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Recognition and enforcement procedure
What is the formal procedure for seeking recognition and enforcement of a foreign judgment?
The procedure for recognition under the Reciprocal Enforcement Ordinance involves registering the foreign judgment, which can be done in the following way:
- The judgment creditor of the foreign judgment should apply ex parte to the Court of First Instance at the Hong Kong High Court;
- The application should be supported by an affidavit and a draft order setting out the basis upon which the requirements under the ordinance are met (see the section on substantive requirements below);
- If the application and other documents are in order, the court will register the foreign judgment;
- The judgment creditor must serve the notice of registration on the judgment debtor;
- The judgment creditor may attempt to set the registration aside (the grounds are set out in the section on substantive requirements below); and
- If the registration is not set aside within the specified time (see below), the judgment creditor may proceed with the enforcement of the registered foreign judgment.
The procedure for recognition under common law is as follows:
- Civil proceedings are started in Hong Kong by way of writ. The writ can be generally endorsed or include a statement of claim setting out the claim of a debt arising from the foreign judgment;
- The writ must be served on the defendant. The plaintiff can apply for default judgment if the defendant either does not state its intention to defend within 14 days, or provide a defence within 28 days; and
- If a judgment (default or otherwise) is obtained, it can be enforced just like any other Hong Kong judgment.
Once the foreign judgment is either registered or successfully sued upon under the common law process, the resulting registered foreign judgment or Hong Kong judgment can be enforced. The procedure for enforcement will vary depending on the type of enforcement desired.
For example, enforcement via garnishee proceedings can be achieved by following the steps below:
- Issuing an ex parte summons supported by an affidavit. The affidavit must state the identity of the garnishee (eg, a bank) in Hong Kong and in what way the garnishee is indebted to the judgment debtor;
- At the first hearing, the court will generally issue a garnishee order to show cause specifying a further hearing date for the garnishee to attend; and
- At the second hearing, the court may make the garnishee order absolute if the garnishee does not attend or does not dispute liability to the judgment debtor.
What is the typical timeframe for the proceedings to grant recognition and enforcement?
In straightforward cases, the application under common law typically take six to 12 months. Under the Reciprocal Enforcement Ordinance, the proceedings, when uncontested, take two to four months to complete.
What fees apply to applications for recognition and enforcement of foreign judgments?
For an application under the ordinance, the court fee is HK$1,045 for an originating ex parte application.
For an application under common law, the court fee is HK$1,045 for sealing a writ of summons in the Court of First Instance.
Must the applicant for recognition and enforcement provide security for costs?
If matters become contested, a judgment creditor may be well advised to take out an additional application for security for costs or an order that interim payment be made in court to safeguard the judgment creditor’s interests pending contested litigation in Hong Kong.
Are decisions on recognition and enforcement subject to appeal?
If recognition of the foreign judgment is unsuccessfully challenged, the judgment debtor may appeal the decision and apply for a stay of execution of the recognised foreign judgment. However, if a stay of execution is not granted, the judgment debtor generally has no standing to challenge any enforcement procedure.
How does the enforcing court address other costs issues arising in relation to the foreign judgment (eg, calculation of interest, exchange rates)?
Calculation of interest An application for registration of a foreign judgment made under the ordinance must specify the amount of the interest, if any, which under the law of the foreign court has become due under the judgment up to the time of registration.
Exchange rate Pursuant to the ordinance, where the foreign judgment is expressed in a foreign currency, it must be converted to Hong Kong dollars as at the date of registration of that judgment.
Enforcement against third parties
To what extent can the courts enforce a foreign judgment against third parties?
Garnishee proceedings are a simple method of enforcement where the judgment debtor is itself the creditor of a third party. The most common example is garnisheeing a judgment debtor’s bank account. Through garnishee proceedings, the obligation of the third party to pay money to the judgment debtor is transformed into an obligation of the third party to pay the money directly to the judgment creditor.
Partial recognition and enforcement
Can the courts grant partial recognition and enforcement of foreign judgments?
Where a foreign judgment contains both matters that can be registered and matters that cannot be registered, the Hong Kong court may register the judgment in respect of only the parts that can be registered.
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