Conditions for recognition and enforcement

Enforceable judgments

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)?

The European regime has the widest scope and allows for the enforcement of:

  • monetary judgments;
  • final injunctions;
  • default judgments; and
  • interim orders (subject to certain restrictions) (Article 2(a) of the Recast Brussels Regulation).

The Hague regime allows for the enforcement of:

  • monetary judgments;
  • final injunctions; and
  • default judgments (Article 4(1) of the 2005 Hague Convention on Choice of Court Agreements).

It does not allow for the enforcement of interim orders. Recognition and enforcement may also be refused if, and to the extent that, the judgment awards exemplary or punitive damages which do not compensate a party for actual loss or harm suffered (Article 11(1) of the convention).

The statutory and common law regimes are the most restrictive and allow for the enforcement of monetary judgments only, excluding those in relation to taxes, fines or penalties (Section 12(1) of the Administration of Justice Act 1920 and Section 1(2) of the Foreign Judgments (Reciprocal Enforcement) Act 1933). These regimes do not allow for the enforcement of final injunctions or interim orders.

The UK regime allows for the enforcement of:

  • monetary judgments
  • final injunctions; and
  • default judgments (Section 18 of the Civil Jurisdiction and Judgments Act 1982).

How are foreign judgments subject to appeal treated?

Generally, the English court will not recognise or enforce a foreign judgment while it is subject to appeal in the state of origin.

Under the European regime, the English court can:

  • suspend proceedings in which the parties seek recognition of a foreign judgment if the judgment has been challenged in the state of origin; and
  • suspend enforcement proceedings if enforcement of the foreign judgment has also been suspended in the state of origin (Articles 38 and 44(2) of the Recast Brussels Regulation).

Under the Hague regime, the English court may postpone the recognition or enforcement of a foreign judgment if it is subject to appeal in the state of origin or if the time limit for bringing an appeal has not expired (Article 8(4) of the 2005 Hague Convention on Choice of Court Agreements).

Under the statutory regimes, the English court will not recognise or enforce a foreign judgment if the judgment debtor has satisfied the court that there is an appeal pending or that it is entitled to and intends to appeal (Section 9(2)(e) of the Administration of Justice Act 1920 and Section 5(1) of the Foreign Judgments (Reciprocal Enforcement) Act 1933).

Under the common law regime, a judgment will be enforced only if it is final and conclusive. A judgment that is subject to appeal can still be final and conclusive for these purposes. However, recognition and enforcement of foreign judgments under the common law regime is discretionary and the court may stay any relevant proceedings if the judgment is subject to appeal in the state of origin.

Under the UK regime, the English court will not enforce the foreign judgment unless the period for bringing an appeal against the judgment has expired and no appeal was brought, or an appeal was brought within that period and has been finally disposed of (Schedule 6, Paragraph 3 and Schedule 7, Paragraph 3 of the Civil Jurisdiction and Judgments Act 1982 Act).

Formal requirements

What are the formal and documentary requirements for recognition and enforcement of foreign judgments?

Under the Recast Brussels Regulation, EU judgments obtained in proceedings commenced on or after January 10 2015 are automatically recognised and can be enforced with minimal formal requirements. The judgment creditor must obtain a standard form certificate of enforceability from the court of origin (Article 53 of the regulation). The certificate and the judgment – with a translation if necessary – must be served on the judgment debtor before the first enforcement measure is taken (Article 43). If the judgment creditor commences enforcement proceedings in England and Wales, it must provide the court with a copy of the certificate and the judgment, as well as information on the recoverable costs of the proceedings and the calculation of interest where appropriate (Article 42).

For judgments that fall within the other European regimes, as well as the statutory and Hague regimes, the judgment creditor must make an application for registration of the judgment (Civil Procedure Rule 74.4). The application should be made without notice to a Queen's Bench master and must be supported by:

  • an authenticated copy of the judgment;
  • a certified translation of the judgment, if it is not in English;
  • written evidence in support of the application (Civil Procedure Rule 74.4 sets out the matters that should be dealt with in written evidence, which vary depending on the regime); and
  • for judgments within the European regimes, a standard form certificate of enforceability from the court of origin.

Once the judgment has been registered, the judgment creditor must serve a registration order on the judgment debtor (Civil Procedure Rule 74.6).

Under the common law regime, the judgment can be enforced as a debt only by commencing fresh legal proceedings. Summary judgment can usually be obtained under Civil Procedure Rule 24 on the basis that the judgment debtor has no real prospect of successfully defending the claim.

Under the UK regime, the judgment creditor must obtain from the court of origin a standard form certificate and, in the case of a non-monetary judgment, a certified copy of the judgment. The judgment creditor must make an application to the High Court for registration of the certificate within six months of the certificate being issued (Schedules 6 and 7 of the Civil Jurisdiction and Judgments Act 1982 and Civil Procedure Rules 74.15 and 74.16). Once the certificate has been registered, the judgment debtor must serve the registration order on the judgment debtor.

Substantive requirements

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?

As a general rule, the English courts are not permitted to review the substance or merits of the foreign judgment and will not refuse to enforce it on the basis that it contains an error of fact or law. The European and Hague regimes expressly prohibit the English courts from reviewing the substance or merits of the foreign judgment (Article 52 of the Recast Brussels Regulation and Article 8(2) of the 2005 Hague Convention on Choice of Court Agreements).

Limitation period

What is the limitation period for enforcement of a foreign judgment?

The limitation period for enforcement of a foreign judgment depends on the regime.

Under the European and Hague regimes, there is no limitation period but the judgment must remain enforceable in the state of origin (Article 39 of the Recast Brussels Regulation and Article 8(3) of the 2005 Hague Convention on Choice of Court Agreements).

Under the statutory regimes, the limitation period for judgments falling within the Administration of Justice Act 1920 is 12 months from the date of the judgment (or a longer period as allowed by the court). The limitation period for judgments falling within the Foreign Judgments (Reciprocal Enforcement) Act 1933 is six years from the date of the judgment.

Under the common law regime, the foreign judgment is treated as a contract debt and the usual limitation period of six years applies.

Under the UK regime, an application for registration must be made within six months of the issue of the certificate by the court of origin (Civil Procedure Rules 74.15 and 74.16).

Grounds for refusal

On what grounds can recognition and enforcement be refused?

The grounds for refusing recognition of a judgment vary depending on the regime; however, there are some common grounds (eg, where recognition would be contrary to public policy or where there is an inconsistent judgment which can also be enforced in England and Wales).

Under the European regime, the grounds for refusing to recognise or enforce a judgment are limited (see Article 45 of the Recast Brussels Regulation). Notably, the English court cannot consider the jurisdiction of the court of origin or refuse to recognise a judgment on the basis that it was obtained by fraud. This reflects the principle of mutual trust in the administration of justice in other member states. The English court may refuse to recognise a European judgment on the following grounds:

  • Recognition would be manifestly contrary to public policy in England and Wales;
  • The judgment was given in default of appearance and the defendant was not given sufficient notice of the proceedings. This will not apply if the defendant could have commenced proceedings to challenge the default judgment but failed to do so;
  • The judgment is irreconcilable with either an English judgment given in proceedings between the same parties or an earlier judgment given in another state between the same parties which can be recognised in England and Wales; or
  • The judgment conflicts with certain special rules on jurisdiction contained in the European regimes.

Under the Hague regime, the grounds for refusal are similar to those under the European regimes, with the additional ground for refusal based on fraud. The English court can refuse to recognise a judgment on the following grounds:

  • Recognition would be manifestly incompatible with public policy in England and Wales;
  • The defendant was not given sufficient notice of the proceedings;
  • The judgment is irreconcilable with either an English judgment given in proceedings between the same parties or an earlier judgment given in another state between the same parties which can be recognised in England and Wales;
  • The judgment does not meet the jurisdiction criteria because either the choice of court agreement was null and void under the law of the state of the chosen court or a party lacked capacity to conclude the choice of court agreement under English law; or
  • The judgment was obtained by fraud.

 

Under the statutory and common law regimes, the grounds for refusing to recognise or enforce a judgment are again similar but slightly broader. These are the following:

  • Recognition would be contrary to public policy in England and Wales;
  • The defendant was not duly served and did not receive sufficient notice of the proceedings (for the statutory regimes) or the rules of procedure in the court of origin breached the rules of natural justice (for the common law regime);
  • There was a previous final and conclusive judgment in relation to the dispute by a court having jurisdiction in the matter;
  • The court of origin did not have jurisdiction on one of the limited permitted grounds (considered in further detail below);
  • The judgment was obtained by fraud;
  • The proceedings in the court of origin were contrary to an agreement under which the dispute was to be settled otherwise than by proceedings in the courts of that country (Section 32 of the Civil Jurisdiction and Judgments Act 1982); or
  • The judgment is for multiple damages (ie, the amount of the judgment is arrived at by doubling, trebling or otherwise multiplying a sum assessed as compensation) (Section 5 of the Protection of Trading Interest Act 1980). This legislation was designed to protect UK companies from the extraterritorial jurisdiction of US antitrust authorities.

Under the UK regime, there are very limited grounds on which the English court can refuse to recognise or enforce a foreign judgment (Schedule 6, Paragraph 10 and Schedule 7, Paragraph 9 of the Civil Jurisdiction and Judgments Act 1982). These are the following:

  • The requirements for registration were not met (eg, where the judgment creditor did not obtain the required certificate); or
  • There was a previous judgment in relation to the dispute by a court having jurisdiction in the matter. 

Service of process

To what extent does the enforcing court review the service of process in the original foreign proceedings?

Under the European regime, the English court will review the service of process only if the judgment was given in default of appearance. In such cases, recognition of the judgment will be refused if the defendant was not served with the document which instituted the proceedings (or an equivalent document) in sufficient time and in such a way as to enable it to arrange for its defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for it to do so (Article 45(1)(b) of the Recast Brussels Regulation).

Under the Hague regime, the English court may refuse recognition and enforcement of the judgment if the document which instituted the proceedings (or an equivalent document), including the essential elements of the claim:

  • was not notified to the defendant in sufficient time and in such a way as to enable it to arrange for its defence, unless the defendant entered an appearance and presented its case without contesting notification in the court of origin when it was possible for it to do so; or
  • was notified to the defendant in a manner incompatible with the fundamental principles of England and Wales concerning service of documents.

Under the statutory regimes, the court may review the service of process in the original foreign proceedings. A judgment will not be registered under the Administration of Justice Act 1920 if the judgment debtor was not duly served, and did not appear, in the original foreign proceedings. Similarly, the registration of a judgment under the Foreign Judgments (Reciprocal Enforcement) Act 1933 will be set aside if the judgment debtor did not receive notice of the original foreign proceedings in sufficient time to enable it to defend the proceedings and did not appear.

Under the common law regime, the court may refuse to recognise and enforce a judgment if the foreign proceedings breached the rules of natural justice. This may include situations where the defendant was not given proper notice of the proceedings or the opportunity to be heard.

Under the UK regime, the English court will not review the service of process in the proceedings in the court of origin.

Public policy

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?

The English court may consider a range of public policy issues when deciding whether to recognise a foreign judgment. Judgments which have been found to be contrary to public policy include those:

  • for a cause of action or remedy that is not available in England and Wales for public policy reasons;
  • for taxes, penalties and multiple damages;
  • that breach fundamental human rights (eg, the right to a fair trial); and
  • obtained in breach of an anti-suit injunction.

Under the European regime, the English court can refuse to recognise a foreign judgment if to do so would be manifestly contrary to English public policy. The European Court of Justice has held that this ground will only apply where the judgment infringes a fundamental principle of the legal order of the member state in which recognition of the judgment is sought (Krombach v Bamberski (Case C-116/02)). For example, the English court may refuse to recognise a judgment if the defendant did not receive a fair trial in accordance with Article 6 of the European Convention on Human Rights (Laserpoint Ltd v Prime Minister of Malta (2016) EWHC 1820).

Jurisdiction

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?

Under the European regime, the English court generally cannot review the jurisdiction of the court of origin (Article 45(3) of the Recast Brussels Regulation). There are limited grounds for refusing to recognise a judgment if it conflicts with the European rules on jurisdiction in relation to:

  • insurance, consumer and employment claims; or
  • a claim where there is a particularly close connection with the courts of one member state (eg, claims relating to rights in immovable property) (Article 45(1)(e) of the Recast Brussels Regulation).

The Hague regime applies to judgments only where the court of origin was designated in an exclusive choice of court agreement. Unless the judgment was given by default, the English court will be bound by the findings of fact on which the court of origin based its jurisdiction (Article 8(2) of the 2005 Hague Convention on Choice of Court Agreements). Therefore, the English court will have limited scope for reviewing the jurisdiction of the court of origin.

Under the statutory and common law regimes, a judgment will be enforced only if the court of origin had personal jurisdiction over the judgment debtor. This acts as a significant limitation on the scope of these regimes:

  • The Administration of Justice Act 1920 and Foreign Judgments (Reciprocal Enforcement) Act 1933 set out the circumstances in which the foreign court will be deemed to have jurisdiction. This is broadly the case where the judgment debtor:
    • was ordinarily resident in the foreign jurisdiction;
    • had its principal place of business in the jurisdiction; or
    • voluntarily appeared or otherwise submitted or agreed to submit to the jurisdiction of the court.

Under the Foreign Judgments (Reciprocal Enforcement) Act 1933, the court of origin will also be assumed to have jurisdiction if the proceedings concerned land in the state of origin.

  • Under the common law regime, the court of origin will be assumed to have jurisdiction if the judgment debtor was present in the state of origin when the proceedings were commenced (Adams v Cape Industries plc).
  • It will not be sufficient that the court of origin assumed jurisdiction on other grounds (eg, where the subject matter of the dispute was closely connected with the jurisdiction), even if the English court would have assumed jurisdiction on such basis.

Under the UK regime, there is no scope for the English court to review the jurisdiction of the court of origin.

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?

As a general rule, the English courts may refuse to recognise and enforce a foreign judgment if there is a conflicting English judgment or an earlier judgment from another state which can also be enforced in England and Wales. Further details on the position under each regime are set out in the ‘Grounds for refusal’ section above.