If a debtor has assets in England & Wales or is located here, a judgment creditor of a foreign jurisdiction may wish to enforce the judgment here.
How the judgment is enforced will depend on where the judgment originated and the nature of the judgment or order.
European Enforcement Order Regulation (EEO)
A judgment creditor can apply for a EEO certificate within the EU and the judgment will then be treated by the courts as if the judgment originated here and usual methods of enforcement will apply (please see our articles on “Legal Advice for recovering debt after getting a judgment” and “How can you recover money from a debtor against whom you have a judgment” and “If you have a foreign judgment against you, are your assets at risk here?”). This method can be used where the dispute was of a straightforward nature and relatively uncontested.
The Brussels Regulation
The Regulation also applies to all EU countries and provides for relatively straightforward procedures for the mutual recognition and enforcement of EU judgments. This method can be used where you are seeking to enforce a less straightforward non-monetary judgment. There are specific steps which need to be taken, but so long as these formalities are fulfilled, the judgment is enforceable and the enforcing court should not re-examine the case. The matter can be appealed if it goes against public policy or the judgment cannot be reconciled with an earlier judgment.
The Lugano Convention
This governs the enforcement of judgments as between Iceland, Switzerland and Norway; and all pre-2004 EU states plus Poland (apart from Poland, those EU states that joined the EU on 1 May 2004 have not ratified the Lugano Convention).
The procedure is again broadly the same as under the Brussels Regulation. However, the enforcing court in England or Wales can exercise a discretion and refuse to recognise and enforce the judgment if it goes against public policy; if it is deemed that the debtor did not have time to respond to the original claim; the judgment is irreconcilable with a judgment given in a dispute between the same parties in England and Wales, regardless of the order in which the conflicting judgments were given.
The Administration of Justice Act and the Foreign Judgments (Reciprocal Enforcement) Act cover former and current Commonwealth countries, and include Crown states such as the Isle of Man and Jersey. On registration of a judgment from a listed country, the judgment can be enforced here. It must be final, for a specific sum, not in respect of fines or taxes, not obtained by fraud or in breach of a jurisdiction or arbitration agreement. The originating court must have been able to deal with the matter before it (that is, the court must have been able to hear the matter because of location or authority) otherwise the judgment cannot be registered and is open to challenge.
An application to register under the Administration of Justice Act must be made within 12 months of the date of the judgment (though this can be extended in some circumstances). An application to register under the Foreign Judgments (Reciprocal Enforcement) Act must be made within 6 years, or where there have been appeal proceedings six years from the date of the last judgment given in those proceedings.
The debtor can apply to set the judgment aside on various grounds under both Acts.
The common law
If an originating country does not fall within any of the above then new legal proceedings will need to be stated. The matter will be heard more quickly by way of a summary judgment process (unless fraud is alleged). The judgment to be enforced can be challenged if there is no jurisdiction to hear the matter under English law. Again, only a final, specific money judgment can be enforced and the courts here will not enforce punitive judgments such as for taxes, punitive damages and fines.
Summary and impact of Brexit
As set out above, enforcement of recognised judgments as part of a unified European regime makes it less costly and complex for commercial parties to do business and to ensure that they are able to recover debts owed to them by other European businesses.
The position post-Brexit would depend on whether the UK was able to negotiate its own agreement with the EU or supplemented its position in another regime. However, the process will likely be more complicated and perhaps more lengthy as a consequence as with those countries listed under the other regimes (Lugano and other agreements).
If you would like to find out more about this, or any of the issues referred to above, please contact Bhavini Kalaria at The London Law Practice on 0208 343 6042 or firstname.lastname@example.org