The UK and the US have long enjoyed a special - and valuable - relationship. According to the Center for Transatlantic Relations’ most recent report, Transatlantic Economy 2017, the US exported $123.5 billion in goods and services to the UK in 2015, and imported $111.5 billion worth of British goods and services. In the same year, US foreign direct investment in the UK totalled a record $593.0 billion and UK foreign direct investment in the US totalled $483.8 billion. Estimated sales of American affiliates in the UK and British affiliates in the US were worth more than $1.3 trillion, and the UK accounted for 22% of overall global American assets outside the US.
Big numbers and big business then; but where there is business, there will also be disputes. Cross border disputes are inevitably more complex, time-consuming and expensive to resolve. It is not just a question of where to bring proceedings either (knotty though that may be) - potential litigants also need to consider where any judgment will need to be enforced.
Surprisingly perhaps, there is currently no reciprocal agreement in place between the US and the UK for the mutual recognition and enforcement of judgments. It is essential for the parties to understand what this means from the outset, so as to ensure that any judgment obtained can be enforced where it matters, ie where the defendant has readily realisable assets.
This article examines the enforcement of a judgment obtained in the US in the English courts (please note that mention of “England” or the “English” courts is in reference to the legal jurisdiction of England and Wales.)
Enforcement in England
Due to the absence of a reciprocal enforcement agreement, a US judgment can only be enforced in England at common law, by bringing a new action under which the judgment is seen as a simple contractual debt. New proceedings are therefore issued in the English court for payment of the “debt”.
For the court to consider enforcing the debt, it must be satisfied of six elements. The burden of proving that one of these elements has not been satisfied is on the party resisting the enforcement proceedings (ie the judgment debtor).
Required elements for enforcement
- Final and conclusive
The US judgment to be enforced must be final and conclusive in the court which handed down the judgment. If the decision is subject to an appeal, the English court will likely stay the enforcement proceedings pending the outcome of the US appeal. It should also be noted that the judgment cannot be inconsistent with a prior judgment on the same subject matter and between the same parties.
- Ascertainable and definite sum of money
The judgment to be enforced must be for an ascertainable and definite sum of money. So for example, a US judgment that is for a declaration rather than payment of a sum of money cannot be enforced in England. Furthermore, it must not relate to taxes, a fine, or any other form of penalty (usually (but arguably not always) payable to the state).
The English court must be satisfied that the US court had jurisdiction to hear the claim. This will be decided according to English private international law, the starting point for which is the “Dicey Rule” from Dicey, Morris & Collins on the Conflict of Laws, 15th edition, rule 43 (cited with approval by the Supreme Court in Rubin v Eurofinance SA  UKSC 46).
The US court will be considered to have had jurisdiction if the judgment debtor:
- was present in the US at the time proceedings were issued (the burden of proving this will be on the party seeking enforcement); or
- has otherwise submitted to the jurisdiction of the US court (for example through a prior contractual agreement or by having voluntarily appeared in the proceedings other than to dispute jurisdiction).
Parties should also be aware that section 33 of the Civil Jurisdiction and Judgments Act 1982 contains certain steps that do not amount to submission to an overseas court's jurisdiction. In particular, the judgment debtor shall not be regarded as having submitted to the overseas court's jurisdiction if they have only appeared (conditionally or otherwise) in the proceedings for any one or more of these reasons:
- to contest the court's jurisdiction;
- to ask the court to dismiss or stay the proceedings on the ground that the dispute should be submitted to arbitration or to the courts of another country; or
- to protect, or obtain the release of, property seized or threatened with seizure in the proceedings.
The question of whether a party has submitted to jurisdiction is to be inferred from all the facts (Rubin). However, in Golden Endurance Shipping SA v RMA Watanya SA and others  EWHC 2110 (Comm), the Commercial Court held that there was no basis for regarding the determination of that issue as involving an element of discretion. The court has to make a determination as to whether the party has voluntarily appeared in the foreign court (other than as specified in s33(1)), a question of mixed law and fact to which there is a single answer, not exercise its discretion as between a range of permissible answers (para 46).
An English court will refuse to recognise or enforce a judgment obtained by fraud where the judgment would not have been made but for the fraud (Gelley v Shephard  EWCA Civ 1172). This is a rare exception to the general rule that the English courts will not re-open and re-examine the merits of the underlying case. However, in Midtown Acquisitions LP v Essar Global Fund Ltd  EWHC 519 (Comm), the UK High Court held that the conscious and deliberate dishonesty was required in order to make out a defence of fraud to the enforcement of a New York judgment in England. Since the defendant had expressly disavowed any allegation of dishonesty, the defence failed.
- Public policy
An English court will not recognise or enforce a US judgment if to do so would be contrary to English public policy or the European Convention on Human Rights. It is rare that a US court will hand down a judgment that goes against English public policy. One such example, however, are awards that are punitive or penal in nature.
- Natural justice
A judgment will not be enforced if it was awarded in a manner contrary to natural or substantive justice. Arguments on this point most frequently arise in relation to whether the judgment debtor was given sufficient notice of the underlying US proceedings to enable them to defend the claim. In Rubin v Eurofinance SA  UKSC 46 it was held that a judgment obtained in default of appearance was unenforceable. A judgment obtained without one party having a proper opportunity to defend itself could potentially, depending on the facts of the case, be deemed a breach of natural justice rendering the judgment unenforceable. Similarly, the English court might refuse to enforce a judgment where no due service has been made.
That said, the UK courts will look at the individual facts of each case. In Midtown Acquisitions, the defendant argued that the circumstances in which the claimant had obtained its judgment were contrary to natural justice because the defendant had not been given any notice of the proceedings. Although Teare J noted that this was “sufficiently striking to raise the English judicial eyebrow” (para 68), it was apparent that no wool was to be pulled over the judicial eyes. The defendant, a sophisticated commercial party, had signed “affidavits of confession of judgment” which authorised the claimant to enter judgment, thereby effectively waiving the right to notice. The New York judgment had therefore been obtained by a recognised procedure in a sophisticated jurisdiction, which was expressly provided for in New York procedural law and the principles of natural justice had not been breached.
Method of enforcement
If the judgment debtor is located in the US, the first step for the enforcing party on issuing new proceedings will be to apply to the English court for permission to serve the claim form on the judgment debtor out of the jurisdiction. If the judgment debtor has assets in the UK, permission will likely be granted.
It should be noted that the deadlines to file an acknowledgement of service, an admission, or a defence are extended when the defendant is located outside the jurisdiction. If the defendant files an acknowledgement of service, admission or a defence (without first filing an acknowledgement of service), then it must do so no more than 22 days after service of the particulars of claim. If it files an acknowledgement of service, the deadline for then filing a defence is extended to 36 days after service of the particulars of claim.
As mentioned above, the court will not usually reconsider the merits of the underlying judgment, even if it disagrees with it, unless there is a compelling reason to do so. Consequently, the usual approach will be for the claimant under the new proceedings to apply for summary judgment, which the court will usually grant. Summary judgment enables a party to enforce a US judgment in the English courts quickly, without having to go through the hassle and expense of full blown proceedings and a full trial.
Given the “special relationship” between the US and the UK (and the existence of the New York Convention governing enforcement of international arbitration awards), it is surprising that there is still no reciprocal agreement in place between the US and UK to enforce judgments. As a result, the procedure for enforcing a US judgment in the UK is less straightforward (and potentially more expensive) than it might otherwise be. However, these factors are mitigated somewhat by the availability of summary judgment (or judgment in default if no response is forthcoming from the judgment debtor).
It could be that the future holds a new agreement between the US and UK allowing for the reciprocal recognition and enforcement of judgments under a simplified procedure. This must surely have been added to the shopping list for the UK in its post-Brexit negotiations. However for the moment, no such procedure exists and parties seeking to enforce a US judgment against a judgment debtor with assets in the UK (or indeed a UK judgment in the US) would be well advised to seek local advice at an early stage.
This article was published in the International Bar Association’s Litigation Committee newsletter in September 2017.