The law pertaining to recognition and enforcement of foreign judgments in the United Kingdom can be found in a number of different sources, including treaties, statutes and the common law. The application of the law depends primarily on the jurisdiction whose courts have issued the foreign judgment (‘original’ judgment or court), as well as the date of issue and subject matter of the foreign proceedings. Further details on non-treaty sources of law can be found in question 3. The United Kingdom comprises three separate court systems in (i) England and Wales, (ii) Scotland and (iii) Northern Ireland. While the treaty obligations and the key relevant statutes apply equally to all three jurisdictions, the common law and applicable procedure may vary. This chapter focuses primarily on the law and procedure of England and Wales.
Recognition and enforcement of judgments
The United Kingdom is party to treaty-based schemes for the enforcement of judgments as a member of the European Union (EU) and the European Economic Area (EEA). The position of these European regimes in light of the UK’s impending exit from the EU (or Brexit) is discussed in question 29.
The Recast Brussels Regulation (EU) No. 1215/2012 (Recast Regulation), which reformed Regulation (EC) No. 44/2001 (Brussels I Regulation), provides for the speedy and simplified enforcement of judgments obtained in the courts of one EU/EEA member state in all other member states. The Recast Regulation came into force on 10 January 2015 and applies to any case brought on or after that date (Brussels I will continue to apply to any case that was brought prior to 10 January 2015). The Recast Regulation (and, as applicable, the Brussels I Regulation) applies to orders of courts and tribunals of any nature in civil and commercial matters, with the exception that it specifically excludes revenue, customs and administrative law matters; although in a recent judgment in Pula Parking d.o.o. v Tederahn (Case C-551/15), the Court of Justice of the European Union (CJEU) held that where a company owned by a public authority is exercising its functions independently of the public authority that owns it, the relationship between the parties to a dispute may be one in private law. Proceedings between these parties will come within the definition of civil and commercial matters. The Recast Regulation also does not apply to orders pertaining to matrimonial relationships, wills, succession, bankruptcy, social security or arbitration. Judicial decisions on the Recast Regulation and the Brussels I Regulation by the CJEU are binding on member states. Under both the Recast Regulation and the Brussels I Regulation the default rule on jurisdiction applies, meaning that if a defendant is domiciled in an EU member state such as the United Kingdom, it must be sued in the United Kingdom unless the claim falls into one of the exceptions listed in the instrument. For example, in tort actions the defendant may be sued where the harmful event took place and in contract cases the jurisdiction where the contract is to be performed.
Judgments covered by the Brussels I Regulation first need to be registered in the part of the United Kingdom (England and Wales, Scotland or Northern Ireland) in which enforcement will be sought, by way of an application for registration (registration is referred to in many of the EU/EEA instruments as obtaining a declaration of enforceability). This process is known as exequatur. A defendant may object on the following grounds:
- the original court lacked jurisdiction to hear the matter (the Brussels I Regulation contains detailed provisions in that regard);
- recognition and enforcement would be manifestly contrary to UK public policy;
- the defendant was not served with proceedings in time to enable it to prepare a proper defence; or
- conflicting judgments exist in the United Kingdom or other member states.
However, the Recast Regulation has abolished this procedure, and article 39 of the Recast Regulation provides that a judgment that has been given in a member state and is enforceable in that member state shall be enforceable in other member states without the need for a declaration of enforceability. As described more fully in questions 9, 19 and 20, an application can be made for the courts of the relevant member state to refuse enforcement by the party against which enforcement is sought as follows:
- if the enforcement would be manifestly contrary to UK public policy;
- if the defendant was not served with proceedings in time to enable it to prepare a proper defence; or
- conflicting judgments exist in the United Kingdom or other member states.
Insofar as matters within the scope of the Recast Regulation and the Brussels I Regulation are concerned, they supersede the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968. This is true for the following member states: Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden. The two Regulations also supersede a number of bilateral enforcement treaties that the United Kingdom had previously entered into with other member states. The Brussels Convention 1968 continues to apply between a limited number of territories and EU member states. The Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 2007 (in force since 2010 and replacing the previous Lugano Convention of 1988) applies to enforcement of judgments given in Iceland, Norway and Switzerland on substantially similar terms to the Brussels I Regulation.
The European system also includes three procedures aimed at simplifying and speeding up the process and reducing the cost of recognition and enforcement. Where these procedures are used, the resulting judgments can be enforced without the need for further registration in other member states.
Where a judgment for a specific sum of money has been obtained in uncontested proceedings - meaning that the debtor has admitted to liability, failed to object or failed to appear - the judgment can be certified by the issuing court under Regulation (EC) No. 805/2004 (European Enforcement Order (EEO) Regulation). The certified judgment can then be recognised and enforced in other member states with little possibility of the defendant opposing its enforcement, except in the case of conflicting judgments. The EEO Regulation applies to judgments given after 21 January 2005 and requires that certain minimum procedural standards be met prior to certification. The EEO Regulation’s application is limited to contracts concluded between certain classes of parties; the CJEU has previously held that the EEO Regulation does not apply to contracts between two persons who are not engaged in commercial or professional activities (see Vapenik v Thurner (Case C-508/12)  CJEU)).
As an alternative, where a civil or commercial claim does not exceed €5,000, excluding interest, expenses and disbursements, cross-border claims may be brought under the simplified procedure laid down in Regulation (EC) No. 861/2007 (European Small Claims Procedure, as amended by Regulation (EU) No. 2015/2421). Court fees for the European Small Claims Procedure ‘shall not be disproportionate and shall not be higher than the court fees charged for national simplified court procedures in that member state’ (article 15a of Regulation (EC) No. 861/2007, as amended).
A third avenue exists in the European Order for Payment Procedure (EOP Procedure) under Regulation (EC) No. 1896/2006 (as amended by Regulation (EU) No. 936/2012 and Regulation (EU) No. 2015/2421). The EOP Procedure provides standardised forms and procedures for pursuing uncontested money debts, without imposing any maximum value. Judgments given under the European Small Claims or EOP Procedures are enforceable in other member states without the need to first be certified or registered. In Case C-215/11, Szyrocka v SiGer Technologie GmbH , All ER (D) 172 (Dec), the CJEU gave its first ruling on the EOP Procedure, clarifying that although national courts are not permitted to impose additional requirements for an EOP Procedure, they remain free to determine the amount of court fees applicable. However, following the amendments made to the EOP Procedure by Regulation (EU) No. 2015/2421, court fees for the EOP Procedure must not be greater than those for proceedings where there is no preceding European Order for Payment (ie, the fee that would be applicable for enforcement of a non-contested monetary judgment). The CJEU also found that a claimant can claim all interest accrued up to the date of payment of the claim. The EEO Regulation and the European Small Claims and EOP Procedures lay down subject-matter and tribunal exceptions, which are similar but with slight differences from those found in the Regulation. The three procedures apply among all member states with the exception of Denmark.
The European Union has signed and ratified the Hague Convention on Choice of Court Agreements 2005 (Hague Convention 2005) on behalf of all EU member states (including Denmark, from 1 September 2018). In preparation for a ‘No Deal’ Brexit scenario (see question 29), the United Kingdom deposited an instrument of accession to the Hague Convention 2005, but this accession is suspended until 1 November 2019. The Hague Convention 2005 came into force between the European Union and Mexico on 1 October 2015 and between the European Union and Singapore on 1 October 2016. The Hague Convention 2005 has also been signed but not yet ratified by China, Montenegro, Ukraine and the United States. It has been implemented into UK law by an amendment to the Civil Jurisdiction and Judgments Act 1982 (CJJA 1982). The Hague Convention 2005 is likely to become more significant in light of the United Kingdom’s impending exit from the EU (see question 29).
The Hague Convention 2005 applies to judgments on the merits in civil and commercial matters where there is an exclusive choice of court agreement in place (unless one party is a natural person who is acting for primarily personal, family or household purposes). Such an agreement must be in writing or otherwise in a manner that renders it accessible for subsequent reference.
The Hague Convention 2005 specifically excludes a number of matters, namely: the status and legal capacity of natural persons; maintenance obligations; family law matters; wills and succession; insolvency; composition and analogous proceedings; the carriage of passengers and goods; certain maritime and shipping matters; competition matters; liability for nuclear damage; claims for personal injury brought by or on behalf of natural persons, tort or delict claims for damage to tangible property not arising from a contractual relationship; rights in rem and tenancies of immovable property; validity or nullity or dissolution of legal persons and the validity of decisions of their organs; validity of intellectual property rights other than copyright or related rights; infringement of intellectual property rights other than copyright and related rights, unless proceedings could also be brought for breach of contract; and the validity of entries in public registers. The European Union has also made a declaration under the Hague Convention 2005 that it will not apply to contracts of insurance other than reinsurance contracts: certain large risks arising connected with shipping, aircraft, railway rolling stock or goods used for commercial purposes; policy holders carrying on businesses over a certain size; or contracts of insurance between parties domiciled in the same contracting state and conferring jurisdiction on that state, where the harmful event occurred abroad. This reflects the special provisions in relation to insurance, which are set out in articles 15 and 16 of the Recast Regulation.
Under the CJJA 1982, there is a simple procedure for the recognition of judgments arising from Hague Convention 2005 states. Judgments will be registered for enforcement if they are enforceable or effective in their country of origin. The party against which judgment is sought is not entitled to make submissions on an application for registration of a Hague Convention 2005 judgment and once registered, such a judgment becomes enforceable as if it were a UK judgment. However, appeals can be made against a decision to register a judgment on the following grounds:
- the judgment is not effective or enforceable in its state of origin;
- the relevant choice of court agreement was null and void;
- a party lacked capacity under the relevant law to enter into the choice of court agreement;
- proceedings were not notified to the defendant in a manner that would allow it to organise its defence (unless the defendant appeared and put its case in the original court and did not raise this);
- the proceedings were notified to the defendant in the United Kingdom in breach of fundamental principles of service in the United Kingdom;
- the judgment was obtained by procedural fraud;
- enforcement would be manifestly incompatible with public policy in the United Kingdom (including if it is incompatible with basic principles of procedural fairness); or
- the judgment is incompatible either with an earlier judgment given in the United Kingdom between the same parties or with an earlier judgment given in another Hague Convention state between the same parties and in the same cause of action.
The United Kingdom is party to a range of subject-matter treaties and conventions that provide for recognition and enforcement of specific types of judgments or awards. These are incorporated into law in the United Kingdom by legislation, and the provisions relating to recognition are generally modelled on the Foreign Judgments (Reciprocal Enforcement) Act 1933 (FJA 1933) (see question 3). Examples include the Carriage of Goods by Road Act 1965, the Merchant Shipping Act 1995 and the Civil Aviation Act 1982.
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