Answer ... In England and Wales, a range of rules govern the recognition and enforcement of foreign judgments. Which rules apply will depend on where and when the foreign judgment was obtained.
The recognition and enforcement of judgments obtained in EU member states where proceedings were commenced before 11:00pm on 31 December 2020 are governed by EU rules pursuant to Article 126 of the EU-UK Withdrawal Agreement 2019, which was implemented in the United Kingdom by the European Union (Withdrawal Agreement) Act 2020. The most recent iteration of these rules is the Recast Brussels Regulation (Regulation (EU) 1215/2012), which applies to judgments given in proceedings commenced on or after 10 January 2015. The predecessor to the Recast Brussels Regulation (Regulation (EU) 44/2001) continues to apply to judgments given in proceedings commenced before 10 January 2015. The 1968 Brussels Convention also continues to apply in relation to judgments given in Gibraltar and some dependent territories of EU member states. For judgments obtained in Iceland, Norway and Switzerland (which are not part of the European Union, but are part of the European Free Trade Association (EFTA)), the relevant rules where proceedings were commenced before 11:00pm on 31 December 2020 are found in the 2007 Lugano Convention (pursuant to SI 2019/479, reg 92). These rules are broadly the same as those under the 2001 Brussels Regulation. For convenience, this Q&A refers to these rules collectively as the ‘EU/EFTA rules’.
The recognition and enforcement of judgments obtained in EU member states where proceedings were commenced after 11:00pm on 31 December 2020 are governed by the 2005 Hague Convention on Choice of Court Agreements where judgment is given pursuant to an exclusive jurisdiction clause in favour of that member state entered into after the convention came into force in that state (1 October 2015 in respect of all EU member states other than Denmark, where the relevant date is 1 September 2018). This is provided that the subject matter of the proceedings is within the scope of the convention: in contrast to the EU/EFTA rules, it does not apply, for example, to employment and consumer contracts. The Lugano contracting states – Norway, Switzerland and Iceland – are not parties to the 2005 Hague Convention.
The recognition and enforcement of judgments obtained in Mexico, Singapore and Montenegro are also governed by the 2005 Hague Convention on Choice of Court Agreements where judgment is given pursuant to an exclusive jurisdiction clause in favour of the relevant country entered into after the convention came into force in that country (1 October 2015 in the case of Mexico, 1 October 2016 in the case of Singapore and 1 August 2018 in the case of Montenegro). China, Israel, North Macedonia, Ukraine and the United States have all signed the convention, but not brought it into force.
In addition to the EU/EFTA rules and the Hague Convention rules, the United Kingdom has bilateral arrangements with various countries and British overseas territories. These rules are given effect in England and Wales by two statutes.
The Administration of Justice Act 1920 applies to judgments obtained in the superior courts of various commonwealth countries and British overseas territories. These include Anguilla, Antigua and Barbuda, Bahamas, Barbados, Belize, Bermuda, Botswana, the British Indian Ocean Territory, the British Virgin Islands, the Cayman Islands, Dominica, the Falkland Islands, Fiji, the Gambia, Ghana, Grenada, Guyana, Jamaica, Kenya, Kiribati, Lesotho, Malawi, Malaysia, Mauritius, Montserrat, New Zealand, Nigeria, Papua New Guinea, St Kitts and Nevis, St Helena, St Lucia, St Vincent and the Grenadines, Seychelles, Sierra Leone, Singapore (in relation to which the act will apply where the 2005 Hague Convention on Choice of Court Agreements does not apply), the Solomon Islands, Sri Lanka, Swaziland, Tanzania, Trinidad and Tobago, the Turks and Caicos Islands, Tuvalu, Uganda, Zambia and Zimbabwe.
The 1920 act may also apply to judgments obtained in the superior courts of Malta and Cyprus, save where:
- the proceedings began before 11:00pm on 31 December 2020 (in which case the Recast Brussels Regulation will apply); or
- the proceedings began after that date and the court had jurisdiction pursuant to an exclusive jurisdiction clause entered into on or after 1 October 2015 (in which case the 2005 Hague Convention on Choice of Court Agreements will apply).
The 1920 act applied to judgments from Malta and Cyprus prior to the EU regime coming into force. It is likely that this act applies once again now that the United Kingdom has left the European Union, as the relevant statutory instruments remain in force; but this is not entirely free from doubt.
The judgment creditor can, if it wishes, bring an action on the judgment under the common law rules instead, but it will not generally obtain its costs of those proceedings unless it has applied unsuccessfully for registration under the 1920 act.
The Foreign Judgments (Reciprocal Enforcement) Act 1933 applies to judgments obtained in Australia, Canada, Guernsey, Jersey, the Isle of Man, India, Israel, Pakistan, Suriname and Tonga. It also applies to Norway where the Norwegian proceedings were commenced after 31 December 2020; if the proceedings were commenced before that date, then the Lugano Convention 2007 will apply pursuant to SI 2019/479, reg 92. The 1933 act is extended to each territory by way of a statutory instrument which states the specific courts and territories to which the act applies. The most recent statutory instrument in relation to Norway is the Reciprocal Enforcement of Foreign Judgments (Norway) (Amendment) (England and Wales and Northern Ireland) Order (SI 2020/1338)). It is advisable to check the statutory instrument for the relevant country, as there are some nuances - for example, the 1933 act extends to judgments of the Federal Court of Canada and most of the provinces, but not Quebec and Nunavut.
The 1933 act may also apply to judgments obtained in Austria, Belgium, France, Germany, Italy and the Netherlands, save where:
- the proceedings began before 11:00pm on 31 December 2020 (in which case the Recast Brussels Regulation will apply); or
- the proceedings began after that date and the court had jurisdiction pursuant to an exclusive jurisdiction clause entered into on or after 1 October 2015 (in which case the Hague Convention on Choice of Court Agreements will apply).
The 1933 act applied to judgments from these EU countries prior to the EU regime coming into force. It is likely that this act applies once again now that the United Kingdom has left the European Union, as the relevant statutory instruments remain in force; but this is not entirely free from doubt.
If the judgment does not fall within any of the specific rules outlined above, then the recognition and enforcement of the judgment are governed by the English common law rules. This includes judgments obtained in countries such as Argentina, Brazil, China, Indonesia, Japan, Russia, Saudi Arabia, South Africa, South Korea, Turkey and the United States.
The rules outlined above apply to the recognition and enforcement of judgments in civil and commercial matters. There are separate rules for other types of judgments, such as matrimonial or parental issues or the international carriage of goods; but a detailed consideration of these rules is beyond the scope of this Q&A.
There are specific rules for the enforcement of judgments obtained in one part of the United Kingdom in another part of the United Kingdom. These rules are found in the Civil Jurisdiction and Judgments Act 1982, but are not discussed in detail in this Q&A.
The instruments and statutes referred to above set out the substantive rules for the recognition and enforcement of foreign judgments which apply in England and Wales. Where this Q&A explains the procedure for the recognition and enforcement of foreign judgments, it refers to rules in England and Wales which are (save in respect of enforcement under the common law rules) largely set out in the Civil Procedure Rules, Part 74. The rules may be different in Scotland and Northern Ireland.
