Bringing a claim for enforcement
What is the limitation period for enforcement of a foreign judgment? When does it commence to run? In what circumstances would the enforcing court consider the statute of limitations of the foreign jurisdiction?
Different limitation periods apply depending on which set of rules for the recognition and enforcement of judgments apply.
Under the various EU instruments, there is generally no set limitation period, but the judgment must still be enforceable in the jurisdiction in which it was obtained. In the case of C-420/07 Apostolides v Orams  ECR I-03571,  2 WLR 324, the Court of Justice of the European Union confirmed that enforceability of a judgment in the EU member state of origin is a precondition for its enforcement in another EU member state.
Administration of Justice Act 1920
Section 9(1) of the Administration of Justice Act 1920 (AJA 1920) requires that an application to register the judgment must be made within 12 months of the date of the judgment. However, the court has the discretion to allow a longer period. For instance, in Ogelegbanwei v President of the Federal Republic of Nigeria  EWHC 8 (QB), proceedings brought to enforce a Nigerian judgment were incorrectly brought under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (FJA 1933), but the High Court permitted the claimants to amend their application to proceed under AJA 1920 even though the 12-month period had expired.
Hague Convention on Choice of Court Agreements 2005
Article 8(3) of the Hague Convention on Choice of Court Agreements 2005 (the Hague Convention 2005) requires that the foreign judgment must still be enforceable in the jurisdiction in which it was obtained. Section 4B of the Civil Jurisdiction and Judgments Act 1982 (the UK domestic implementing legislation) also provides that a judgment to which the Hague Convention 2005 applies must be registered ‘without delay’.
Foreign Judgments (Reciprocal Enforcement) Act 1933
Section 2(1) of FJA 1933 provides that an application should be made to register the judgment debt within six years of the foreign judgment or, where the judgment has been subject to appeal, from the date of the last judgment in the foreign proceedings.
Common law rules
Section 24(1) of the Limitation Act 1980 provides that an action to enforce a foreign judgment under the common law rules must be commenced within six years of the date on which the foreign judgment became enforceable.
Types of enforceable order
Which remedies ordered by a foreign court are enforceable in your jurisdiction?
Broadly speaking, foreign non-monetary judgments are only enforceable in the United Kingdom if they fall within the EU regime (in respect of proceedings instituted before the end of the transition period) or the Hague Convention 2005. Under the common law rules and other statutory schemes, only monetary judgments which are final and conclusive are enforceable.
The EU instruments provide for the enforcement of any judgment in a civil or commercial matter given by a court or tribunal of a contracting state, whatever it is called by the original court. For example, article 2(a) of Regulation (EU) No. 1215/2012 (Brussels I Regulation recast) provides for the enforcement of any decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court.
The Brussels I Regulation recast also extends to interim, provisional or protective relief (including injunctions) when ordered by a court that has jurisdiction under the EU instrument in question.
Administration of Justice Act 1920
The Administration of Justice Act 1920 (AJA 1920) covers any judgment or order in civil proceedings where a sum of money is awarded to a judgment creditor. It includes arbitration awards that are enforceable in the original jurisdiction. Under section 9(2)(e) of AJA 1920, a foreign judgment will not be recognised or enforced in England if the court is satisfied that an appeal is pending or that the judgment debtor is entitled to and intends to appeal.
Hague Convention 2005
The Hague Convention 2005 applies to final decisions on the merits, but not interim, provisional or protective relief (article 7). Under article 8(3) of the Hague Convention 2005, if a foreign judgment is enforceable in the country of origin, it may be enforced in England. However, article 8(3) of the Hague Convention 2005 permits an English court to postpone or refuse recognition if the foreign judgment is subject to appeal in the country of origin. Article 11(1) of the Hague Convention 2005 permits recognition and enforcement of a judgment to be refused if it awards exemplary or punitive damages that do not compensate a party for actual loss or harm suffered.
Foreign Judgments (Reciprocal Enforcement) Act 1933
The Foreign Judgments (Reciprocal Enforcement) Act 1933 (FJA 1933) covers judgments or orders made by a recognised court in civil proceedings or criminal proceedings for a sum of money in respect of compensation or damages to an injured party, as long as it is not in respect of a tax, fine or penalty. The judgment must also finally and conclusively determine the rights and liabilities of the parties (although, per section 5(1) of FJA 1933, it is no bar to enforcement that an appeal is pending). FJA 1933 also makes specific provision for the enforcement of arbitration awards.
Common law rules
At common law, the judgment must be final and conclusive between the parties and for a specific monetary sum. The Court of Appeal has held 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’ (see Joint Stock Company ‘Aeroflot-Russian Airlines’ v Berezovsky and Glushkov  EWCA Civ 20). However, the fact that the judgment is subject to appeal in the foreign jurisdiction does not necessarily prevent its enforcement in the United Kingdom. Injunctive relief or interim awards will not be recognised or enforced at common law.
Must cases seeking enforcement of foreign judgments be brought in a particular court?
Proceedings seeking recognition and enforcement of foreign judgments should be brought before the High Court in England and Wales, the Court of Session in Scotland or the High Court of Northern Ireland, depending on the jurisdiction in which the judgment is sought to be enforced.
Separation of recognition and enforcement
To what extent is the process for obtaining judicial recognition of a foreign judgment separate from the process for enforcement?
Outside of the specific regimes set out in the treaties to which the United Kingdom is a party, recognition and enforcement are separate processes in England and Wales. Generally speaking, a foreign judgment will have no direct operation and cannot be immediately enforced until it has been recognised. The party seeking to enforce a foreign judgment must therefore first apply to a court to have it recognised. Once the necessary procedural steps for recognition have been completed, the foreign judgment will be enforced as if it was an English judgment.
AJA 1920, FCA 1933 and Hague Convention 2005
For foreign judgments falling within the scope of AJA 1920, FJA 1933 or the Hague Convention 2005, a judgment creditor may apply for their judgment to be registered under the rules set out in Part 74 of the Civil Procedure Rules (CPR).
The process involves applying to a High Court master with the support of written evidence. The application should include, among other things, a verified or certified copy of the judgment and a certified translation (if necessary). Further details are set out in Part 74 of the CPR. The judgment debtor then has an opportunity to oppose registration on certain limited grounds. Assuming the judgment debtor does not successfully oppose registration, the judgment debtor can then take steps to enforce the judgment.
Similar rules apply to foreign judgments from EU member states in proceedings instituted before the end of the transition period. Part 74 of the CPR as it existed before the end of the transition period continues to apply to such judgments as a result of transitional and savings provisions found in Regulations 26 and 27 of the Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2019 (SI 2019/493) (as amended by the Civil, Criminal and Family Justice (Amendment) (EU Exit) Regulations 2020 (SI 2020/1493)).
Common law rules
For judgments that fall within the common law rules, the judgment creditor must commence a claim in the English courts under Part 7 of the CPR, to obtain an English judgment. It will usually be possible to apply for summary judgment under Part 24 of the CPR. An application for summary judgment must be supported by written evidence. Once the judgment creditor has obtained an English judgment in respect of the foreign judgment, that English judgment will be enforceable in England as any other English judgment.
Enforcement and pitfalls
Once a foreign judgment is recognised, what is the process for enforcing it in your jurisdiction?
A foreign judgment can be enforced in the United Kingdom by the courts in the same way as a domestic judgment, provided it has been recognised by the courts. There is no need for an award to be registered to be enforceable; however, under statute, the process of registration is a more direct way to enforce a foreign judgment. The effect of registering a foreign judgment is essentially to render it equivalent to a judgment of the UK courts. A judgment creditor can apply to the court for the imposition of one or more enforcement methods, including orders compelling the judgment debtor to provide information about its affairs, seizure of assets, the seizure of bank accounts or diversion of funds owed by third parties to the judgment debtor, attachment to wages or other earnings or charges over land and other assets including securities (see Cruz City 1 Mauritius Holdings v Unitech Ltd  EWHC 3704 (Comm) regarding a freezing order issued against a non-party outside the United Kingdom in aid of enforcement ordered by the English courts).
What are the most common pitfalls in seeking recognition or enforcement of a foreign judgment in your jurisdiction?
Fundamentally, it is important to identify the jurisdiction in which the original judgment was rendered. This will have a direct impact on which regime or application is used for enforcement of the award in the United Kingdom. Judgments in default axiomatically should be handled with particular care as they are prone to raise factual issues concerning the original court’s jurisdiction, proper service of proceedings on the judgment debtor or the time provided to the judgment debtor to mount a defence (see, eg, Reeve v Plummer  EWHC 4695 (QB), where registration of a Belgian judgment was set aside on a finding that the Belgian courts had yet to review the default judgment being challenged).
More generally, claimants should consider whether the foreign judgment being enforced in the United Kingdom would be likely to contradict public policy. If so, it will not be enforced. As such, it is advisable that where the factors relied on as being contrary to public policy in England were factors that the foreign court had already considered or that could have been raised by way of objection in the foreign jurisdiction then the foreign jurisdiction is likely the best place for these arguments to be determined.
Law stated date
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10 July 2020.
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