Enforcement of foreign judgments in the aftermath of Brexit
There is no denying that Brexit has impacted the United Kingdom (UK) in a number of ways, and how particularly it has impacted the legal industry.
From issues regarding citizenship, EU sovereignty and trade more generally, there has also been an impact regarding foreign judgments, and the enforcement of them. This article will summarise the enforcement options available to a party in whose favour a judgment was made in another country. It should be noted however, that typically these enforcement options are only for monetary awards.
Administration of Justice Act 1920
This Act will be the best option for judgment creditors from most Commonwealth countries, British overseas territories, Cyprus or Malta. The judgment creditor can apply to register the judgment in the UK in the High Court of England at any time within 12 months of the judgment being entered into in the foreign jurisdiction. There are caveats at s.9(2) of the Act regarding when a judgment will not be registered, but the decision to be registered is a matter for the judge to decide. As this is primary legislation, if the judgment creditor has this option it would be the most preferable out of the others here.
This is another source of law that governs enforcing a judgment in the United Kingdom. If the UK has made a treaty with another country regarding recognition of judgments, then this will allow a judgment to be enforced. The treaty wording depends on how the judgment creditor would go about this, but typically they would have to register their judgment in the UK within 12 months of it being entered into.
The Hague Convention
The 2005 Hague Convention on Choice of Court Agreements is an international treaty under which the member states to it recognise and enforce judgments in terms of a contract’s jurisdiction clause. This means that parties are free to choose where their case (if any) is heard and judged. The UK is now a member of the Hague Convention, separate from their prior membership to it only through the EU.
To enforce a judgment under this convention, it must be registered in the UK ‘without delay’. There are various grounds for refusal under Article 9, but the key test as to whether it is registrable is from Article 8(3) which requires the foreign judgment must have been enforceable in the jurisdiction that it was awarded in, at the time it was awarded. The application for the judgment to be registered comes from Part 74 of the Civil Procedure Rules.
Cases which do not fall under the Hague Convention, a bilateral treaty or any other English statute will be governed by the common law. In order for the English courts to have the power to enforce a foreign judgment, the judgement must be for a definite sum, be final and not have been issued in respect of taxes, penalties or multiple damages awards. The definition of ‘final’ in this context was explored in the case of Aeroflot-Russian Airlines v Berezovsky  EWCA Civ 20 as being one that precludes the other party from bringing fresh proceedings in their foreign jurisdiction.
What happens next?
Once the judgment is registered in the English courts, the judgment creditor will be able to enforce it in the same way as if it had been entered into in the courts of England and Wales in the first place. This gives a variety of options for the creditor, which, should you need an assistance with executing, one of our team would be happy to help with.
Darcy Still, Trainee, July 2022