of the judgment.

Pending appeals

5. What is the effect of pending appeal proceedings where the decision is granted?

Domestic judgments

A judgment that is final in the court that granted it can be enforced notwithstanding that it is being appealed to a higher court.

Foreign judgments

European regime. A pending appeal is not a ground on which enforcement can be refused if the judgment is already enforceable in the state in which it was granted.

However, an enforcing court can order a stay of any enforcement proceedings pending an appeal in the foreign court (Article 38, Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation); Civil Procedure Rules 1998 (CPR), 74.9.1; Banco Nacional de Commercio Exterior v Empresa de Telecommunicacionnes de Cuba [2007] EWHC 2322 (Comm)).

Statutory regime. If an appeal is pending or is intended to be lodged, the judgment must not be registered (section 9(2)(e), Administration of Justice Act 1920).

By contrast, a foreign judgment is deemed to be final and conclusive notwithstanding that it may be subject to a pending or intended appeal in the foreign court (section 1(3), Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319) (FJREO)). However, the enforcing court can set aside or adjourn registration of the judgment pending the outcome of the appeal (section 5(1), FJREO).

Common law regime. If proceedings are, or may be, subject to an appeal to a higher court, it is likely that a court will stay enforcement proceedings pending that appeal, but this will depend on the circumstances.

Enforceable judgments

6. What types of judgments in commercial matters are enforceable?

Judgments are enforceable as follows:

  • Money judgments are enforceable in both domestic and foreign judgments.

  • Judgments ordering or prohibiting the doing of acts or injunctions are enforceable in domestic and foreign judgments under the European regime but not under the statutory or common law regime.

  • Declaratory judgments are enforceable in domestic and foreign judgments under the European regime but not under the statutory or common law regime (although they are recognised under the common law regime).

  • Default judgments are enforceable in domestic and foreign judgments under the European regime but not under the statutory or common law regime (if there was no submission to the jurisdiction).

  • Judgments made without notice (ex parte) awards are enforceable in domestic and foreign judgments under the European regime (if the order has been served) but not under the statutory or common law regime.

  • Foreign decisions granting provisional measures are enforceable in foreign judgments under the European regime but not under the statutory or common law regime.

  • Other judgments are enforceable in foreign judgments under the European regime (for example, certain insolvency proceedings) but not under the statutory or common law regime.

 
7. Are any class of judgments excluded from recognition and enforcement?

Domestic judgments

No class of judgments are excluded from recognition and enforcement.

Foreign judgments

European regime. Judgments relating to the following are excluded from recognition and enforcement under Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation):

  • Revenue and customs.

  • Administrative matters.

  • Arbitration proceedings.

  • Orders granting recognition to judgments of a non-member state.

  • Orders or injunctions granted without notice to the respondent where the respondent has not been served with the order.

Judgments relating to the following matters are generally enforceable between EU member states but are subject to different enforcement regimes:

  • Matrimonial matters.

  • Wills and succession.

  • Insolvency.

The statutory and common law regimes. Only money judgments are covered.

Conditions for recognition and enforcement

8. What are the conditions to enforce and recognise a judgment?

Domestic judgments

A judgment of a court is immediately enforceable unless it is stayed by order of the court, or the court states that it is not enforceable for a period of time. Unless it is stayed, it will remain enforceable even if it is subject to an appeal.

Limitation period. Enforcement of a domestic judgment is not subject to a limitation period, although delay can be taken into account where the court has a discretion whether or not to grant measures in support of enforcement.

Foreign judgments

For the European regime:

  • Court/arbitral court had jurisdiction. Generally, the enforcing court cannot revisit the merits or the jurisdiction of the original court (however, see Question 9).

  • Defendant had proper notice of the proceedings. Where the defendant did not participate in the proceedings (see Question 4).

  • No incompatibility with public policy. Judgments must be compatible with public policy, although this requirement will be construed narrowly.

  • Reciprocity. Not applicable.

  • No conflicting domestic or foreign judgment exists. Judgments must not conflict with any existing domestic or foreign judgments between the parties (see Question 9).

  • Judgment/award is final as to its effects. Not applicable.

  • Limitation period. A judgment is enforceable in the UK if it would be enforceable in the originating court (for example, Article 41(1), Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation)). The limitation period for enforcing a foreign judgment therefore reflects that of the foreign court.

For the statutory regime:

  • Court/arbitral court had jurisdiction. A foreign judgment is only enforceable under the statutory regime if the original court had international jurisdiction according to English law principles (section 9, Administration of Justice Act 1920 (1920 Act)) (section 4, Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319) (FJREO)). It is insufficient that the original court had jurisdiction according to its own rules.

  • Defendant had proper notice of the proceedings. It is a defence under either statute that the debtor was not duly served with the process of the original court and did not appear.

  • No incompatibility with public policy. Judgments must be compatible with public policy.

  • Reciprocity. Not applicable.

  • No conflicting domestic or foreign judgment exists. Judgments must not conflict with any existing domestic or foreign judgments.

  • Judgment/award is final as to its effects. Yes.

  • Limitation period. Under the 1920 Act, an application for registration must be made within 12 months of the foreign judgment, although this can be extended. Under the FJREO, the limitation period is six years.

  • Other conditions. The judgment cannot have been obtained by fraud (there are subtle distinctions between precisely what this means under the 1920 Act or the FJREO respectively).

For the common law regime:

  • Court/arbitral court had jurisdiction. A foreign judgment is only enforceable under common law if the original court had international jurisdiction according to principles of private international law. It is insufficient that the original court had jurisdiction according to its own rules.

  • Defendant had proper notice of the proceedings. A judgment is not enforceable if the foreign court's procedures breached the rules of natural justice. Generally (but not always) this requires due notice and an opportunity to be heard.

  • No incompatibility with public policy. Judgments must be compatible with public policy.

  • Reciprocity. Not applicable.

  • No conflicting domestic or foreign judgment exists. Judgments must not conflict with any existing domestic or foreign judgments between the parties.

  • Judgment/award is final as to its effects. Yes.

  • Limitation period. The limitation period is six years from the date of the foreign judgment (section 24(1), Limitation Act 1980).

 
9. What are the grounds for refusing recognition and enforcement?

Domestic judgments

Once a judgment has been given it is enforceable, unless it is stayed. If a judgment debtor makes an application to set aside the judgment, the High Court and Court of Appeal can stay the execution of the judgment (section 49(3), Senior Courts Act 1981).

Foreign judgments

European regime. Under Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation), judgments of other EU member states are automatically enforceable in other member states (assuming that they are enforceable in the state of origin). However, whether the applicable European instrument is the Recast Brussels Regulation, Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation) or the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2007 (New Lugano Convention), enforcement can be challenged for any of the following reasons:

  • Enforcement of the judgment would be "manifestly contrary to public policy" (this will be construed narrowly).

  • Where the judgment was given in default of appearance, the defendant was not served with the claim form in sufficient time to prepare his defence.

  • The judgment is irreconcilable with an earlier judgment involving the same cause of action and between the same parties where the earlier judgment is enforceable in the enforcing state.

  • Where the judgment debtor is the policyholder, consumer or employee respectively and the judgment conflicts with rules setting out how jurisdiction is to be determined for:

    • insurance (section 3, Chapter II, Recast Brussels Regulation, section 3, Chapter II, Brussels Regulation or section 3, Chapter II, New Lugano Convention respectively);

    • cosumer (section 4, Chapter II, Recast Brussels Regulation, section 4, Chapter II, Brussels Regulation or section 4, Chapter II, New Lugano Convention respectively);

    • employment matters (section 5, Chapter II, Recast Brussels Regulation only).

  • The judgment conflicts with rules giving exclusive jurisdiction to a particular member state in certain circumstances, such as where the proceedings involve (section 6, Chapter II, Recast Brussels Regulation, section 6, Chapter II, Brussels Regulation or section 6, Chapter II, New Lugano Convention respectively) of:

    • immovable property;

    • the constitution of companies;

    • entries in public registers;

    • the validity of certain IP rights.

  • The judgment is covered by certain agreements with third party states not to recognise certain judgments against their domiciliaries (Article 72, Recast Brussels Regulation; Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation); Article 68, Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2007 (New Lugano Convention)).

Statutory regime. Generally, enforcement can be refused for any of the following reasons (although the detailed provisions of the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319) (FJREO) are not identical and must be referred to):

  • The original court acted without jurisdiction.

  • The judgment debtor was not duly served with process of the original court and did not appear.

  • The judgment was obtained by fraud.

  • Public policy.

  • The dispute is subject of a previous final and conclusive judgment by a court having jurisdiction (under FJREO).

  • The judgment has been wholly satisfied or could not be enforced by execution in the country of the original court.

  • The judgment is a fine or penalty.

The existence of a pending appeal can either prevent enforcement or allow the court to stay enforcement.

Common law regime. Enforcement can be refused for any of the following reasons:

  • The foreign judgment was not final and conclusive.

  • The foreign court did not have jurisdiction.

  • The foreign judgment was obtained by fraud.

  • The foreign judgment contravened the principles of natural or substantial justice.

  • Public policy.

  • Recognition of the foreign judgment is precluded by the Human Rights Act 1998.

  • The foreign judgment is inconsistent with previous final and conclusive judgment by a court having jurisdiction.

  • The judgment is for a fine or penalty (for example, for multiple damages).

Proper service

10. Does the enforcing court review service of the proceedings? Are there any conditions regarding service of the proceedings that must have been satisfied/complied with?

Domestic judgments

An enforcing court will not automatically review service of proceedings, but a party with the benefit of a judgment must ensure that their opponent is served with the judgment (Civil Procedure Rules 1998 (CPR), 40.4).

Foreign judgments

European regime. The court will not automatically review service of proceedings, but enforcement can be challenged if the judgment debtor was not served with the claim form in sufficient time to prepare his defence (see Question 9).

Statutory regime. It is a defence under the statutory regime that a debtor was not duly served with the process of the original court and did not appear, although the precise provisions of the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319) must be referred to.

Common law regime. The court determines whether the foreign court's procedures breached rules of natural justice. Generally, this means that the defendant had due notice and an opportunity to be heard.

Public policy

11. Does public policy include matters of substantive law?

Public policy includes matters of substantive law and is not limited to procedural deficiencies.

 
12. Can the application of a law that is different to that applicable under the choice of law rules of the enforcing court be attacked on the basis of public policy?

The fact that conflicts of laws principles would have resulted in a different law being applied to the dispute than that applied by the foreign court that gave judgment does not, of itself, constitute grounds for denying recognition or enforcement of the foreign judgment on the basis of public policy. However, where a foreign law has been applied instead of mandatory provisions of the law, public policy can prevent recognition or enforcement.

 
13. In what circumstances and against which judgments has the principle of public policy generally been applied?

The principle of public policy is generally construed restrictively by the courts, but it has been applied in respect of:

  • A right to fair trial.

  • Judgments obtained by fraud.

  • Breach of contractual dispute resolution provisions.

Provisional remedies

14. Is it possible to apply for provisional measures from the enforcing court pending the enforcement proceedings?

Domestic judgments

The court can order interim relief or provisional measures in support of enforcement after judgment has been given.

Foreign judgments

The courts can grant provisional measures in support of enforcement of foreign court judgments pending enforcement proceedings in the UK (section 25, Civil Jurisdiction and Judgments Act 1982).

In order to obtain provisional measures in the UK, there must be sufficient jurisdictional link to the jurisdiction. Where there are clearly assets in the jurisdiction or the defendant is resident in the jurisdiction, this should be clear. However, it may be possible to obtain powerful assistance from the court in other situations where the link with the jurisdiction is not so clear. The granting of worldwide freezing orders or receivership orders can be pivotal in an international enforcement strategy.

Interest

15. Is the judgment creditor entitled to interest? If so, on what basis is it calculated?

Domestic judgments

A High Court judgment or order accrues interest at the rate set by the Judgments Act 1838. Interest runs from the date of the judgment or order giving an entitlement to the judgment sum. The rate of interest on judgment debts since April 1993 has been 8% (simple, not compounded).

Foreign judgments

European regime. The extent to which a judgment creditor is entitled to interest depends on whether interest is recoverable on the judgment under the law of the state of origin. If the original judgment carried an entitlement to interest under local law, that interest is recoverable. Once a judgment is registered, the foreign judgment takes effect for the purposes of the accrual of interest, as if it had been a judgment of the English court in which it has been registered.

Statutory regime. If the original judgment carried an entitlement to interest under local law, that interest is recoverable. Once a judgment is registered, the foreign judgment takes effect for the purposes of the accrual of interest, as if it had been a judgment of the English court in which it has been registered.

Common law regime. The extent to which a judgment creditor is entitled to interest depends on whether interest is recoverable on the judgment under the law of the state of origin.

Actual enforcement

16. What is the enforcement procedure when a declaration of enforceability is granted?

Domestic judgments

A judgment creditor has various options for enforcing a judgment, including the following:

  • Taking control of and selling goods located within the jurisdiction. A judgment creditor can apply to take control of and sell goods belonging to the judgment debtor. The application can be without notice and does not require a hearing (see Civil Procedure Rules 1998 (CPR), 83-85).

  • Charging order. An order granting a judgment creditor a beneficial interest over land, securities or certain other types of property. A separate order of sale is needed to allow the judgment creditor to sell the property.

  • Third party debt order. The judgment creditor first applies for an interim order (without notice), preventing the third party from paying the sums due to the debtor. The second stage is a hearing to determine whether or not to grant a final order, compelling the third party to pay the amounts due to the judgment creditor. Whenever the debtor does not have the full legal entitlement to the debt or the court does not have jurisdiction to determine the legal obligations in respect of the debt, a third party debt order will not be possible. Generally, therefore, third party debt orders are not available in relation to future debts, jointly owned debts or foreign debts (see Societe Eram Shipping Co Ltd v Compagnie Internationale de Navigation [2003] UKHL 30).

  • Attachment of earnings order. If the judgment creditor is an individual, he can apply for an order compelling his employer to deduct earnings and pay them to the judgment creditor (section 1, Attachment of Earnings Act 1971).

  • Receivership order. Where enforcement against the debtor's assets would be difficult using the normal enforcement procedures, it may be possible to appoint a court appointed receiver to assist in gathering in the assets of the debtor. This can be a very powerful measure in cross-border situations where there are complex corporate structures, contractual relationships or trusts. In principle, the receiver is appointed and empowered to "stand in the shoes" of the debtor. The receiver can, for example, collect in future revenue streams, manage a business, enforce contractual rights or exercise powers under a trust. (see Masri v Consolidated Contractors International Company SAL & Anor [2008] EWCA Civ 303).

Foreign judgments

After a judgment has been registered in the UK, the judgment creditor has the same options to enforce that judgment against assets within the jurisdiction as it would if the original judgment had been made in the UK.

 
17. Can defendants oppose the enforcement procedure, and if so, on what grounds/defences?

Domestic judgments

Enforcement of UK judgments is primarily a matter for the claimant rather than the state. Particular applications for enforcement against specified assets can be challenged on a number of grounds:

  • To be able to take control of goods or obtain a third party debt order or attachment of earnings order, the judgment debtor must have failed to pay the judgment debt when it fell due. Where a judgment does not state the date by which payment is due, it must be paid within 14 days of that judgment.

  • A judgment debtor is able to oppose either a charging order or a third party debt order, which are subject to the court's discretion, taking into account all of the circumstances and the need to do equity to all parties involved (Roberts Petroleum Ltd v Bernard Kenny [1983] 2 AC 192). Reasons for not granting final orders can include prejudice being caused to a third party.

  • Any party who is the subject of a judgment or order against it can apply for a stay of execution on the ground of matters that have occurred since that judgment or order (Civil Procedure Rules 1998 (CPR), 40.8A), or on certain other grounds where enforcement involves taking control of goods (CPR 83.7).

In practice, disputes often arise over issues such as:

  • The true beneficial owner of the asset.

  • Third parties holding security interests in the assets.

  • Debts not being due or not being capable of being subject to attachment/third party debt orders.

  • Conflict of laws issues.

Foreign judgments

If the judgment debtor has made an application to set aside a registration order, no steps can be taken to enforce the judgment until that application to set aside has been determined (CPR 74.9(1)) (Sindicato Unico De Pescadores De Municipio Miranda Del Estado Zulia v International Oil Pollution Compensation Fund 1992 [2015] EWHC 2117 (QB)).

Otherwise, the grounds for opposing enforcement procedures are the same as for domestic judgments. However, for international enforcement, it is much more likely that jurisdictional and conflicts of laws issues will arise and often proceedings must be coordinated across a number of jurisdictions. Practicalities such as the service of enforcement proceedings internationally can have a very significant impact on the effectiveness of the enforcement strategy.

 

Enforcing foreign judgments

Jurisdiction

18. Is the enforcing court entitled to consider the grounds on which the foreign court assumed jurisdiction (and if so, on what jurisdictional grounds can enforcement be refused)?

European regime

The enforcing court can only consider the jurisdiction of the foreign court to the extent that the judgment is said to conflict with:

  • The rules setting out how jurisdiction is to be determined for insurance, consumer or employment matters (in relation to Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) only) (Article 45(1)(e), Recast Brussels Regulation).

  • The rules giving exclusive jurisdiction to a particular member state where the proceedings involve, for example (Article 45(1)(e), Recast Brussels Regulation):

    • immovable property;

    • the constitution of companies;

    • entries in public registers or the validity of certain intellectual property rights.

  • A contractual arbitration clause (Article 1(2)(d), Recast Brussels Regulation).

See Question 9 for other grounds on which enforcement can be refused.

Statutory and common law regimes

A foreign judgment is only enforceable under the statutory or common law regimes if the foreign court had international jurisdiction according to private international law (see Question 8).

 
19. If the foreign court assumed jurisdiction on the basis of an exorbitant ground of jurisdiction, can the enforcing court review the judgment on that ground?

Exorbitant ground of jurisdiction

European regime. An enforcing court will only consider jurisdiction on the basis of one of the grounds listed in Question 18.

Statutory/common law regimes. A court applies private international law to determine whether a foreign court had jurisdiction (see Question 18). As part of this, a court will refuse to enforce a judgment if the foreign court assumed jurisdiction contrary to a contractual jurisdiction or arbitration agreement (section 32, Civil Jurisdiction and Judgments Act 1982).

Voluntary acknowledgement

Generally, under each of the different enforcement regimes, if the judgment debtor voluntarily submitted to that jurisdiction (for example, by appearing in those proceedings other than to challenge jurisdiction), it will lose the right to challenge recognition or enforcement on the basis that the original court did not have jurisdiction. This will be the case even if the foreign proceedings were brought in breach of a jurisdiction or arbitration agreement (see Spliethoff's Bevrachtingskantoor BV v Bank of China Ltd [2015] EWHC 999).

Enforcement proceedings

20. Is the enforcement of a foreign judgment subject to formal proceedings or simplified procedures?

European regimes

Where Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) applies, a judgment is automatically enforceable in the UK without the need to register it. However, the judgment debtor can apply to challenge enforcement. Where the Recast Brussels Regulation does not apply, a judgment creditor must first apply to register the foreign judgment (see Questions 23 to 28).

Statutory regime

A foreign judgment must be registered in the UK, after which it can be enforced in the same way as a UK judgment. The simplified procedure involves an application for registration, as set out in more detail at Questions 23 to 28.

Common law regime

A judgment creditor must commence fresh proceedings in the UK, using the procedure set out at Questions 23 to 28. Although the proceedings take the form of a normal claim, it is usual for the proceedings to be determined under the simplified "summary judgment" procedure.

 
21. Are applicants required to institute a new action on the judgment in the form of main proceedings instead of making an application for enforcement based on the judgment?

Applicants are not required to institute a new action where the foreign court is based in a country covered by either the European or statutory regimes.

Where the common law regime applies, the process for recognition of a foreign judgment involves commencing a claim for the debt created by the foreign judgment.

 
22. What is the general outline of enforcement proceedings?

Appointing counsel

Applicants are not formally required to appoint lawyers to file an application to register a foreign judgment (or any of the other applications mentioned in this chapter) or commence new proceedings, but in reality the appointment of English lawyers is necessary as foreign lawyers are not entitled to conduct litigation in England.

Where a court hearing is required, the applicant may need to appoint either a barrister or a solicitor with higher rights of audience to conduct the advocacy at the court hearing.

Security for costs

The judgment creditor does not have to provide security for costs as a matter of course.

Any respondent to an application or defendant to a claim in the UK can apply for security of costs from an applicant or defendant. One of the grounds on which security of costs can be ordered is if the applicant or claimant is outside the jurisdiction and outside the states covered by the European regime (Civil Procedure Rules 1998 (CPR), 25.13(2)(a)). The court can decide whether to award security for costs (CPR 25.13(1)(a)) but the court is relatively unlikely to grant security where the defendant has failed to satisfy a foreign judgment.

Jurisdiction and venue

A court has international jurisdiction to decide on matters of enforcement (including whether to grant a declaration of enforceability) where:

  • The assets against which enforcement is sought are located in the jurisdiction.

  • There is some other proper purpose to enforcement in England.

Generally, enforcement proceedings relating to high value judgments proceed in the High Court in London.

Adversarial or without notice (ex parte)

The procedures for enforcing foreign judgments vary depending on the regime that applies. Applications to register foreign judgments (which are applicable under the European regime, unless Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) applies, or under the statutory regime) can be made without notice. Certain applications for enforcement procedures can also be made on notice, but other applications, or stages of applications, must be made on notice (see Question 16).

Timing

Where the Recast Brussels Regulation applies, judgments of other member states are automatically enforceable, but enforcement can be challenged. The timing of enforcement depends on the particular procedure followed: if there is a challenge, the enforcing court can stay enforcement proceedings or impose conditions on enforcement.

Otherwise, where an application for registration for a judgment is required under the European or statutory regime, this can be made without notice and can be dealt with by a High Court "Master" rather than a judge.

It is usually possible to have such an application decided within one or two weeks. However, actual enforcement cannot proceed until the time for challenging registration has expired, or any challenge has been determined. This could take several months particularly where service must be effected outside the jurisdiction.

Where the common law regime applies, the process takes longer. Proceedings must be filed and served on the judgment debtor, which can take some time where they are outside the jurisdiction. However, a claim based on a foreign judgment can usually be disposed of by an expedited "summary judgment" procedure, rather than going to full trial, since the court will not look to re-open the substance of the dispute.

Fees

The current court fee for an application to register a judgment is GBP50.

Where the common law regime applies, and new proceedings need to be issued, the current court fee for issuing a claim will depend on the value of the claim (for claims above GBP10,000, the court fee will be 5% of the amount being claimed, up to a maximum of GBP10,000).

However, these fees are currently the subject of consultations and the up to date position should be checked.

Appeals

European regime. Where the Recast Brussels Regulation applies, the foreign judgment is automatically enforceable (subject to certain formalities). There is no specific time limit for challenging enforcement. However, a judgment debtor must challenge the enforceability of the foreign judgment at the time that any steps are taken to enforce against its assets, otherwise enforcement will proceed.

Where the Recast Brussels Regulation does not apply, and the foreign judgment must be registered locally before it is enforceable, the judgment debtor has one month from service of the order of the enforcing court to appeal that registration (or two months if it is based outside the jurisdiction of the enforcing court).

Statutory regime. Where the statutory regime applies, the judgment debtor can apply to have registration of the judgment set aside within the period specified in the order of the court registering the judgment (this depends on factors such as where the judgment debtor is based and needs to be served with the order). The court's decision on registration can be appealed if the court grants permission to appeal.

Common law regime

As fresh proceedings are needed to obtain a freestanding UK judgment, it is subject to appeal in the same manner as a UK judgment. The court's permission is required to appeal that judgment to a higher court.

 
23. Can the enforcing court review the foreign judgment as to its substance if all formalities were complied with and if the judgment meets all requirements?

Generally, a court will not review the substance of the foreign court judgment under any of the applicable enforcement regimes. However, it may be forced to consider issues relating to the way that the underlying decision was reached in the context of a challenge based on one of the permitted grounds set out in Question 9, such as fraud or public policy.

Formalities

24. What are the documentary requirements for enforcement?

Documentary requirements

European regime. Where registration of a foreign judgment is required (such as where Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) does not apply), the application to register the judgment must be accompanied by:

  • An authenticated copy of the judgment.

  • An English translation of the judgment.

  • A certificate from the foreign court giving details of the judgment and stating that the judgment is enforceable in the state of origin (in the form set out at Annex I to the Recast Brussels Regulation).

Statutory regime

The application must be accompanied by:

  • An authenticated copy of the judgment.

  • An English translation of the judgment.

  • A witness statement in support of the application, setting out certain prescribed information listed in the Civil Procedure Rules 1998 (CPR) (CPR 74.4).

Common law regime

Fresh proceedings must be issued by filing a claim form and statement of case (particulars of claim). The foreign judgment forms part of the evidence in support of that action.

Authentication

Where either the European or the statutory regime applies, the copy of the judgment must be authenticated.

 
25. Is it required to translate the judgments into the language of the State where enforcement is requested?

Translations

Generally, any enforcement proceedings require an English translation of the foreign judgment (Civil Procedure Rules 1998 (CPR), 74.4).

Other languages

No languages are recognised other than English.

Certification

Where Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation) applies, the translation does not need to be certified.

Otherwise, the translation of the foreign judgment must be either certified by a notary public or other qualified person or must be accompanied by written evidence confirming that the translation is accurate.

 
26. What is the format of the application for a declaration of enforceability?

Where an application for a declaration of enforceability is appropriate (see Question 21), it must be made in accordance with the Civil Procedure Rules 1998 (CPR) (CPR 23), using the prescribed form (known as Form N244) and accompanied by the documentary requirements (see Question 24).

Where the common law regime applies, proceedings are commenced using a claim form.

 
27. What information must be included in the application regarding the judgment, the claim as awarded in the judgment, the facts and legal grounds of the case, and that the judgment is no longer appealable?

The procedures regarding recognition and enforcement vary depending on the applicable regime.

Judgment

The application for registration must be supported by a copy of the judgment, translated into English.

Claim as awarded

The application for registration must be supported by a copy of the judgment, translated into English.

Facts and legal grounds

The application for registration does not need to contain details of the facts and legal grounds of the claim but in some cases it will be appropriate to provide information about the grounds of the claim. Where applications are made ex parte, "full and frank" disclosure of facts relevant to the application must be provided.

Appeals

The application for registration does not need to contain details of any appeals, but the certificate from the court of origin or the written evidence in support (as applicable) must state that the judgment is enforceable in the foreign court. Where applications are made ex parte, "full and frank" disclosure of facts relevant to the application must be provided.

 
28. Is it required to convert the value of the judgment into the local currency?

There is no requirement that judgments of the courts are in local currency. Where judgment is ordered to be entered in a foreign currency, the order should state that "it is ordered that the defendant pay the claimant [foreign currency amount] or the Sterling equivalent at the time of payment" (Civil Procedure Rules 1998 (CPR), Practice Direction 40B(10)).

 

Proposals for reform

29. Are any changes to the law currently under consideration or being proposed?

The Hague Convention on Choice of Court Agreements comes into force on 1 October 2015. Contracting states include the UK and all other EU member states apart from Denmark. However, this is not expected to have a significant effect on the recognition and enforcement of foreign judgments in England.

 

Online resources

Legislation.gov.uk

W www.legislation.gov.uk

Description. Official online source of original and revised UK legislation, managed by The National Archives on behalf of the government.

Civil Procedure Rules

W www.justice.gov.uk/courts/procedure-rules/civil/rules

Description. Official online source of the Civil Procedure Rules 1998 and associated practice directions, which set out the procedural code governing civil proceedings in the UK.



Contributor profiles

Andrew Bartlett, Partner

Osborne Clarke

T +44 20 7105 7208
F +44 20 7105 7209
E andrew.bartlett@osborneclarke.com
W www.osborneclarke.com

Professional qualifications. England & Wales, Solicitor-Advocate (Higher Courts, Civil Proceedings)

Areas of practice. International disputes; international enforcement and asset tracing; fraud; jurisdiction challenges.

Recent transactions

Extensive experience of complex international enforcement disputes including:

  • Directing litigation in the UK and 11 different countries (involving over 40 law firms) in relation to the successful enforcement of US$100M claims.

  • Obtaining the first ever worldwide receivership order and developing the law on receiverships in Cayman Islands, Bermuda and England.

  • Highly complex contempt of court proceedings.

  • Norwich Pharmacal proceedings in the Jersey appellate courts.

  • Abuse of process arguments before the Privy Council.

  • Numerous jurisdiction challenges in the appellate courts.

  • Innovative conspiracy proceedings in relation to the non-payment of judgment debts.

  • Over 30 reported judgments in the UK courts.

Professional associations/memberships. Commercial Fraud Lawyers Association; committee member, British Kazakh Law Association.

Daniel Hayward, Senior Associate

Osborne Clarke

T +44 20 7105 7192
F +44 20 7105 7193
E dan.hayward@osborneclarke.com
W www.osborneclarke.com

Professional qualifications. England & Wales, Solicitor

Areas of practice. Digital business; cross-border contract law; fraud; asset-tracing and enforcement related disputes with particular focus on Russia and the CIS.

Recent transactions. Advising international and domestic clients on all aspects of dispute resolution and strategic business risk including High Court litigation and international commercial arbitration.

Languages. Russian

Professional associations/memberships. Russia & CIS Arbitration Network (RCAN); LCIA Young Arbitration Group (YIAG).

Samantha Stinton, Senior Associate

Osborne Clarke

T +44 20 7105 7244
F +44 20 7105 7245
E dan.hayward@osborneclarke.com
W www.osborneclarke.com

Professional qualifications. England & Wales, Solicitor

Areas of practice. Financial services; professional services; energy and utilities.

Recent transactions

  • Advising clients in relation to both court and international arbitration proceedings, particularly in the energy, financial services and professional services sectors.

  • Advising on the detection and prevention of financial crime and conducts corporate investigations and compliance exercises in the areas of fraud, bribery and economic sanctions.

Professional associations/memberships. LCIA Young International Arbitration Group (YIAG); Young Fraud Lawyers Association; London Solicitors Litigation Association.

Alexander Vakil, Associate

Osborne Clarke

T +44 20 7105 7542
F +44 20 7105 7543
E alex.vakil@osborneclarke.com
W www.osborneclarke.com

Professional qualifications. England & Wales, Solicitor

Areas of practice. Litigation; arbitration; financial services; energy and utilities.

Recent transactions. Involved in several high-profile regulatory investigations and has advised clients on compliance with sanctions legislation, particularly in respect of Russia, Ukraine and Iran.


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