Typically, disputes are resolved and enforced in the same jurisdiction, after all both parties likely needed to be near each other for a claim to arise. However, there can be times when disputes can’t be enforced where they are adjudicated, and one needs to enforce a judgment across national borders to satisfy it.
When the time arises that one needs to enforce a foreign judgment in the UK, then whether they can or not, can be a difficult question to answer.
To enforce a foreign judgment in England and Wales it must be recognised by the court once recognised the judgment can be enforced as if it were a judgment originally adjudicated in England and Wales. Broadly there are three ways of recognising a foreign judgment in the UK each of which depends on the jurisdiction the judgment was initially obtained in.
Enforcing Hague Convention Judgements
The easiest route to recognise a foreign judgment occurs when the judgment is from a jurisdiction that is bound by the Hague Convention on Choice of Court Agreements 2005. This includes all EU states as well as Singapore, Montenegro and Mexico. To have such a judgment recognised an application must be made to the High Court with an authenticated copy of the judgment, along with an appropriately certified English translation.
The application would also need the details of the judgment including the names of the parties, their addresses, the grounds on which the judgment can be enforced, and should it be a money judgment the amount due and owing, and any amount of interest accrued on that sum. Further such an application would need evidence to show that the judgment is enforceable in the originating jurisdiction. The application does not require serving notice on the responding party.
Should this application be successful, then the court can issue a registration order, as drafted by the claimant. This will then be served on the respondent, and only then will they have an opportunity to appeal against this order to register the foreign judgment.
As you can see, this is a very simplified procedure, that places the onus on the respondent to take positive action to prevent the judgment from being enforceable. This makes this route the simplest, of the means to enforce a foreign judgment in the UK
Enforcing a judgment under the Statutory Regime
There are several countries which while they are not part of the Hague Convention, the UK has specific agreements with which ease enforcement of judgments from those jurisdictions. These are implemented by the Administration of Justice Act 1920 (“AJA 1920”) and the Foreign Judgments (Reciprocal Enforcement) Act 1933 (“FJA 1933”), creating the statutory regime. These cover mostly commonwealth countries, with the former covering for example many Caribbean nations and New Zealand, while the latter covers for example Australia, India and Israel.
This statutory process is more limited and involved than the procedure under the Hague Convention. The most notable limitation is that this regime only applies to money judgments, with even orders such as a freezing order or an order for ancillary disclosure not possible to enforce using this method. The regime also requires the judgment to originate from a court which has jurisdiction over the matter which the judgment was concerning. For the AJA 1920, this requires the debtor to be an ordinary resident, or to have carried on business in the originating jurisdiction, and for the FJA 1933, this requires the debtor to be resident in the country, to have its principal place of business in the jurisdiction or for the matter to concern land within the jurisdiction. Further to this, if the debtor agreed to the jurisdiction before proceedings, appeared voluntarily at the proceedings, or was the claimant/counterclaimant, this would confirm that the originating court had jurisdiction.
To utilise the procedure, one must apply to the High Court, with an authenticated copy of the judgment, a certified translation of the judgment with statement confirming its accuracy if needed and with a witness statement giving details of the judgment which is compliant with the relevant civil procedure rules. This application is without notice, if granted, a registration order must be drafted and served on the debtor, and only then can the debtor contest the application with an application to set aside the order.
This procedure, while longer than the procedure under the Hague Convention, is still simpler than having to go through the full litigation process and still places the onus on the respondent to prevent the enforceability of the judgment. While this makes this route appealing for qualifying judgments, one would need to take care that the judgment satisfies the greater limitations this process requires.
Enforcement under the Common Law Regime
For all other judgments, not covered under the previous two regimes, it will fall under the common law regime. At common law, a judgment is considered to create an obligation which can be enforced as a debt in fresh legal proceedings. These judgments must be final and conclusive, for a sum of money which are not taxes, a fine or other penalty, and must have been decided “on the merits”. A judgment is decided “on the merits”, if it establishes a set of facts as proven, states what are the relevant principles of law that are applicable to those facts and uses those facts and the law to make a conclusion on the effect that the law and the facts show reach.
A judgment would still need to have jurisdiction for it to be enforceable. This can be found either through consent, for example in a contract, or if the original court had territorial jurisdiction, for example if the debtor was resident in that jurisdiction. Should these be satisfied then an application can be made in the normal fashion to start proceedings. This could require serving outside of the jurisdiction, which unlike the previous two regimes this would require the court’s permission to do.
Once this application has been made, proceedings continue in the normal fashion. While it is likely that a summary judgment application can be made successfully when bringing proceedings for enforcement of a foreign debt, this is not guaranteed, as the litigation could be defended similarly to any other official proceedings.
This clearly is a far more involved process than the other two regimes and is more expensive to litigate. However, it can ensure that foreign judgments from any foreign jurisdiction can be enforced in the UK.
Enforcing a judgment in the UK
Once a judgment is recognised in the UK, this is not the end of the matter. Like judgments originating in England and Wales, one still needs to enforce the judgment and recover the sums owed. There are several ways available for a claimant to enforce their debt in England and Wales. Unlike the prescribed pathways for recognising a judgment, these enforcement mechanisms are all available and which method a claimant utilises will depend on the circumstances. There are four main ways of enforcing a judgment.
Third party debt order
A third party debt order is an order from the court against a third party to the judgment. This third party is one who owes money to the debtor and this order mandates that the third party makes this payment to the claimant rather than the debtor, in order to satisfy in part or in full the judgment against the debtor. This is particularly useful as it can be used against the debtor’s bank account, should it be in credit, this would mandate the bank pay these funds to the claimant instead of keeping them for the debtor.
A Charging order is an order which grants the recipient a charge over the debtor’s property. A charge is extremely valuable for a claimant seeking to enforce a judgment, this provides security to the claimant should the debtor continue to fail to make the required payments. However, a charge does not immediately translate into money to satisfy the judgment. This can lead to an order for sale of the property, after which the sale proceeds can be used to satisfy the judgment. However for any proceeds to be to be allocated to the claimant the debtor needs to hold equity in the property. This is also effected as the first charge registered against a property will have priority at sale, meaning that a charge can still fail to enforce the debt.
Writ of Control
This is an authorisation from the court, allowing a court enforcement officer to seize the debtor’s goods up to the value of the judgment in order to sell them at auction. Typically goods available for seizure with this method only make up a small amount of the total judgment, however this can still be useful to consider in particular circumstances.
Lastly, a claimant can apply to the court to place the debtor into insolvency proceedings. This would involve an individual being appointed to review the debtor’s finances to attempt to pay off its creditors. This is typically a last resort and extreme option, as this can mean traders cease to operate completely making any future payment of the debt impossible. If you are looking for assistance enforcing a judgment in the UK, the dispute resolution department has significant experience in this area and we can assist you through the correct procedures and advise you regarding the best enforcement methods to recover debts.
*This article was co-authored with David Hart.