Enforcement of Foreign Judgments in England

When a litigant obtains a judgment in a foreign country, is a necessary adjunct to international trade and commerce that litigants are able to enforce that judgment in other jurisdictions with relative ease. When enforced in England provides a remedy to satisfy an order to pay damages against a domiciled defendant or a defendant which owns assets in England. This article considers recognition and enforcement of judgments in England which were originally obtained in jurisdictions outside the European Union, including the US and Russia.

Final and Conclusive Judgment

When a final and conclusive judgment has been obtained in United States of America, Russia, the Middle East and other countries, common law rules apply whereby English Courts oversee the enforcement of foreign judgments obtained in those foreign courts in England. For many other countries, common law rules have been supplemented or replaced by treaties and conventions that allow a more effective procedure to satisfy a foreign judgment in England.

Supervisory Role of Courts

English courts exercise a supervisory jurisdiction of judgments to be enforced here in England. Generally speaking, unless a treaty or convention applies, foreign judgments are enforced by commencing fresh proceedings in England that are focused upon (1) recognition of the foreign judgment in England, and (2) obtaining an English judgment for the purposes of enforcing the foreign judgment in England. Those fresh proceedings are commenced with a view to applying and obtaining Summary Judgment.

Procedure for Recognition

The typical procedure to enforce a foreign judgment includes:

1. Issue new proceedings in the High Court of Justice for recognition of the foreign judgment in England;
2. Serve those proceedings upon the defendant either within the jurisdiction or outside the jurisdiction;
3. Rebut the availability of any defences said to be available to the Defendant, if any are raised;
4. Obtain Summary Judgment, on the basis of the foreign judgment;
5. Enforce the English judgment obtained by way of Summary Judgment against the assets of the Defendant either in the UK or in Europe.

In the absence of either of these steps, a foreign judgment has no force or effect in England. There can be recognition without enforcement, but never enforcement without recognition. The reason for applying to have a foreign judgment recognised in England in the absence of an intention to enforce it, includes using the foreign judgment as a defence in English legal proceedings, where a party to the foreign proceedings wishes to re-litigate the claim.

Foreign Judgments Generally

A judgment obtained in a foreign court is prima facie enforceable in England. If the judgment is overturned on appeal in the original jurisdiction, it ceases to be enforceable in England. Thus a judgment creditor is entitled to enforce a foreign judgment in an English court where:

1. The foreign court was competent to hear the dispute, that is, the matter was within its jurisdiction. The person may have been domiciled in the country in question, submitted to the jurisdiction of the court (but not merely for the purpose of contesting the jurisdiction of the foreign court) or entered into a jurisdiction agreement subjecting him to the jurisdiction of the country’s courts. Each of these gives jurisdiction over the defendant on separate grounds.
   Corporate defendants are, as a general rule considered to be present in jurisdiction where they have maintained a fixed place of business at their own expense, using its own employees or consultants, or where a representative has been carrying on the corporation’s business from a fixed address for more than a minimal period of time.
2. The judgment in question is final and conclusive on its merits. That is to say, that the judgment is not an interim judgment, and the decision is not able to be reconsidered by the court in which it was made, or varied by the court that made it, Simply because a decision may be appealed does not deprive it of retaining the nature of being a final and conclusive judgment.
3. The judgment is for a fixed sum of money, which is not a tax or a penalty. English courts will not operate to enforce revenue laws of a foreign state, nor will they enforce a sum payable to a foreign state. The sum must be payable to a private individual or company within the meaning of English private international law.
4. The defendant to the English proceedings does not make out one of the very limited defences available to enforcement available to it.

Reasons for Recognising a Foreign Judgment

There are two circumstances in which a claimant or defendant might wish to have a foreign judgment recognised in an English court. In the main, the purpose of doing so is for enforcement of the foreign judgment. It may be that a party to the previous litigation wishes to use the judgment as a bar to further litigation in England, or to prevent further recovery over and above what was obtained the foreign jurisdiction.

In order for the judgment to be recognised, the decision must be res judicata of the issues dealt in the foreign litigation. Accordingly, the defendant to fresh litigation in England may plead:

1. If the claimant was unsuccessful in foreign litigation, it is precluded from commencing fresh litigation against the defendant in England for further, alternative or other relief;
2. If the claimant was successful in the foreign litigation and received an award of damages, the defendant defends the fresh litigation on the basis that the sum of damages has been determined by the foreign court, and the claimant is not entitled to re-litigate the issues in England to attempt to obtain a higher award of damages;

The matters that are prevented from being re-litigated extend to the causes of action based on facts alleged in the foreign court, in addition to any causes of action that may have been argued on the facts, whether or not they actually were presented to the court for determination. Thus, the formal defences of cause of action estoppel and issue estoppel are available to be pleaded to prevent re-litigation.

If the successful party wishes to enforce the judgment in England, after recognition of the judgment, the unsuccessful defendant is prevented from raising the same defences.

Defences

English courts will decline to recognise or enforce the foreign judgment where the judgment:

1. seeks adjudicate on ownership or rights to possession of land or other immoveable property outside the jurisdiction of the English Court.
2. was entered in the overseas country, and since that time new evidence has becomes available which the defendant ought to be entitled to raise in recognition proceedings.
3. is contrary to English principles and standards of justice.
4. conflicts with a previous judgment decided in England or previous decision that was recognised. This ground does not give the court a jurisdiction to conduct a hearing de novo; the error must to be manifest.
5. was made without granting the defendant an opportunity to defend the proceedings, either by way of a failure to notify the defendant of the proceedings, or declining the opportunity to the defendant to argue the substantive merits of his case, or a procedural irregularity that has a similar effect.
6. the judgment was obtained by fraud. Instances may include where the foreign court was misled by the claimant; the defendant was deceived so as to not appear before the court; or the decision was corruptly procured.
7. was contrary to an agreement where the dispute would be settled in the country other than the country in which it was obtained, the defendant did not consent to that change of jurisdiction or submit to the jurisdiction of the foreign court.
8. is otherwise contrary to English public policy.

A special case for enforcement of proceedings emanating from the United Stated prevents enforcement of judgment in English of damages awards arrived at by multiplying a sum of damages by any factor. The unmultiplied award remains recoverable in England.

In addition where the foreign decision is based on a rule of law made pursuant to an order of the Secretary of State of a country, and that order is concerned with arrangements to restrain, distort or restrict competition or otherwise interfere with competitive markets.

 

Service of Originating Process – The Claim Form

To invoke the jurisdiction of English courts, the originating process must be served upon the defendant. This is the case in respect to enforcement of foreign judgments, as fresh proceedings are commenced in England to enforce the foreign judgment in order for (1) recognition and (2) enforcement.

Where the intended defendant of the enforcement proceedings is located in the European Community, permission is not required from a court to issue the proceedings, however other formal requirements must be adhered to, failing which service will not be effective. This would have the effect that the jurisdiction of the Court has not been invoked. Courts jealously guard against abuse of process, and are cautious to ensure that defendant have been properly served prior to making substantive decisions in respect to liability of the defendant in the absence of service.

Unless an exception to this permission requirement is set out in the Civil Procedure Rules, the intending claimant will be required to apply to the court to obtain permission to serve the originating process (namely a claim form) outside of the jurisdiction. This process is designed to ensure that there is sufficient nexus to invoke the exorbitant jurisdiction of the court. Invariably the claimant will be required to produce a certificate of service (also known as an affidavit of service) to evince proper service of the proceedings upon the defendant.

When service of process has taken place English courts have jurisdiction to hear and determine the disputes between the parties, unless the defendant is able to successfully persuade the court that England is not a proper place for the disputes between the litigants to be heard. In the event that the litigation has no connection with England, the court is at liberty to order stay of proceedings as the dispute has no business before English courts. Courts will also be reluctant to allow litigation to be commenced where there are parallel proceedings in another country or Member State of the Brussels Regulation. Good reasons would need to be shown to allow a continuation.

Grounds of Jurisdiction of English Courts

If the foreign judgment is sought to be enforced, the fresh proceedings must be served in accordance with English law. If enforcement is sought against a foreign defendant (a company or an individual), the jurisdiction of the English court is invoked where:

1. the defendant has been personally served. This may take place where the defendant is in the jurisdiction, even on a transitory basis. The court may decide at a later date that English courts and the lex situs is forum non conveniens; or
2. the defendant has submitted to the jurisdiction of the court.

The policy basis to these rules lies partly in the supervisory role that civil courts play in the administration of justice in England and Wales. The approach mitigates against enforcement of judgments from foreign jurisdictions that exercise excessive extra-territorial (or exorbitant) jurisdiction, the judgment may have resulted from an injustice in the foreign jurisdiction (such as where the defendant was not given an opportunity to present its case; not being given sufficient time to prepare for the case; or where the judgment was obtained by fraud), or the judgment is contrary to the requirements of public policy in the jurisdiction.

Turning now to personal service and submission to the jurisdiction.

1. Personal Service

The default rule requires that initiating process must be served within the jurisdiction. If the intended defendant is out of the jurisdiction, special rules apply to effect service.

Individuals in the UK

To commence proceedings against the intended defendant, the claim form and particulars of claim are served upon the defendant within the jurisdiction. Service is usually effected by first class post. Initiating process may also be served personally. To effect service, the court documents may be left with the person, that is by handing the document to them or placing somewhere near them with a brief explanation of the nature of the documents. The documents may also be sent by document exchange or facsimile to the last known address of the business.

When a person is present in England they are subject to the jurisdiction of the courts. Accordingly, when a person is in England, the legal system takes the view that they are subject to the justice system in England and subject to service, in the same way and means as any other person within the jurisdiction.

Solicitors acting on behalf of the defendant are able to be served, provided that they have been instructed to do so and have confirmed the same in writing - provided that the rules of court do not require otherwise. In the case that an individual defendant does not have solicitors acting for them, and no address for service has been provided, the ‘usual and last known residence’ of the person may be used to effect service by leaving the documents at the address, provided that they are in the jurisdiction at the time of service.

Companies in the UK

Service against a corporate defendant may be completed by posting or leaving the claim form and particulars of claim to the registered office of the company. This remains the case if the company conducts no business in the UK and/or trades entirely overseas. Documents may also be served by leaving documents with a person holding a senior position with the company or corporation.

Partnerships

In the case of partnerships (and not limited liability partnerships), it may be served by leaving it with the originating process at its principle place of business or serving it on a partner within the jurisdiction. If the foreign business does not have a place of business in the UK, it cannot be served.

Foreign Companies

The originating process may be served in accordance with Part 6, which permits service on any place within the jurisdiction where the business carries on its activities or any place of business of the company within the jurisdiction.

In the case where the company does not satisfy either of the foregoing criterion, and trades from overseas into the UK without a presence here, permission must be sought from the Court to serve the originating process out of the jurisdiction.

When the Brussels Regulation is relied upon to establish the jurisdiction (the legal person is a member of a State of the European Union), the transitory presence of the defendant in England cannot be relied upon.

 

2. Submission to Jurisdiction

A defendant may submit to the jurisdiction of an English Court voluntarily by (1) entering an appearance in the proceedings, (2) agreeing to submit to the jurisdiction in a contract by way of a jurisdiction agreement, which usually takes the form of a jurisdiction clause in a contract. When parties agree that specific courts will have jurisdiction, that agreement will normally be allowed and enforced, subject to the application of the principles of forum non conveniens.

By Contract

Where a contract evinces an agreement to the jurisdiction and specifies how the claim form is to be served, service may be effected in accordance with the contract provided (1) the claim only contains claims arising from the contract and (2) where the Brussels Regulation applies, but not otherwise. In the event that the defendant (corporate or otherwise) is not a resident of a member state of the Brussels Regulations, the permission of the High Court must be obtained.

In the case that the claims do not fall within the scope of the Brussels Regulation, or the agreement does not provide for service of process, permission of the court must be obtained.

Entering an Appearance

When a person out of the jurisdiction voluntarily enters an appearance before a court of England (other than to contest jurisdiction of the court), the court has jurisdiction over the defendant. The principle applies whether or not there is a previous agreement between the litigants. The rationale is based on the theory that a person who would otherwise not be subject to the jurisdiction of the courts consents to the jurisdiction by challenging the merits of the case.

Usually the first form of communication with a court by a defendant will be by filing an acknowledgement of service. It is at this point that the defendant notifies the court that it intends to contest the jurisdiction of the court. By failing to file an acknowledgement of service (assuming service has been properly effected), the claimant may proceed to obtain Summary Judgment on the claim. Any other step that amounts to a recognition of the court’s jurisdiction in respect to the particular claim will be taken to be a submission to the jurisdiction, such as filing a Defence or requesting an extension of time for filing a Defence.

 

Enforcement Procedures in England

Once an English judgment has been obtained, an array of procedures is available to enable a judgment creditor to satisfy the debt against a business. The means by which recovery will take place will usually be determined well before an application for recognition of the judgment in the UK.

Preliminary Relief: Freezing Orders

It is always a risk that the defendant to the enforcement proceedings will look to dispose of assets within the jurisdiction, or remove assets from the jurisdiction. In such circumstances, and where the risk may be proved to be real and not fanciful, it is open to the judgment creditor to apply for a freezing order to freeze the assets of the judgment debtor, including bank accounts, personal and real property, and any other assets subject to further order of the court. This is done by filing evidence in support of the risk of disposal of the assets of the defendant, preferably with evidence of the defendant's assets and means.

Methods of Recovery

The most obvious method for recovering against an English judgment is to take advantage of bankruptcy or insolvency proceedings under the Insolvency Act. Prior to issuing a bankruptcy petition against an individual, a statutory demand must be personally served. In the case of companies, statutory demands may be served upon the registered address of the company or a winding petition served for the purposes of appointing a liquidator.

Third Party Debt Orders are available to secure payment from creditors to the judgment creditor directly.

Where the judgment debtor owns real property in the UK, a charging order will provide security in the nature of a mortgage to the judgment creditor. Where the judgment debtor fails to pay the debt within the time specified in the order, or failing such specified time, 14 days, an application notice may be filed without notice requesting that the court issue an interim charging order. The order will specify a date upon which the court will hear an application for a final charging order, and as a matter of course it will be made unless the judgment credit has engaged in some form of disentitling conduct.

Also, writs of fieri facias enable the judgment creditor to execute judgment over goods owned by the judgment creditor. English Courts also have power to appoint a receiver for equitable execution, in order for the judgment creditor to satisfy the judgment. These are the most useful means by which to recover against companies, and further means exist to recover against individuals.

 

Obtaining the Judgment

There are several fundamental steps to enforcing a foreign judgment against a defendant in England. Firstly, the claimant must issue fresh proceedings in England, and thereafter serve those proceedings upon the defendant to the satisfaction of English Courts. If it is the case that the defendant takes a substantive step in the litigation, it will be deemed to have submitted to the jurisdiction of the court and disentitle itself to contesting the jurisdiction of the Court at later date.

Thereafter, if the foreign judgment is one that is able to be recognised in the Court of England, it is likely that the matters set out in the foreign judgment will be res judicata, leaving no defence to the defendant to enforcement of the claim in England against the assets of the defendant.