Bringing a claim for enforcement
Limitation periodsWhat is the limitation period for enforcement of a foreign judgment? When does it commence to run? In what circumstances would the enforcing court consider the statute of limitations of the foreign jurisdiction?
Different limitation periods apply depending on the regime.
EU regime
The various EU instruments do not specify the limitation period, but the judgment must still be enforceable
in the jurisdiction in which it was rendered.
Hague Court Convention 2005
Article 8(3) of the Hague Court Convention 2005 requires that the judgment must be enforceable in the country of origin. As to timing, travaux préparatoires suggest that the judgment can be enforced from the moment it is considered enforceable under the law of the country of origin until the moment when it stops being so considered. Further, article 8(4) specifies that recognition or enforcement may be postponed or refused (without prejudice) if the judgment is still subject to review or the time limit for seeking ordinary review has not expired. What type of review is ‘ordinary’ as opposed to ‘extraordinary’ is a matter of foreign procedural law, but ‘ordinary’ generally connotes appeal, and extraordinary generally connotes cassation.
AJA 1920
Pursuant to section 9(1) of the Administration of Judgments Act 1920 (AJA 1920), the judgment creditor must apply to register the judgment within 12 months of the date of the judgment. Section 9(1) gives the court discretion to allow a longer period. For example, in Ogelegbanwei v President of the Federal Republic of Nigeria [2016] EWHC 8 (QB), proceedings brought to enforce a Nigerian judgment were incorrectly brought under FJA 1933 instead of AJA 1920, but the High Court permitted the claimants to amend their application to proceed under AJA 1920 even though the 12-month period had expired.
FJA 1933
Pursuant to section 2(1) of the Foreign Judgments (Reciprocal Enforcement) Act 1933 (FJA 1933), the judgment creditor must apply to register the judgment within six years from the date of the judgment or, where the judgment has been subject to appeal, from the last judgment in those proceedings.
Common law regime
Section 24(1) of the Limitation Act 1980 provides that an action to enforce a judgment must be brought within six years of the date on which the judgment became enforceable. The point in time when the foreign judgment becomes enforceable is a matter of foreign procedural law.
Types of enforceable orderWhich remedies ordered by a foreign court are enforceable in your jurisdiction?
The common law regime and more dated statutory mechanisms provide for enforcement of only monetary judgments or orders, to the exclusion of interim or injunctive relief. More recent conventional mechanisms provide for enforcement of not only monetary judgments or orders, but also provisional (including protective) measures.
EU regime
Article 2(a) of the Brussels Recast Regulation contains a broad definition of ‘judgment’. Judgment is enforceable regardless of its precise denomination, be it a decree, order, decision, writ of execution, or decision on the determination of costs or expenses by an officer of the court. The judgment includes not only monetary awards, but also provisional, including protective, measures ordered by a competent court. In particular, it includes protective orders aimed at obtaining information or preserving evidence. It excludes measures that are not protective in nature, for example, ordering the hearing of a witness.
Hague Court Convention 2005
Article 4(1) of the Hague Court Convention 2005 defines judgment more narrowly as any decision on the merits, to the exclusion of interim measures of protection. Irrespective of the precise denomination, the term judgment covers a decree, order and determination of costs or expenses by the court, including an officer of the court – provided that the determination relates to a decision on the merits. Article 7 further excludes interim measures from the Convention’s scope.
AJA 1920
AJA 1920 applies to the enforcement of any monetary judgment or order made by a court in any civil proceedings whereby a sum of money is payable. It also applies to enforcement of arbitral awards that have become enforceable in the same manner as judgments at the place of arbitration pursuant to the law of the place of arbitration.
FJA 1933
FJA 1933 applies to the enforcement of monetary judgments in civil and criminal proceedings, for sums of money as compensation or damages, to the exclusion of sums payable in respect of taxes, fines and other penalties. It does cover interim payments, in addition to final and conclusive judgments. FJA 1933 also makes provision for the enforcement of arbitral awards that have become enforceable in the same manner as judgments in the place where they were made.
Common law regime
At common law, the judgment must be for a specific sum of money to be enforceable in the UK. It also must be final and binding in the jurisdiction where it was rendered. Interim awards and injunctive relief are not enforceable at common law.
Competent courtsMust cases seeking enforcement of foreign judgments be brought in a particular court?
Proceedings seeking recognition and enforcement of foreign judgments should be brought before the High Court in England and Wales, the Court of Session in Scotland or the High Court of Northern Ireland, depending on the jurisdiction in which the judgment is sought to be enforced.
Separation of recognition and enforcementTo what extent is the process for obtaining judicial recognition of a foreign judgment separate from the process for enforcement?
Recognition and enforcement are separate processes in the UK. Because a foreign judgment has no direct effect in the UK, it cannot be enforced until it is recognised in the UK. Once the foreign judgment has been recognised, it can be enforced just as any English judgment. Recognition of the foreign judgment gives the judgment creditor access to the full spectrum of coercive measures available in the English legal system.
Enforcement and pitfalls
Enforcement processOnce a foreign judgment is recognised, what is the process for enforcing it in your jurisdiction?
Once a foreign judgment is recognised in England, it can be enforced in the same way as an English judgment. Recognition gives the judgment creditor access to the full range of compulsive mechanisms available in the English legal system. These methods include: disclosure orders compelling the judgment debtor or its banks to disclosure information about the judgment debtor’s financial affairs; ‘gagging’ orders restraining the banks from divulging information about the enforcement measures to the judgment debtor; worldwide freezing orders; charging orders against bank accounts, immovable and movable property; and third-party debt (garnishment) orders requiring third parties to pay to the judgment creditor the sums that they owe to the judgment debtor. These enforcement methods are not limited to the territory of the UK and can be extraterritorial. Famous examples of deployment of English enforcement measures include JSC BTA Bank v Ablyazov and JSC Mezhdunarodniy Promyshlenniy Bank and State Corporation “Deposit Insurance Agency” v Pugachev in which extraterritorial disclosure orders (in combination with contempt orders and gagging orders), search orders, worldwide freezing orders, charging orders over assets and orders to sell assets were used.
PitfallsWhat are the most common pitfalls in seeking recognition or enforcement of a foreign judgment in your jurisdiction?
Foreign litigants aiming to recognise and enforce foreign judgments in England should ensure compliance with due process or natural justice in the foreign proceedings, which fundamentally requires proper service on the defendant and opportunity to be heard. Caution should be exercised with accelerating or taking shortcuts in the foreign proceedings. Foreign litigants should amass proof of compliance with due process or natural justice for use in the English recognition and enforcement proceedings, which will be particularly useful in case of default judgments.
Foreign litigants should also bear in mind that only compensatory as opposed to punitive parts of foreign judgments are enforceable in England. Accordingly, they should either aim at a foreign judgment that only grants compensatory relief or avoid ambiguity between the parts of the judgment that grant compensatory and non-compensatory relief, to enable severability and enforceability of the compensatory part of the judgment in England.
