To assist our clients and friends in other jurisdictions, we have identified the questions which are most frequently asked regarding the enforcement of an EU Member State judgment in England and Wales. We are frequently instructed in such matters and have a great deal of experience in progressing cases to the enforcement stage and recovering assets for our clients in respect of a foreign judgment debt. For example, we acted on the recent case of Smith v Huertas  EWHC 3745 in which we successfully defended a claim brought against our client, Mr Xavier Huertas, in which a declaration was sought that a French judgment should not be registered or recognised in England under the 2001 Brussels Regulation. Further details of this case are set out at the end of this note.
Please note that Scotland and Northern Ireland are separate jurisdictions and different rules apply.
This document is intended to provide a first point of reference for current developments in aspects of the law. It should not be relied on as a substitute for professional advice. If you would like to discuss any of the questions in this guide or if you would like to receive more information about any issues regarding litigation in England and Wales, please contact Simon Fitzpatrick, Head of Litigation, or Rebecca Foden, litigation solicitor.
What are the relevant rules on the enforcement of a judgment from EU Member States?
The enforcement of judgments from an EU member state are governed by the following various European instruments:
- The Recast Brussels Regulation (Council Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters): Applies to the enforcement of judgments across the EU but does not yet apply to Denmark.
- The 2001 Brussels Regulation (Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters): Applies to the enforcement of judgments across the EU (including Denmark).
- The European Enforcement Order (EEO) Regulation (Council Regulation (EC) 805/2004 creating a European Enforcement Order for uncontested claims): Applies to all EU countries except Denmark.
- Streamlined procedures: There are certain European ‘streamlined’ procedures which apply to certain types of claim which require enforcement. These are outside the scope of this note, but include: a European order for payment procedure (Council Regulation (EC) 1896/2006) and a European Small Claims Procedure (Council Regulation (EC) 861/2007).
Are there other rules which apply to countries in Europe which are not EU Member States?
Yes, there are other rules which are relevant depending on the state where the judgment originates. This issue is outside of the scope of this note, but in brief, the following rules apply:
- The Brussels Convention (Brussels Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters): Applies to the enforcement of judgments from Gibraltar and certain dependent territories of EU member states.
- The 2007 Lugano Convention (2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters): Applies to the enforcement of judgments as between EU and European Free Trade Association (EFTA) states, (except Liechtenstein) i.e. Iceland, Norway and Switzerland. The enforcement of judgments that pre-date the entry into force of the 2007 Lugano Convention will be governed by the 1988 Lugano Convention. However, there are unlikely to be many such judgments which now require enforcement.
How do I know which rules apply to the enforcement of a judgment from EU Member States?
Which instrument applies will depend on when the proceedings were commenced and whether they were ‘uncontested’ in the court of origin. The relevant principles are set out in respect of each instrument below.
What types of claim do the instruments apply to?
The instruments apply to civil and commercial matters generally. However, there are a number of exceptions that are important to note.
The 2001 Brussels Regulation and the Recast Brussels Regulation do not extend to revenue, customs, administrative matters, personal status, matrimonial matters, wills and succession, insolvency and arbitration.
The Recast Brussels Regulation has some further exceptions, including rights arising from relationships comparable to marriage, and maintenance obligations. Recital 12 sets out the extent of the arbitration exclusion. It also does not apply to the liability of the state for acts and omissions in the exercise of state authority.
When do the European Enforcement Order (EEO) Regulations apply?
If the judgment was made on or after 21 January 2005 and was uncontested (see below) in the court of origin the EEO will apply.
How do the EEO Regulations define an ‘uncontested claim’?
An ‘uncontested claim’ is defined in Article 3 of the Regulations, as follows:
- “the debtor has expressly agreed to it by admission or by means of a settlement which has been approved by a court or concluded before a court in the course of proceedings; or
- the debtor has never objected to it, in compliance with the relevant procedural requirements under the law of the Member State of origin, in the course of the court proceedings; or
- the debtor has not appeared or been represented at a court hearing regarding that claim after having initially objected to the claim in the course of the court proceedings, provided that such conduct amounts to a tacit admission of the claim or of the facts alleged by the creditor under the law of the Member State of origin; or
- the debtor has expressly agreed to it in an authentic instrument.”
What is the procedure under the EEO Regulations?
The EEO introduced a streamlined procedure for enforcing uncontested judgments of a court of a member state in another member state. It is a more simple procedure than the procedures provided for by the 2001 Brussels Regulation and the Recast Brussels Regulation (described below), because no process needs to be served on the debtor, and the defences which can be taken are much more limited.
In summary, there is an application to the court of origin for an EEO certificate. This will be granted if the four conditions in Article 6 are met (click here for the text). Once the judgment has been certified as an EEO judgment it is enforceable in the same way as a judgment of a court in the enforcing state. The certificate does not have to be served on the debtor and the debtor may only find out about it when attempts are made to enforce the judgment. If the debtor considers it has been wrongly granted (because one of the conditions has not been met) his remedy is to apply to the original court for rectification or withdrawal of the certificate.
The procedure for enforcing in England and Wales requires the creditor to lodge certain documents in the court where he wishes to bring enforcement proceedings, such as applying for a writ of control or a third party debt order. The documents are the judgment, the EEO certificate, a translation if necessary, and generally a certificate of the sterling equivalent of the judgment amount. The objections to enforcement which can be taken at this stage are very limited.
When do the Recast Brussels Regulations apply?
If the EEO Regulations do not apply, either the 2001 Brussels Regulation or the Recast Brussels Regulation apply. This is dependent on when proceedings were commenced in the state of origin. If proceedings were commenced on or after 10 January 2015 the enforcement provisions in the Recast Brussels Regulation will apply.
What is the procedure under the Recast Brussels Regulations?
The enforcement provisions in the Recast Brussels Regulation are less time-consuming than the procedure provided for by the 2001 Brussels Regulation (described below).
In summary, the procedure for enforcing in England and Wales requires the creditor to obtain a certificate from the court of origin certifying that the judgment is enforceable and containing details of the judgment, plus information about interest and costs. The creditor must then serve the certificate and judgment on the judgment debtor, and a translation (if requested), before enforcing the judgment. The judgment creditor is then entitled to enforce the foreign judgment as if it were an English judgment.
When do the 2001 Brussels Regulations apply?
The 2001 Brussels Regulations apply if the EEO Regulations do not apply and if the proceedings were commenced before 10 January 2015.
What is the procedure under the Brussels Regulations?
In summary, the judgment creditor must obtain various documents, including a certificate from the court of origin, and apply to High Court of England and Wales, on a without notice basis, for the registration of the judgment.
he creditor must then draw up a registration order and serve it on the debtor. Permission is not required to serve the order out of the jurisdiction. If the judgment debtor considers he has grounds, he may appeal against the granting of registration. The judgment creditor cannot take any enforcement measures (other than protective measures) until the time for appealing has expired, and any appeal has been determined.
Case Note: Smith v Huertas  EWHC 3745
As set out above, Boodle Hatfield recently acted for Mr Huertas in defence of a claim brought against him by Dr Richard Smith in the English High Court in which Dr Smith sought a declaration that a French judgment (“the French Judgment”) should not be recognised or registered in England on the ground that it would be manifestly contrary to public policy. Dr Smith also alleged that the proceedings in France as a whole (both criminal and civil) were contrary to Article 6.1 and /or Article 6.3 of the European Convention on Human Rights and/or a breach of natural justice under English law. He also claimed the French courts were guilty of actual or apparent bias.
The claim was unusual in that it effectively pre-empted Mr Huertas’s application to register the French Judgment as when the claim was issued Mr Huertas had not yet made such an application to the High Court using the procedure as set out above. The claim was dealt with summarily as it was clear that Dr Smith was seeking to review the substance of the French judgment which is not permitted under Article 36 of the 2001 Brussels Regulation. On 21 December 2015, the English Court dismissed Dr Smith’s claim and made a declaration that the French judgment be recognised and enforced in the English courts.
In summary, Mr Justice Cooke found that the complaints raised by Dr Smith could and should have been raised before the French courts or the European Court of Human Rights. He also found that a number of the complaints sought to challenge the substance of the decision of the French courts which is prohibited under Article 36 of the 2001 Brussels Regulation and none of the other grounds raised by Dr Smith even arguably raised matters where evidence at trial could differ from the evidence before him and concluded that he considered Dr Smith’s prospects of success at trial were fanciful.
This was an unusual but important case as it confirmed that it is very difficult to argue that registration of any judgment of a member state would be contrary to public policy in view of the concept of mutual trust in the legal systems of other member states, especially in cases where points could and should have been taken in the original jurisdiction. Further, it reinforces the position that under no circumstances will the English court review a foreign judgment as to its substance in accordance with Article 36 of the 2001 Brussels Regulation.