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Enforcement of foreign judgments after Brexit
This guidance relates to the enforcement of foreign judgments in civil and commercial matters in England and Wales from the end of the Brexit transition period.
- for UK lawyers involved in cross-border civil or commercial proceedings in relation to EU member states
- subject to the UK’s application to accede to the Lugano Convention on recognition and enforcement of judgments which would cover both EU and EFTA states
In the absence of any further agreement on jurisdiction and enforcement of judgments, it remains necessary to apply national law to enforce a judgment from a court of one of the EU 27 or EFTA states in England and Wales.
This means that common law rules relating to recognition and enforcement of judgments apply:
- where the originating jurisdictions do not have applicable treaties in place with the UK, or
- in the absence of any applicable UK statute
Conditions for enforcement of a foreign judgment in England and Wales
The High Court of England and Wales (Queen’s Bench Division) is the relevant court in which to bring an application for the recognition and enforcement of a foreign judgment in England and Wales.
Summary judgment procedures will usually be available. The procedures for the enforcement of foreign judgments are governed by part 74 of the Civil Procedure Rules.
The judgment must:
- be for a definite sum
- be final
- not have been issued in respect of taxes, penalties or multiple damages awards
The leading case on enforcement of judgments at common law, and which summarises the key requirements, is Adams v Cape Industries plc (1990) Ch 433.
The Court of Appeal has issued further guidance on the principle of finality, saying that a foreign judgment will be considered final and binding where it “would have precluded the unsuccessful party from bringing fresh proceedings in the [foreign] jurisdiction” (Joint Stock Company ‘Aeroflot-Russian Airlines’ v Berezovsky and anr  EWCA Civ 20).
Generally, courts in England and Wales will not give judgment permitting enforcement in such an action where:
- the original court lacked jurisdiction according to the relevant English and Welsh conflict of laws rules (which require the defendant’s assent or submission to the foreign jurisdiction or presence within its territory), or
- the judgment was obtained by fraud or is contrary to public policy or the requirements of natural justice
The exceptions relate to situations where:
The parties have agreed a choice of court agreement
The UK and the EU are parties to the Hague Choice of Court Agreements Convention 2005, which may help where there is an exclusive choice of court agreement, which is agreed or concluded after the entry into force of the convention.
An old bilateral agreement still exists that provides for a different procedure
The UK maintains a number of pre-Brussels Convention treaties with certain EU and EFTA member states, which were incorporated into English law under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (FJA) and the Administration of Justice Act 1920.
While it may be arguable that these conventions have not ceased to exist and judgments from these states should be enforceable under the FJA, this is likely to be the subject of litigation as these conventions were largely superseded by EU rules and have not been applied since 1987, when the Brussels I Convention took effect in the UK.
Prior to joining the EU, the UK had entered into bilateral treaties for the reciprocal recognition and enforcement of judgments in civil matters with a number of European states.
So, for example, bilateral treaties were made between the UK and France (1934), Germany (1961), Austria (1962), Italy (1964) and the Netherlands (1969).
While these conventions were superseded by EU law, they are still in force and potentially could be revived to provide a mechanism for recognition and enforcement.
And, in the UK, enforcement of judgments from those European jurisdictions may once more need to be effected pursuant to the FJA.
All other cases will fall under common law, according to which a foreign judgment is not directly enforceable in the English or Welsh courts but can be the subject of a fresh action for enforcement of a debt in the High Court.
Instituted proceedings: cases pending at the end of transition
Under article 67 of the Withdrawal Agreement, EU rules on jurisdiction, recognition and enforcement of judgments will continue to apply to UK-EU cross-border disputes where civil or commercial proceedings have been instituted before the end of the transition period.