1. UNIFORMITY OF LAW AND REGULATIONS
Ireland does not have a federal system.
In Ireland the enforcement of EU judgments is governed by Regulation 44/2001 (the 'Brussels Regulation'). The Jurisdiction of Courts and Enforcement of Judgments Act 1998 implements the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 and the Lugano Convention Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988. That Act, and those Conventions, are therefore relevant to enforcement of judgments from certain territories of EU Member States to which the Brussels Convention applies but which are outside the EU and to the enforcement of judgments from EFTA states. Enforcement of EU/EFTA judgments is common-place before the Irish courts and is quite straightforward. For the purpose of this assessment, we treat judgments from EU Member States and Contracting States to the Brussels and Lugano Conventions as the same.
Enforcement of judgments from non-EU Member States and non-Contracting States to the Brussels and Lugano Conventions is governed by Common Law principles. The procedure and rules relating to enforcement of judgments of from such jurisdictions tend to be a rarity, as the procedure is laborious and various limitations and restrictions apply.
Save where the contrary appears, this chapter deals with enforcement of judgments from non-EU Member States and non-Contracting States to the Brussels and Lugano Conventions.
Judgment may be defined as any decision or sentence of a court in legal proceedings.
For the purposes of enforcement of EU judgments, the Brussels Regulation adopts the following definition, which is quite broad: 'judgment' means any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court. Similarly broad definitions apply under the Brussels and Lugano Conventions.
- Money judgments are enforceable.
- Specific performance is not enforceable at Common Law. However, because of the breadth of the definition of judgment under the Brussels Regulation and the Brussels and Lugano Conventions, orders directing specific performance from relevant States are enforceable.
- Injunctions are not enforceable at Common Law. However, because of the breadth of the definition of judgment under the Brussels Regulation and the Brussels and Lugano Conventions, injunctions from relevant States are enforceable.
- Arbitration awards are enforceable under the Irish Arbitration Act 2010.
- Judgments relating to personal status are not enforceable.
- An award for multiple/punitive damages is enforceable.
- A judgment which is in itself a recognition of a previous foreign judgment is not enforceable.
- (i) Foreign interim orders for relief pendente lite are not
(ii) Foreign interim orders for maintenance and custody are not enforceable.
- At Common Law, judgments against the local State or any of its organs are enforceable provided that the judgment is for a definite sum. It does not need to be for a definite sum if one is dealing with a judgment under the Brussels Regulation or the Brussels or Lugano Conventions.
- At Common Law, only judgments for a definite sum of money are enforceable. It does not need to be for a definite sum if one is dealing with a judgment under the Brussels Regulation or the Brussels or Lugano Conventions. Foreign judgments in relation to revenue matters are not enforceable.
Reciprocity is not essential in the enforcement of a judgment of a foreign court in Ireland.
3. CURRENCY REGULATIONS AND RESTRICTIONS
- Exchange control measures have been abolished in Ireland.
- The value of the judgment need not be converted to local currency for a court application to enforce a foreign judgment in Ireland. However, if enforcement options are to be pursued within the jurisdiction, it may be necessary to obtain the Irish currency equivalent.
4. DOCUMENTARY REQUIREMENTS
At Common Law, for the enforcement of judgments from non-EU Member States and non-Contracting States to the Brussels and Lugano Conventions, the following are required:
- Verified/certified/sealed copy of the judgment.
- Originating Writ or Summons.
- Grounding Affidavit.
- Proof of service of the judgment if obtained in default.
- Translation of the judgment.
- Specific proof of the company's authority to act is not required although the deponent of an Affidavit would be required to state the capacity in which the Affidavit has been sworn and has been authorized by the company to make the Affidavit for and on its behalf.
- The allegations required to be shown in the Affidavit appear in the example in paragraph 23. The Affidavit must exhibit the judgment which is sought to be enforced and a translation of the judgment or any other documents produced which are not in a recognized language of the local court. Where judgment has been obtained in default, the Affidavit should evidence that the party in default was served with the document instituting proceedings. The Affidavit should also aver to the fact that the judgment is enforceable in its originating State.
- The courts require the best possible evidence. Original or certified copies of documents are required.
For judgments from EU Member States and Contracting States to the Brussels and Lugano Conventions, Order 42A, Rules 4 and 5 of the Rules of the Superior Courts set out the requirements. An application for enforcement under the Brussels Regulation or the Brussels or Lugano Conventions is made by motion ex parte before the Master of the High Court grounded upon an affidavit. For enforcement under the Brussels Regulation, the affidavit must exhibit the judgment which is sought to be enforced or a certified or otherwise duly authenticated copy thereof and the certificate referred to in Article 54 of the Brussels Regulation. For enforcement under the Conventions, the affidavit must exhibit: (i) the judgment which is sought to be enforced or a certified or otherwise duly authenticated copy thereof; (ii) in the case of a judgment given in default, the original or certified copy of a document which establishes that the party in default was served with the document or documents instituting the proceedings or with an equivalent document or documents in sufficient time to enable him or her to arrange for his or her defence; (iii) documents which establish that, according to the law of the state in which it has been given, the judgment is enforceable and has been served; and (iv) where applicable, a document showing that the applicant is in receipt of legal aid in the state in which the judgment was given.
The Republic of Ireland has ratified the Hague Convention on Service Abroad and the Hague Convention on Civil Aspects of Abduction of Children.
6. AUTHENTICATION OF DOCUMENTS
The required documents are to be authenticated by the seal of the foreign court or by certification by a duly authorized Court Officer that the document is a true copy.
7. TRANSLATION OF DOCUMENTS
- Only documents in English or Irish are recognized without the necessity for translation.
- The translation must be certified by a Notary Public or qualified person in the foreign jurisdiction and authenticated by Affidavit. It is preferable to have a Notary Public certify the translation.
8. REOPENING OR REVIEW OF JUDGMENTS
(a, b) The local court will not review the foreign judgment if all formalities have been complied with and if the judgment meets local requirements.
(c) For enforcement at Common Law, an allegation of fraud can be raised in proceedings before the local court even when such an allegation had not been raised before the foreign court.
9. PENDING PROCEEDINGS
- There is no Irish law authority on the effect on enforcement actions in Ireland of proceedings instituted by the defendant prior to the granting of judgment. The possibility of such proceedings in an EU Member State or in a Contracting State to the Brussels or Lugano Conventions involving the same cause of action is contrary to the provisions of the Brussels Regulation and the Brussels and Lugano Conventions in any event. For proceedings instituted in other jurisdictions, the Irish Courts would likely be unwilling to proceed with enforcement given the risk of potentially conflicting judgments.
- In the event of an appeal pending, the Irish courts may grant a stay on the enforcement proceedings pending determination of the appeal. If by lodging an appeal in the foreign jurisdiction there is a stay, enforcement in Ireland will not be permissible during the stay period.
For enforcement under the Brussels Regulation and the Brussels and Lugano Conventions, once the conditions of Order 42A of the Rules of the Superior Courts are met by the applicant for enforcement, enforcement is authorized by the Master on an ex parte basis. There is no basis for the respondent to raise defences to such an enforcement application, although an appeal against enforcement does lie to the Supreme Court.
For enforcement under Common Law of judgments from other jurisdictions, a respondent may seek to resist enforcement by relying on one of the following defences:
- Lack of jurisdiction.
- Where the judgment is contrary to Irish public policy or Irish principles of natural justice.
- Where the judgment is inconsistent with an earlier judgment based on the same cause of action.
Originally published by Wolters Kluwer.
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.