Enforcement of Foreign Judgements in the United Kingdom
Omar Elzayat
The United Kingdom, a jurisdiction with a rich legal history, provides multiple avenues for the enforcement of foreign judgments. These avenues include both treaty-based mechanisms and the common law method, each with its own unique procedures and requirements. While each of these methods plays a crucial role in the broader framework of international judgment enforcement, this article will focus exclusively on the common law method as it is now a vital tool for parties seeking to enforce foreign judgments in the UK, especially in the post-Brexit legal landscape, where certain treaty-based mechanisms may no longer apply. By examining the principles, procedures, and challenges associated with the common law method, this article aims to provide a comprehensive understanding of its role and significance in the UK’s legal system.
Absent any applicable special regime, the recognition and enforcement of foreign judgements in England and Wales is dealt with under English common law. The common law method for enforcing a foreign money judgment can be utilised when no other options are available or when the judgment falls outside the scope of the special regimes.
Under this regime, the English court will recognize the foreign judgment as an instrument of debt owed by the judgment debtor to the judgment creditor, by which the court can issue a fresh judgment based on the debt evidenced by the foreign judgment. Provided that the requirements for a foreign judgment to be considered as creating a debt are satisfied.
General restrictions apply to the enforcement of foreign judgements under the common law regime, including that the judgment must have been obtained in accordance with the principles of natural justice and that the judgment is of a compensatory nature and for a specified sum of money. Also, under the common law regime, a foreign judgment must be for a specified sum of money representing the debt of the judgment debtor, which should be compensatory and not punitive in nature. Any punitive damages, interim awards or injunctive reliefs are not enforceable at common law.
Procedures and Requirements for the Enforcement of Foreign Judgements
A foreign judgment in personam can be enforced at common law under the following conditions:
- Competent Jurisdiction: The foreign judgment must have been issued by a court recognised as having competent jurisdiction according to the standards applied by English law. The foreign court will be deemed to have had jurisdiction if it was based on certain territorial or consensual connections, primarily if the defendant was present within the foreign jurisdiction or voluntarily submitted to the foreign court’s authority.
- Nature of the Judgment: The judgment must pertain to a debt or a specific sum of money. Judgments related to taxes, fines, or other penalties are not enforceable, nor are orders requiring the defendant to perform or refrain from certain actions.
- Finality of the Judgment: The foreign judgment must be final and conclusive regarding the merits of the case. A judgment is considered final and conclusive if it is treated as res judicata by the foreign court that issued it. The fact that the judgment may be subject to appeal, or is under appeal, does not prevent it from being considered final and conclusive (as established in Colt Industries Inc v Sarlie (No 2) [1966] 1 WLR 1287), although the English court may choose to grant a discretionary stay of enforcement pending the outcome of the appeal.
Even if a foreign judgment satisfies these criteria, it may still be refused enforcement in England if the judgment debtor successfully raises any defences available under common law or statute. These defences include a range of issues, such as fraud, violation of public policy, or a breach of natural justice in the proceedings before the foreign court.
The procedure for enforcing a foreign judgment under the common law regime is straight forward, requiring the judgment creditor to initiate fresh proceedings against the judgment debtor before the High Court in England and Wales to recover his debt. The claimant can then expedite the process by applying for a summary judgment based on the argument that the judgment debtor has no real prospect of success, as evidenced by the foreign judgment, which accelerates the enforcement of the foreign judgment. However, this process hinges on the judgement satisfying all the requirements and conditions for recognition and enforcement required by English law.
On the Other hand, there are other methods available under UK law for enforcing foreign judgments, which are treaty-based and can help if the judgement falls under their provisions such as the Hague Convention on Choice of Courts Agreements, which mandates the recognition and enforcement of judgments made by a court chosen by the parties in a contract. Other treaties, such as those with Commonwealth countries, also provide frameworks for enforcing judgments.
Moreover, specific statutes such as the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933, and the Civil Jurisdiction and Judgments Act 1982, create statutory mechanisms for the enforcement of foreign judgments in the UK. These statutes typically apply to judgments from designated jurisdictions with which the UK has reciprocal agreements.
Finally, In the absence of a treaty or statutory provision, the common law method serves as a default mechanism for enforcing foreign judgments in the UK. Rooted in principles of justice and equity, the common law method allows foreign judgments to be enforced through a fresh action brought in a UK court. This method is particularly significant in cases involving jurisdictions that do not have a reciprocal enforcement agreement with the UK. However, enforcing such judgements requires adherence to specific legal conditions. Firstly, the foreign judgment must be rendered by a court recognised as having competent jurisdiction under English standards. This is typically based on either the defendant’s presence within the foreign jurisdiction or their voluntary submission to its authority. Furthermore, the judgment must involve a specific sum of money and not relate to taxes, fines, or other penalties. Additionally, it is essential that the judgment be final and conclusive on the merits of the case, even if an appeal is pending. However, enforcement may still be refused if the judgment debtor raises valid defences, such as fraud, public policy violations, or breaches of natural justice. Finally, proceedings for enforcement must be initiated in the appropriate court, such as the High Court in England and Wales, the Court of Session in Scotland, or the High Court of Northern Ireland, depending on where enforcement is sought.
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