Enforcement of foreign judgments after Brexit
It’s subject to:
- the UK’s application to accede to the Lugano Convention on recognition and enforcement of judgments which would cover both EU and European Free Trade Association (EFTA) states
- the UK deciding to accede to the Hague Judgments Convention 2019 which would provide a further basis for the enforcement of foreign judgments
It does not address the enforcement of judgments:
- in proceedings instituted before 31 December 2020, to which EU rules continue to apply under article 67 of the Withdrawal Agreement
- from Scotland or Northern Ireland
In the absence of any further agreement on jurisdiction and enforcement of judgments, there are three different regimes for the enforcement of foreign judgments in England and Wales.
Only money judgments are enforceable, unless they fall within the Hague Convention 2005 (the first category below).
1. Hague Convention states
Judgments are enforceable from states that are part of the Hague Convention on Choice of Courts Agreements 2005 (including all EU member states).
However, this only applies where the court had jurisdiction under an exclusive choice of court agreement made after the Hague Convention came into force in the relevant state.
2. Reciprocal treaties
Judgments are enforceable from countries that have:
- a reciprocal enforcement treaty with the UK, and
- are covered by the Administration of Justice Act 1920 (AJA 1920) or Foreign Judgments (Reciprocal Enforcement) Act 1933 (FJREA 1993)
The UK maintains pre-Brussels Convention treaties with certain EU and EFTA member states, which were incorporated into English law under the 1920 and 1933 acts.
For example, bilateral treaties were made between the UK and:
- France (1934)
- Germany (1961)
- Norway (1961)
- Austria (1962)
- Italy (1964)
- the Netherlands (1969)
Arguably, these treaties were superseded by EU rules, but the relevant legislation has never been amended to exclude these countries. In the case of Norway, the 1961 treaty was specifically extended in 2020.
3. Common law
Where common law rules apply to a judgment, it is still enforceable, even if it falls outside the two regimes above.
Conditions for enforcement of a foreign judgment in England and Wales
Where the Hague Convention 2005 or the AJA 1920 or FJREA 1993 applies, a judgment is enforced by applying to the High Court of England and Wales (King’s Bench Division) for registration of the judgment under part 74 of the Civil Procedure Rules. Where these do not apply, a judgment is enforced at common law by bringing an action on the judgment as a debt. Summary judgment procedures will usually be available.
The judgment must:
- be for a definite sum
- be final and conclusive
- be given by a court with international jurisdiction as a matter of English law (which requires the debtor's agreement or submission to the foreign jurisdiction or presence within its territory)
- not have been issued in respect of taxes, fines or 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.
A foreign judgment may be final and conclusive even though an appeal is pending in the relevant foreign court.
A judgment will not be enforced where it was obtained by fraud or is contrary to public policy or the requirements of natural justice.
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