Comparative Guides
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Results: 4 Answers
Enforcement of Foreign Judgments
5.
Court analysis and decision
5.1
Will the court review service of process in the initial proceedings?
 
UK
For judgments that fall within the EU/European Free Trade Agreement (EFTA) rules, the English court will not generally review service of process in the initial proceedings. This is on the basis that the debtor should have raised any issues in relation to service in the foreign proceedings. The English court will review service of process only in the case of default judgments (ie, judgments given in the absence of the debtor’s appearance), which the English court may refuse to recognise if the debtor was not served in sufficient time and in such a way as to enable it to arrange for its defence (Article 45(1)(a) of the Recast Brussels Regulation). However, the English court cannot refuse to recognise a default judgment where the debtor could have commenced proceedings to challenge that judgment in the foreign court and failed to do so.

For other judgments, the English court may review the service of process in the initial proceedings, as follows:

  • Judgments obtained in Administration of Justice Act 1920 countries will not be recognised and enforceable if the debtor was not duly served and did not appear in the initial proceedings (Section 9(2)(b) of the 1920 act).
  • Judgments obtained in Foreign Judgments (Reciprocal Enforcement) Act 1933 countries will not be recognised and enforceable if the debtor did not receive notice of the initial proceedings in sufficient time that it was able to defend the proceedings (even if the debtor was duly served in accordance with the law of the foreign jurisdiction) and did not appear in the initial proceedings (Section 4(1)(a)(iii) of the 1933 act).
  • For judgments that fall within the Hague Convention, the English court can refuse recognition and enforcement if the document commencing the proceedings:
    • was not notified to the debtor in sufficient time and in such a way that it was able to defend the proceedings, unless the debtor appeared in the foreign proceedings and presented its case without contesting notification in the initial proceedings when it was possible to do so; or
    • was notified to the debtor in a manner that is not compatible with the fundamental principles of English law concerning the service of documents (Article 9(c) Hague Convention).
  • For other judgments - that is, those falling within the common law rules - the court may refuse to recognise and enforce a judgment if the defendant was not given proper notice of the proceedings or the opportunity to be heard such that the initial proceedings breached the rules of natural justice.
For more information about this answer please contact: Anna Pertoldi from Herbert Smith Freehills
5.2
Will the court review the jurisdiction of the foreign court in the initial proceedings?
 
UK
The extent to which the English court will review the jurisdiction of the foreign court will depend on which rules apply.

Under the EU/EFTA rules, the English court will not generally review the jurisdiction of the foreign court in the initial proceedings (Article 45(3) of the Recast Brussels Regulation). However, the English court may refuse to enforce a judgment where the jurisdiction of the foreign court is inconsistent with the EU/EFTA rules on jurisdiction in relation to insurance matters, consumer contracts, employment contracts and matters of exclusive jurisdiction (eg, claims in relation to immovable property, companies, public registers or patents and trademarks) (Article 45(1)(e) of the Recast Brussels Regulation). When considering whether to refuse to enforce the judgment on this basis, the English court will be bound by the findings of fact on which the foreign court based its jurisdiction (Article 45(2) of the Recast Brussels Regulation).

The Hague Convention is slightly different, as it applies only to judgments obtained where the foreign court was designated in an exclusive choice of court agreement. The basis on which the foreign court had jurisdiction will therefore be relevant in determining whether the Hague Convention applies. The English court can refuse to recognise and enforce the judgment if the choice of court agreement was null and void under the law of the state of the chosen court or one of the parties lacked capacity to conclude the choice of court agreement under English law (Articles 9(a) and (b) of the Hague Convention). However, the English court will be bound by the findings of fact made by the foreign court in relation to its jurisdiction unless the judgment was given by default (Article 8(2) of the Hague Convention).

For all other judgments, the English court will consider whether the foreign court had personal jurisdiction over the defendant:

  • For judgments obtained in 1920 act countries, the English court will consider whether the defendant:
    • was carrying on business in the jurisdiction;
    • was ordinarily resident in the jurisdiction; or
    • voluntarily appeared or otherwise submitted or agreed to submit to the jurisdiction of the foreign court (eg, by means of a jurisdiction clause) (Section 9(2)(a) of the 1920 act).
  • For judgments obtained in 1933 act countries, the English court will consider whether:
    • the defendant submitted to the jurisdiction of the foreign court (eg, by means of a jurisdiction clause) was resident or had its principal place of business in the foreign jurisdiction; or
    • had an office or place of business in the foreign jurisdiction, the proceedings related to a transaction effect through that office or place of business.

The court will also consider whether the subject matter of the judgment is immovable property or rights in rem in relation to moveable property which, at the time of the proceedings, was situated in the foreign court (Section 4(2) of the 1933 act).

  • For judgments to which the common law rules apply, the English court will consider whether the defendant was present in the foreign jurisdiction when the proceedings were commenced, or submitted or agreed to submit to the jurisdiction of the foreign court (eg, by means of a jurisdiction clause). The English court will not recognise and enforce a foreign judgment if the foreign court assumed jurisdiction on any other basis, even if the English court would have jurisdiction on that basis.
For more information about this answer please contact: Anna Pertoldi from Herbert Smith Freehills
5.3
Will the court review the foreign judgment for compliance with applicable law and public policy?
 
UK
The English court can generally refuse to recognise and enforce a foreign judgment where to do so would be contrary to English public policy. For example, the English court may refuse to recognise and enforce judgments obtained in breach of an anti-suit injunction or judgments that breach the defendant’s fundamental rights, including fundamental procedural rights.

The exact formulation of the rule varies depending on which rules apply:

  • Under the 1920 act, the English court will refuse recognition of a judgment if it was in respect of a cause of action which, for reasons of public policy or for some other similar reason, could not have been entertained by the English court (Section 9(2)(f) of the 1920 act).
  • Under the 1933 act, the English court will refuse recognition of a judgment if enforcement of the judgment would be contrary to English public policy (Section 4(1)(a)(v) of the 1933 act).
  • Under the EU/EFTA rules, the English court will refuse recognition of the judgment if it would be “manifestly” contrary to English public policy (Article 45(1)(a) of the Recast Brussels Regulation).
  • Under the Hague Convention, the English court may refuse recognition of the judgment if it would be “manifestly” incompatible with English public policy, including where the foreign proceedings were incompatible with England’s fundamental principles of procedural fairness (Article 9(e) of the Hague Convention).
For more information about this answer please contact: Anna Pertoldi from Herbert Smith Freehills
5.4
Will the court review the merits of the foreign judgment?
 
UK
No, the English court will not generally review the merits of the foreign judgment regardless of the jurisdiction in which the foreign judgment was obtained (eg, see Article 52 of the Recast Brussels Regulation and Article 8(2) of the Hague Convention).

For more information about this answer please contact: Anna Pertoldi from Herbert Smith Freehills
5.5
How will the court proceed if the foreign judgment conflicts with a previous judgment in relation to the same dispute between the same parties?
 
UK
The English court can refuse to recognise and enforce a foreign judgment if it is irreconcilable or inconsistent with a previous English judgment, or a previous foreign judgment which can be recognised and enforced in England, between the same parties in relation to the dispute (eg, see Article 45(1)(d) and Article 46 of the Recast Brussels Regulation and Articles 9(f) and (g) of the Hague Convention).

For more information about this answer please contact: Anna Pertoldi from Herbert Smith Freehills
5.6
Are there any other grounds on which the court may refuse to recognise and enforce the foreign judgment?
 
UK
The 1920 act, 1933 act and Hague Convention all contain express provisions stating that the English court can refuse to recognise and enforce a foreign judgment if it was obtained by fraud (Section 9(2)(d) of the 1920 act, Section 4(1)(a)(iv) of the 1933 act and Article 9(d) of the Hague Convention where the fraud is in connection with a matter of procedure).

For judgments obtained in 1920 act or 1933 act countries and judgments which fall within the common law rules, there are other specific grounds on which the English court can refuse recognition and enforcement - for example:

  • where the judgment is for multiple damages (ie, damages calculated by doubling, trebling or otherwise multiplying a sum assessed as compensation) (Section 5 of the Protection of Trading Interest Act 1980); or
  • where the foreign proceedings were brought in breach of an agreement pursuant to which the dispute was to be settled other than through proceedings in the foreign court, unless the debtor submitted to the jurisdiction of the foreign court (Section 32 of the Civil Jurisdiction and Judgments Act 1982).

For judgments obtained in 1920 act countries, the English court has a discretion as to whether to register the judgment, which it will exercise only if “in all the circumstances of the case they think it is just and convenient that the judgment should be enforced in the United Kingdom” (Section 9(1) of the 1920 act).

For more information about this answer please contact: Anna Pertoldi from Herbert Smith Freehills
5.7
Is partial recognition and enforcement possible?
 
UK
Yes, it is possible for the English courts to allow recognition and enforcement of part of a foreign judgment.

For more information about this answer please contact: Anna Pertoldi from Herbert Smith Freehills
5.8
How will the court deal with cost issues (eg, interest, court costs, currency issues)?
 
UK
For EU judgments falling within the Recast Brussels Regulation, the certificate of enforceability issued by the foreign court will include relevant information on the recoverable costs of the proceedings and the calculation of interest (Articles 42(1)(b) and 53 and Annex 1 of the Recast Brussels Regulation). When the creditor takes steps to enforce the judgment in England, it will need to convert the amount of the judgment into sterling.

For other judgments falling within the EU/EFTA rules, judgments falling within the Hague Convention and judgments obtained in 1920 act and 1933 act countries, the judgment creditor will need to make an application for registration of the judgment. Where interest is recoverable on the judgment under the law of the foreign court, the evidence in support of the application should set out the amount of interest that has accrued up to the date of the application or the rate of interest, the date from which interest is recoverable and the date on which it ceases to accrue (Civil Procedure Rule 74.4(2)(e)). If the foreign judgment includes a determination of costs by the foreign court, this can also be enforced as part of the judgment. The registration order will express the amount of the judgment in the foreign currency, and when the creditor takes steps to enforce the judgment in England, it will need to convert the amount of the judgment into sterling. The English court will usually order that the costs of the application for registration be assessed and added to the amount of the foreign judgment.

For judgments falling within the common law rules, the creditor will need to commence fresh proceedings. If the creditor is seeking interest on the judgment, then the particulars of claim should set out the basis on which interest is claimed and how it has been calculated. If the foreign judgment includes a determination of costs by the foreign court, then this should also be included in the particulars of claim. The particulars of claim should also show the amount of the foreign judgment converted into sterling at the date the claim is issued and the source of the exchange rate relied on.

For more information about this answer please contact: Anna Pertoldi from Herbert Smith Freehills