On 1 July 2025, the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters 2019 (the "HJC") will enter into force in the United Kingdom. This will have the effect of reducing some of the uncertainty attached to the enforcement of judgments obtained in the United Kingdom in Ireland following Brexit.
The entry into force of the HJC in the United Kingdom will mean that for the first time since Brexit, there exists a reciprocal framework the recognition and enforcement of judgments between the UK and the EU. The HJC will lead to greater predictability and efficiency and will be of enormous benefit to parties who obtain judgment in the UK which they wish to enforce against a defendants' assets in Ireland.
In this briefing, we review the regimes which have applied to the enforcement of UK judgments in Ireland since Brexit, discuss the benefits which the HJC will introduce, and identify the gaps which will remain.
Enforcement following Brexit
Following Brexit, a party seeking to enforce a judgment obtained in the UK in Ireland had to consider several factors, including the date on which the proceedings leading to the judgment were commenced, or the inclusion of an exclusive jurisdiction clause in the agreement the subject of a dispute, to determine the rules which would apply to the enforcement of the judgment. As we summarise below, the possible routes of enforcement are to rely on:
- Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) ("Brussels Recast");
- The Hague Convention on Choice of Court Agreements 2005 (the "HCC"); or
- Common law rules of private international law.
Brussels Recast
Brussels Recast provides for the free movement of judgments within the EU and simplifies the enforcement of judgments obtained in proceedings amongst the member states to which it applies. Under Brussels Recast, a judgment obtained in one member state must be recognised in all other members states. Similarly, a judgment obtained in one member state is enforceable in another member state without requiring a declaration of enforceability in the second member state.
Under the terms of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (the "Withdrawal Agreement"), Brussels Recast ceased to apply to apply to the UK on 31 December 2020. Article 67(2) of the Withdrawal Agreement did, however, contain a saver to provide that the rules on recognition and enforcement of judgments would continue to apply to proceedings which were instituted before the end of the transition period.
Therefore, a party wishing to enforce a UK judgment in Ireland may still rely on the provisions of Brussels Recast provided the proceedings to which the judgment relates were commenced prior to 31 December 2020.
The HCC
The UK acceded to HCC in its own right (having previously been included in the EU's accession) prior to the end of the transition period to ensure that it would come into effect immediately on its departure from the EU on 31 December 2020.
Article 8 of HCC provided that a judgment given by a court of a contracting state pursuant to an exclusive choice of court agreement shall be enforced in other contracting states without a review of the merits of the judgment.
HCC therefore offered a limited route for enforcing UK judgments in Ireland provided they were obtained pursuant to an exclusive choice of court agreement.
Common Law Rules of Private International Law
If neither Brussels Recast nor HCC were available to a party seeking to enforce a UK judgment in Ireland, they would be required to rely on the common law rules of private international law.
A party seeking to enforce a judgment under common law rules is required to commence summary proceedings against the judgment debtor in the Irish courts. Although an Irish court would not engage in a rehearing of the merits of the case, the judgment creditor is required to satisfy a number of proofs, including that the judgment:
- was granted by a court of competent jurisdiction;
- was for a definite sum;
- is final and conclusive;
- was not obtained by fraud; and
- does not contravene Irish public policy and/or natural and constitutional justice.
The common law rules of private international law, while effective, are a less efficient and more costly method of enforcing foreign judgments than the rules which applied under Brussels Recast, for example.
Enforcement under the HJC
The entry into force in the UK of the HJC on 1 July 2025 will largely bring to an end the need for parties to rely on the patchwork of instruments and common law rules to enforce UK judgments in Ireland.
An important preliminary point to note is that the HJC will apply only to judgments obtained in proceedings commenced following its entry into force on 1 July 2025. Judgments obtained in proceedings already in being on 1 July 2025 can only be enforced through the mechanisms set out above.
The HJC imposes a positive obligation on contracting states that a judgment given by a court of a contracting state (the state of origin) must be recognised and enforced in another contracting state (the requested state). The merits of a foreign judgment shall not be reviewed and the enforcement procedure cannot be used to re-open the substance of a dispute already adjudicated. This rule ensures certainty of judgments of the court of origin and does not allow a party to try to reverse the decision before the court of the requested state.
Under Article 3 of the HJC, judgment is broadly defined and includes any decision on the merits of a case, including a costs award, and regardless of the name given to the decision, i.e., even if a judgment is called a decree or an order, it will be defined as a "judgment" for the purpose of the HJC.
Notably, Article 3 provides that interim measures of protection are not judgments and therefore cannot be enforced using the HJC.
Articles 1 and 2 of the HJC set out its scope and provide that it applies to civil or commercial matters. A range of matters are excluded from the scope of the HJC, including revenue, customs or administrative matters. There are also exclusions relating to:
- Matters covered by more specialised treaties (for example, family, matrimonial, succession, the carriage of passengers and goods regardless of how carriage takes place, and certain maritime matters).
- Matters that are treated inconsistently, or that reflect genuine policy differences, as between legal systems such that it might not be appropriate for a judgment in one state to be given equivalent effects in another (for example, insolvency, privacy, intellectual property and certain anti-trust/competition law matters).
The bases upon which a judgment may be recognised and enforced are set out in Article 5 of the HJC. These provisions should be consulted carefully before any enforcement action is taken. The bases for recognition of a judgment are premised upon the establishment of a connection between the subject of the judgment and the state of the court from which the judgment originates. Therefore, the bases include typical grounds such as that the person against whom enforcement was sought was habitually resident in the state of the court of origin or that the subject of the judgment expressly consented to the jurisdiction of the court of origin.
While Article 7 sets out the grounds upon which recognition or enforcement may be refused. These include that the judgment was obtained by fraud or that its enforcement would be manifestly incompatible with public policy. It should be noted, however, that these grounds are exhaustive, and recognition or enforcement cannot be refused on grounds not specified in the HJC.
Articles 12 and 13 of the HJC concern the documents required to be produced in an application for recognition and enforcement and the procedure to be followed, respectively.
Conclusion
Upon its entry into force, the HJC will simplify and bring greater efficiency to the process of enforcing a UK judgment in Ireland by providing for the first time since Brexit and the end of the transition period a framework for the reciprocal recognition and enforcement of judgments between the UK and the EU.
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.
