European Union: Judgment Day? Cross-Channel Enforcement Post-Brexit

Last Updated: 30 November 2016
Article by Jason Harte

Until recently, Irish creditors could reasonably assume that money judgments awarded in Ireland could be enforced within all other EU member states, including the UK1. This gave Irish creditors comfort that they could swiftly and cost-effectively pursue UK-situate assets of a judgment debtor, after a judgement was obtained in Ireland.  A key aim of both the original Brussels I Regulation and the Recast Regulation (the "Regulations") is to facilitate access to justice amongst member states and for judgments to be easily recognised and enforced. However, this certainty ended following the outcome of the "Brexit" referendum in the UK.   

How straightforward is it currently to enforce an Irish judgment in the UK (or vice versa)?

The current EU procedure, as provided by the Regulations, is relatively straight-forward.  It requires the (Irish) creditor to obtain a certificate from the Irish Courts which certifies that the judgment is enforceable, contains details of the judgment and sets out information about interest and costs. The Irish creditor must then serve the certificate and judgment on the (UK) judgment debtor, before enforcing it. The Irish judgment creditor is then entitled to enforce that judgment as if it were a UK judgment, including referring it to a bailiff/High Court Enforcement Officer for execution, or registering a charging order on the judgment debtor's interest in UK property.  

The Queen's English

Unlike other member states' judgments and certificates, our shared language with the UK previously meant that translations of judgments/certificates were not required for cross-border enforcement, thereby further reducing cost and delay!  Even the Brexit vote should not change that, regardless of how exactly cross-channel judgments are to be enforced. 

Any other advantages?

It should be pointed out that a wide range of judgments, in addition to money judgments, are also enforceable under the Regulations and the defences/grounds to refuse enforcement are fairly limited.  A further advantage is that the Regulations apply irrespective of where the parties come from. If, for example, the Irish Courts gave judgment in a dispute involving a Mexican plaintiff and a UK defendant, it is enforceable across the EU, including the UK, where presumably the defendant's assets are situate. 

So what will change?

The Regulations will remain in force until the UK formally leaves the EU. After that, it will depend on what form the UK's relationship with Europe takes. The logical view is that the UK will enter agreements/arrangements with the EU on issues such as jurisdiction, service, choice of law and, of course, on reciprocal recognition and enforcement of each other's judgments, in the future2

Brand new UK proceedings on the Irish judgment – surely not?

However, if the EU and the UK do not specifically agree on an alternative arrangement (in place of the Regulations) then Irish judgments in the UK, and vice versa UK judgments in Ireland, will become subject to international conflict of laws rules. The upshot of this will be that the Irish judgment creditor will be required to commence fresh proceedings against the UK judgment debtor in the English courts if the Irish creditor wishes to enforce his UK judgment there, rather than being able to rely on the Irish judgment itself. Needless to say, this will make enforcement between Ireland and the UK both slower and more expensive. 

Conclusion

Until there is more certainty as to the terms of the UK exit from the EU, the future for enforcement of Irish court judgments against the UK-situate assets of judgment debtors remains unclear.  In advance of knowing more about any new arrangements that might be agreed, it is prudent for Irish creditors to take immediate steps to enforce a court judgment in the UK, under the current Regulations. Similarly, if an Irish creditor has a claim (as opposed to a judgment) against an entity with UK situate assets, or if such a claim arises in advance of the UK's formal exit, then the Irish creditor should move quickly to issue proceedings and obtain judgment on foot of that claim.  By doing so they will be able to take advantage of the relatively fast and cost-effective enforcement mechanisms that currently apply.

Footnotes

1 By virtue of the EU Regulation No. 1215/2012 (the Brussels I Regulation (recast)), where proceedings are commenced after 10 January 2015 and by virtue of EU Regulation No. 44/2001 (the Brussels I Regulation) for proceedings commenced before that date. 

2 For example, the UK (in its own right), could seek to sign and ratify the Lugano Convention 1988, which some commentators consider the most sensible step post-Brexit.  This would certainly allow for a relatively clear-cut process for enforcement of judgments between contracting states, though it has to be said that it is much less streamlined than the Brussels I Regime.  This Convention currently applies to Norway, Switzerland and Iceland.  If the UK sought accession to the Lugano Convention though, it would require an amendment to its eligibility provisions, as well as the consent of the other parties to the Convention. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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