Answer ... Yes. Recognition and enforcement of foreign judgments are separate processes.
Before a foreign judgment can be enforced in England, it must generally first be recognised. This is a formal procedure usually involving an application to the court for registration of the judgment or the issuing of new proceedings and obtaining judgment. The only exception is for judgments obtained in EU member states which fall within the Recast Brussels Regulation, which are automatically recognised; the obligation is on the debtor to apply for refusal of recognition and enforcement (Articles 36 and 45 of the Recast Brussels Regulation).
Once the necessary steps have been successfully completed, the foreign judgment will be enforced as if it were an English judgment (where the common law applies, there will in fact be an English judgment). There are several ways of enforcing an English judgment, including writs of control, third-party debt orders and charging orders.
In addition to the formal procedure for recognition of foreign judgments with a view to enforcing them in England, it is possible for a foreign judgment to be recognised within English proceedings - for example, to prevent the parties arguing a point that has already been decided in foreign proceedings between the same parties.
Answer ... As explained in question 3.1, recognition and enforcement are two separate processes.
The formal process that must be followed in order for the judgment to be recognised depends on which rules apply.
The position is most straightforward for judgments obtained in EU member states and which fall within the scope of the Recast Brussels Regulation:
- These judgments are automatically recognised and there is no need for the creditor to make an application to the court for registration of the judgment (Articles 36 and 39 of the Recast Brussels Regulation). The creditor will need to obtain a certificate of enforceability from the foreign court that issued the judgment and serve this certificate along with the judgment and a translation (if necessary) on the debtor before beginning steps to enforce the judgment (Articles 42 and 43 of the Recast Brussels Regulation).
- If the creditor then wishes to take enforcement steps, it must give the court a copy of the certificate of enforceability and the judgment, and provide information on the recoverable costs of the proceedings and how any interest should be calculated (Article 43 of the Recast Brussels Regulation).
For judgments that fall within the EU/EFTA rules (other than the Recast Brussels Regulation), judgments that fall within the Hague Convention and judgments obtained in Administration of Justice Act 1920 and Foreign Judgments (Reciprocal Enforcement) Act 1933 countries, the process is as follows:
- The creditor will need to make a without notice application to a master in the Queen’s Bench Division of the High Court. Details of the procedure for making an application are set out in the Civil Procedure Rules, Part 74.
- The application will need to be supported by written evidence setting out, among other things, the amount of the judgment and interest, and the grounds on which the creditor is entitled to enforce the judgment. The full requirements for what should be included in the written evidence are set out in the Civil Procedure Rules, Part 74.4 and vary depending on which rules apply.
- The written evidence will also need to include:
- a verified or certified copy of the judgment;
- a certified translation (if necessary); and
- any other specific documents required by Part 74.4.
- If the master grants permission for the judgment to be registered, then the creditor must serve a registration order on the debtor. The registration order will include particulars of the judgment, the name and address for service of the creditor, and details of the debtor’s right to apply to have the registration set aside or to appeal against the registration. The creditor must file evidence with the court to show that the registration order has been served.
- Once the registration order has been served and the period for the debtor to apply to have the registration set aside, or to appeal against the registration, has passed, the creditor can take steps to enforce the judgment.
For judgments falling within the common law rules, the process is as follows:
- The creditor will need to commence a fresh claim in the English courts to obtain an English judgment in respect of the foreign judgment debt.
- The creditor will need to issue a claim form and particulars of claim in accordance with the Civil Procedure Rules, Part 7.
- If the debtor fails to acknowledge service of the claim or to file a defence within the required timeframe, then it may be possible to obtain a default judgment in accordance with the Civil Procedure Rules, Part 12.
- If the debtor does file an acknowledgment of service, then it will usually be possible to apply for summary judgment under the Civil Procedure Rules, Part 24, on the basis that the debtor has no real prospect of succeeding on the claim. An application for summary judgment must be supported by written evidence.
- Once the creditor has obtained a judgment from the English court in respect of the foreign judgment debt, it will be able to enforce the judgment in England in the same way as any other English judgment.
Answer ... The documents that are required in support of an application for recognition and enforcement are explained in question 3.2.
Answer ... The fees that are payable will vary depending on the specific rules that apply. Generally, they will comprise:
- the court fees for any application for registration/recognition of the judgment;
- the associated legal fees for preparing the application and responding to any challenges; and
- the legal and other professional fees for enforcing the judgment.
The application fees are as follows:
- For judgments obtained in EU member states that fall within the Recast Brussels Regulation, no application is required and so there is no application fee.
- For judgments that fall within the other EU/EFTA rules, judgments obtained in 1920 act and 1933 act countries, and judgments that fall within the Hague Convention, the standard fee for an application without notice is currently £100.
- For judgments obtained in other jurisdictions, the creditor will need to commence a new claim to obtain an English judgment in respect of the foreign judgment debt. The creditor will need to pay the usual court fees, which are an issue fee and a hearing fee. The amount of these fees varies depending on the value of the debt. The maximum issue fee is currently £10,000 and the maximum hearing fee is currently £1,090. These sums are recoverable from the debtor if the creditor is successful, on the basis that the loser pays the winner’s costs (subject to the usual discretion that the court has to make a different order).
The legal and other professional fees will vary on a case-by-case basis.
Answer ... A creditor cannot be required to give security for costs solely on the ground that it is resident outside of the United Kingdom in an EU/EFTA or Hague Convention State (Civil Procedure Rules, Part 25, Rule 25.13(2)(a)(ii)).
Subject to this, the debtor can make an application for security for costs and the usual rules for such applications will apply. The full detail of these rules is beyond the scope of this Q&A, but they can be found in the Civil Procedure Rules, Part 25.
In general terms, the court may make an order for security for costs if:
- it is satisfied, having regard to all circumstances of the case, that it is just to make such an order; and
one of the specified conditions applies or an enactment permits the court to require security for costs. The specified conditions include, among other things, that:
- the creditor is resident out of the jurisdiction (but not in a state bound by the EU/EFTA rules or the Hague Convention); or
- the creditor is a company or other body and there is reason to believe that it will be unable to pay the debtor’s costs if ordered to do so.
An application for security for costs can cover:
- the debtor’s costs of the application for registration;
- any proceedings brought to set aside the registration;
- any appeal against the granting of the registration; and
- any application in relation to the recognition or enforcement of a judgment pursuant to the Recast Brussels Regulation (Civil Procedure Rule 74.5(1)).
Answer ... The timing of the formal process for recognition of a foreign judgment will depend on the specific process that needs to be followed (as explained above).
An application to a master in the Queen’s Bench Division of the High Court is a fairly straightforward process and will usually take a few weeks. If the debtor then seeks to have the registration set aside or appeals against the registration, then the process will take longer.
Where the creditor needs to commence a new claim in England, the process may take longer depending on how the debtor responds to the claim:
- Once the creditor has served the claim form and particulars of claim, the debtor will generally have 14 days to file an acknowledgement of service and up to 28 days to file and serve a defence.
- If the debtor files an acknowledgement of service and admits the claim, then the creditor will be able to apply to the court for judgment.
- If the debtor fails to file an acknowledgement of service or defence within the required time limit, then the creditor will be able to apply to the court for a default judgment.
- If the debtor serves an acknowledgement of service indicating an intention to defend, then it will usually be possible for the creditor to apply for summary judgment. Such an application will usually take at least several weeks, as both parties will need to serve evidence in relation to the application. The timing will also depend on the court's availability for a hearing of the application.
- If the creditor is unable to obtain summary judgment, then it will be necessary for the claim to be dealt with at trial. Even in a relatively straightforward enforcement case with few issues, this is likely to take several months.
Answer ... While the recognition process is ongoing, the creditor may be able to apply for injunctive relief such as a freezing injunction to prevent the debtor from dissipating its assets or removing them from the jurisdiction.
A detailed analysis of the rules on freezing injunctions is beyond the scope of this Q&A. However, in general terms, in order to obtain a freezing injunction the creditor will need to show the following:
- It has a good arguable case that it is entitled to the money from the debtor;
- The debtor has assets within the jurisdiction;
- There is a real risk that the debtor will dissipate its assets or remove them from the jurisdiction; and
- It is just and convenient to grant the injunction in the circumstances of the case.