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Conditions for recognition and enforcement
Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?
Brussels Regime and Lugano Convention
The Brussels I Recast Regulation and the Brussels I Regulation (together, the ‘Brussels Regime’) and the Lugano Convention on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters 2007 (the Lugano Convention) define 'judgment' broadly, as any judgment given by a court or tribunal of a member state, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court. This therefore includes non-monetary judgments and interim orders – including injunctions – meaning that recognition and enforcement of a broad range of effects is permissible. The grounds for refusing recognition of the judgment are limited and prescribed in the relevant instrument (as outlined in ‘Grounds for refusal’).
Common law By contrast, recognition and enforcement under Irish common law is permissible only in respect of money judgments, meaning that the damages or costs awarded must have been assessed and quantified, or at least be susceptible to a simple arithmetical process. The decision must also be final and conclusive, which means that it must be final and unalterable by the court which pronounced it. Even if an appeal is pending, the judgment may still be considered final and conclusive unless the appeal stays the judgment. For enforcement at common law, the judgment must also have been given by a court of competent jurisdiction, which means that it must have had jurisdiction under Irish conflict of law rules to deliver the final and conclusive judgment in respect of which recognition and enforcement is sought. Further, the Irish court may refuse jurisdiction on the grounds that Ireland is not the appropriate jurisdiction in which to seek enforcement from the perspective of comparative cost and convenience. It may consider whether there is any solid practical benefit to enforcement without which it would be futile (Albaniabeg Ambient ShpK v Enel SpA (2016) IEHC 139). Accordingly, what is capable of enforcement at common law is of far narrower scope. However, the grounds for challenging recognition and enforcement at common law are broader than under the Brussels Regime or the Lugano Convention.
How are foreign judgments subject to appeal treated?
The question of recognition and enforcement is somewhat complicated where an appeal has issued. In practice, Irish Courts are likely to refrain from recognising or enforcing a foreign judgment while it is subject to appeal in the country of origin.
Brussels Regime and Lugano Convention The general position under the Brussels Regime and the Lugano Convention is that the courts have discretion to grant a stay of the proceedings pending determination of the appeal.
Common law For common law enforcement, the position is the same. The court has discretion to decide whether it should grant recognition and enforcement in such circumstances and, if so, it may place a stay on execution pending the outcome of the appeal.
What are the formal and documentary requirements for recognition and enforcement of foreign judgments?
Brussels I Recast Regulation
Under the Brussels I Recast Regulation, there is no special procedure required for recognition of a judgment. Under Article 36 of the Brussels I Recast Regulation, “a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required”. Further, if a judgment is given in a member state and is enforceable in that state, it will be enforceable in other member states without a declaration of enforceability. If another member state wishes to recognise such judgment, it should be enforced under the same conditions as provided for in the member state where the judgment was given. Since no declaration of enforceability is required, when enforcing a judgment a creditor can go straight to the competent enforcement authority in the member state for enforcement.
Under the Brussels I Recast Regulation, in order to enforce a judgment the following is required:
- a copy of the judgment which satisfies conditions necessary to establish its authenticity;
- a standard form certificate issued by the court which granted the judgment; and
- if necessary, a translation of the judgment.
Brussels I Regulation and Lugano Convention Recognition and enforcement under the Brussels I Regulation and the Lugano Convention is provided for under Order 42A of the Rules of the Superior Courts. Under Order 42A an ex parte application grounded on an affidavit, is made to the master of the High Court (addressed below). However, once the proofs required by the Brussels I Regulation and the Lugano Convention are met, the master has no discretion but to grant the order sought.
An application for recognition and enforcement under the Brussels I Regulation or the Lugano Convention is made by the applicant on an ex parte application, grounded on an affidavit. The affidavit should state:
- whether the judgment provides for the payment of a sum, or sums;
- whether interest is recoverable on the judgment or part thereof in accordance with the law of the state in which the judgment was given and, if so:
- the rate of interest;
- the date from which the interest is recoverable; and
- the date on which the interest ceases to accrue.
- the address for service of proceedings on the party making the application and the name and usual address for the person against whom the judgment was given;
- the grounds on which the right to enforce the judgment is vested in the party making the application; and
- as the case may require, to state that the judgment has not been satisfied in whole or in part and the amount that remains unsatisfied.
The affidavit should exhibit:
- the judgment sought to be enforced or a certified or authenticated copy;
- if given in default, a certified document establishing that the party in default was served with enough time to prepare a defence;
- documents which establish that the judgment is enforceable and has been served; and
- translations, if necessary.
Once the necessary proofs are in order, the master of the High Court has no discretion but to make the order sought. Once made, notice of the making of the relevant order is to be served with the order against the party to which it is directed. The notice should contain:
- full particulars of the judgment or decision declared enforceable;
- name and address of the party making the application and address for service;
- the protective measures (if any) granted in respect of the property;
- the right of the person against whom the order is made to appeal to the High Court against the order; and
- the period within which any appeal may be brought.
Common law Under common law, in order for a foreign judgment to be enforced in Ireland it must comply with the following prerequisites:
- The judgment must be for a definite sum and therefore only monetary judgments may be enforced. Moreover, Irish courts will not enforce foreign revenue, penal or other public laws, whether directly or through the recognition of a foreign judgment;
- The judgment must be final and conclusive, which means that it must be final and unalterable by the court that pronounced it. Even if an appeal is pending, the judgment may still be considered final and conclusive, unless the appeal has the effect of staying the judgment; and
- The judgment against the defendant must be given by a court of competent jurisdiction. This means that the foreign court must have had jurisdiction under Irish conflict of law rules to deliver the final and conclusive judgment in respect of which recognition and enforcement is sought. Submission to the jurisdiction of the foreign court by the defendant will usually arise by virtue of a prior agreement to that effect, by participation in the foreign proceedings or through presence in the jurisdiction at the time of the proceedings. The bases of the nationality or allegiance of the defendant, the domicile of the defendant, reciprocity, the cause of action accruing in the foreign country or the possession of property by the defendant in the foreign country are not themselves sufficient for the Irish courts to accept that the foreign courts had jurisdiction.
Further, when dealing with a default judgment, such cases can raise concerns regarding whether:
- the original court had jurisdiction;
- the proceedings were properly served; or
- the defendant was given a proper opportunity to mount a defence.
Where the underlying judgment is under appeal, complications can also arise.
Under common law, an application for leave to issue and serve the proceedings out of the jurisdiction is required to be made to the High Court, usually on an ex parte basis, grounded upon an affidavit. Once the (summary) summons has been issued and served, the plaintiff should issue a motion seeking an order for judgment. As that motion is also grounded on affidavit, the plaintiff will need to put evidence of the originating summons and motion before the court by way of affidavit.
In such cases, an application can subsequently be made by the defendant to set aside service on the grounds that Ireland is not the appropriate jurisdiction in which to seek enforcement from the perspective of comparative cost and convenience (pursuant to Order 11 of the Rules of the Superior Courts). Such jurisdictional challenges are often dealt with as a preliminary issue and any ruling made on such issue is itself subject to an automatic right of appeal. This can add to the costs of such enforcement proceedings and can mean further delay until an ultimate decision on recognition and enforcement is obtained.
The following documents are required to support an application for recognition and enforcement under common law:
- a verified, certified and sealed copy of the judgment;
- an originating writ or summons;
- a grounding affidavit;
- the affidavit must exhibit the sought judgment and a translation of the judgment or any other documents produced which are not in a recognised language of the local court; and
- where judgment has been obtained in default, the affidavit should evidence that the party in default was served with the documents instituting proceedings and refer to the fact that the judgment is enforceable in its originating state.
- proof of service of the judgment if obtained in default; and
- a translation of the judgment, if necessary.
What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?
Brussels Regime and Lugano Convention
The Brussels Regime and the Lugano Convention are prescriptive as to what may be taken into account for recognition and enforcement of judgments subject to those regimes. Requirements which a judgment must satisfy before it can be recognised are noted below (see “What are the formal and documentary requirements for recognition and enforcement of foreign judgments?”).
The Brussels Regime and the Lugano Convention systems are premised on the assumption of a basic minimum standard of adequate process across all member states. While relevant Irish case law is limited, there is a body of persuasive English authority to the effect that under such regimes it is not appropriate for the courts of an enforcing state to carry out a detailed review of whether the processes in the original jurisdiction had involved a fair trial.
The Irish courts will generally not consider the procedural equivalence of the original court's processes when determining proceedings seeking recognition and enforcement of a particular judgment.
Common law At common law the Irish courts have discretion on whether to recognise foreign judgments. The public policy considerations that may be applicable are not closed and it is clear from case law that what may be permissible in another jurisdiction is not necessarily consistent with Irish public policy (eg, Sporting Index Ltd v O'Shea (2015) IEHC 407). Further, in the consideration of natural justice principles, each case will be determined on its own specific facts.
For enforcement at common law, there is no formal need to demonstrate that the proceedings before the original court corresponded to due process in Ireland. However, the extent to which the judgment is contrary to principles of natural justice can be grounds to resist enforcement and a defendant may assert that the foreign process did not accord with such principles.
What is the limitation period for enforcement of a foreign judgment?
Brussels Regime and Lugano Convention
Although the Brussels Regime and the Lugano Convention themselves do not provide for limitation periods, judgments to be recognised and enforced thereunder must generally still be enforceable in the state in which they are given. There is authority from the European Court of Justice (Apostolides v Orams (2009) ECR 1-03571) to the effect that enforceability of a judgment in the member state of origin constitutes a precondition for its enforcement in another member state.
Common law For enforcement at common law, the relevant foreign judgment is deemed to create a contract debt. The limitation period for contractual claims is six years from the date of the judgment debt.
Grounds for refusal
On what grounds can recognition and enforcement be refused?
Brussels Regime and Lugano Convention
Recognition or enforcement of a foreign judgment can be refused by the High Court on the following grounds under the Brussels Regime and the Lugano Convention:
- fraud in procuring the judgment (irrespective of whether fraud has been raised as a defence in the foreign proceedings);
- lack of jurisdiction (of the foreign court or the Irish court);
- it is contrary to Irish public policy;
- it is contrary to the principles of natural justice (eg, the right to be given due notice of the proceedings or an opportunity to be heard by an impartial tribunal); and
- where the judgment is inconsistent with an earlier judgment based on the same cause of action between the same parties.
Common law At common law, the recognition and enforcement of non-European Free Trade Agreement or non-EU judgments can be refused if any of the following exhaustive list of principles are not present:
- the judgment was for a definite sum, final and conclusive;
- the court where the judgment was rendered had jurisdiction;
- the judgment was not obtained by fraud;
- the procedural rules which apply where the judgment was obtained were followed;
- the judgment was not contrary to public policy (natural and constitutional justice);
- the judgment was not inconsistent with an Irish judgment on the same matter;
- the Irish Court had jurisdiction to enforce the judgment; and
- the application to enforce the judgment was brought within the relevant limitation period.
Service of process
To what extent does the enforcing court review the service of process in the original foreign proceedings?
Brussels Regime and Lugano Convention
The Brussels Regime and the Lugano Convention provide that the judgment is not to be recognised if the defendant was not served with the document that instituted the proceedings (or an equivalent document) in sufficient time and in such a way as to enable him or her to arrange his or her defence. However, irregularity of service is unlikely to provide a basis to resist recognition and enforcement if the defendant has been made aware of the proceedings and has failed to take steps in respect thereof when it was possible to do so.
Common law At common law, recognition and enforcement may be refused if the judgment involved is contrary to the principles of natural justice and public policy. Accordingly, in reliance on those grounds, a defendant could seek to resist recognition and enforcement before the Irish court on the basis of the absence of proper service or notice of the proceedings, or the failure of an opportunity to arrange for a defence to be raised.
What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?
Brussels Regime and Lugano Convention
The Irish courts will not allow recognition and enforcement of a foreign judgment under the Brussels Regime or the Lugano Convention, or common law where it is contrary to Irish public policy. Such public policy considerations are not closed and, importantly, what may be permissible in another jurisdiction may not necessarily be consistent with Irish public policy (eg, Sporting Index Ltd, where UK-based gambling was found to be inconsistent with relevant Irish legislation).
The Brussels Regime and the Lugano Convention provide that recognition may be refused where it manifestly contradicts public policy in the member state addressed. Irish case law has confirmed that 'manifestly' is a threshold issue which highlights the exceptional nature of the public policy basis (see Sporting Index Ltd) and other cases stress how the issue involved must be fundamental with regard to the rights of an individual or the public good. Accordingly, the Irish courts will apply a high standard in determining whether an alleged breach of public policy warrants the refusal of recognition on this ground under such regimes.
Common law At common law, also, a judgment which is contrary to the principles of Irish public policy may be refused by an Irish court. Though there is no direct Irish authority regarding the standard applicable to the public policy exception in respect of common law recognition and enforcement, it would be anomalous if the same considerations that applied pursuant to the Brussels Regime and the Lugano Convention did not also apply. In this regard, the most closely analogous case has identified being contrary to public policy as involving “some element of illegality” being “injurious to the public good” and “offensive to the ordinary responsible and fully informed member of the public” (see Brostrum Tankers AB v Factorias Vukano SA (2004) 2 IR 19, addressing the public policy exception to the enforcement of arbitral awards under the New York Convention). Accordingly, in order to invoke the public policy exception to Irish common law enforcement successfully, a defendant has a high threshold to reach.
What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?
Personal Brussels Regime and Lugano Convention The Brussels Regime and the Lugano Convention contain detailed provisions regarding personal jurisdiction which provide for general rules and specific exceptions as to where a party may be sued. Where those jurisdictional rules have been complied with, the enforcing court is bound by the findings of fact in the original judgment.
Common law For common law enforcement, the Irish courts will consider whether the original court had personal jurisdiction consistent with Irish conflict of law rules which require submission to the jurisdiction of the foreign court by the defendant. Under Irish law this will be typically understood as arising by virtue of the defendant’s:
- prior agreement to that effect in a contract;
- presence in the jurisdiction at the time of the proceedings; or
- participation in the foreign proceedings, whether by filing a voluntary appearance without qualification or making a counterclaim in the matter.
Assertion of jurisdiction by a foreign court on the bases of nationality or allegiance of the defendant, the domicile of the defendant, reciprocity, the cause of action accruing in the foreign country or the possession of property by the defendant in the foreign country, may not themselves be sufficient for Irish courts to accept that the foreign court had jurisdiction.
Subject matter Brussels Regime and Lugano Convention Under the Brussels Regime and the Lugano Convention, specific provision is made regarding jurisdiction in respect of the subject matter of certain disputes, such as insurance, consumer contracts and employment contracts. Further, there are particular categories of dispute in respect of which exclusive jurisdiction is conferred by the relevant instruments (eg, proceedings relating to immovable property). Conversely, those instruments identify categories (or the subject matter) of disputes which fall outside the scope of those instruments. Accordingly, a court in Ireland may need to consider the subject-matter jurisdiction of the original court when determining whether recognition and enforcement can be pursued under those regimes.
Common law At common law, if the original court did not have subject-matter jurisdiction, the decision will be unenforceable. However, such issues are likely to arise only where the subject matter of the dispute affects the submission of the defendant to that jurisdiction and will generally be of significance in cases dealing with judgments in rem.
Concurrent proceedings and conflicting judgments
How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?
Brussels Regime and Lugano Convention
The Brussels Regime and Lugano Convention aim to avoid conflicting judgments by providing that any court shall, of it its own motion, stay its proceedings in favour of the court first seised. The Brussels I Recast Regulation adds that, where there is an express choice as to jurisdiction, proceedings in other courts must be stayed pending any decision from the courts of the chosen jurisdiction.
A judgment will not be recognisable or enforceable if it is irreconcilable with a judgment given between the same parties in a member state addressed, or with a judgment given in another state (whether an EU member state or elsewhere) between the same parties and same cause of action.
Common law At common law there is no specific authority which identifies the approach of the Irish court to recognition and enforcement of foreign judgments where there is a conflicting judgment involving the same parties. However, based on persuasive English authority, recognition and enforcement could be refused on the basis of a conflicting judgment on the same or similar issue, depending on which judgment has priority. It appears from the persuasive common law authority that the judgments are prioritised in accordance to which was first rendered. Accordingly, a conflicting judgment should be effective only in precluding recognition and enforcement of (another) foreign judgment where the conflicting judgment was first rendered.
There is no specific Irish authority which identifies the approach of the Irish court to the recognition and enforcement of a foreign judgment where there are concurrent proceedings. The existence of concurrent proceedings should have no effect on the recognition and enforcement of a foreign judgment which has priority on the basis of the ‘first in time’ approach.
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