England and Wales

1. Is there an exequatur procedure?

Under the Recast Brussels Regulation (Council Regulation (EU) 1215/2012) ("Recast Regulation"), EU judgments obtained in proceedings commenced on or after 10 January 2015 are automatically recognised in the United Kingdom. For other foreign judgments, an application for registration of the judgment in England must be made. Once a foreign judgment has been registered, it can be enforced as if it were a judgment of England and Wales.

2. What are the applicable statutes?

2.1 Recognition in general civil matters

2.1.1  Judgments from Scotland or Northern Ireland

The procedure for enforcing judgments from Scotland or Northern Ireland in England and Wales is set out in the Civil Procedure Rules (“CPR”) 74.14 to 74.18 and sections 18, 19 and Schedules 6 and 7 to the Civil Jurisdiction and Judgments Act 1982 (“CJJA 1982”) (as amended by the Civil Jurisdiction and Judgments (Amendment) Regulations 2014 (SI 2014/2947)). Those judgments must be registered in England in order to be enforceable. Registration in the United Kingdom is the equivalent of a declaration of enforceability (i.e. recognition) and is a straightforward process. The judgment creditor must first apply to the court where the judgment was given for a certificate to enable judgment to be enforced in another part of the United Kingdom (in the manner prescribed by the original court). The judgment creditor then applies to the High Court (within six months of the date of issue of the certificate) for the registration of the judgment, accompanying the application with a certified copy of the original judgment and the certificate. 

2.1.2  Judgments from other EU and EFTA countries

Depending on the jurisdiction of the judgment and the date on which the underlying claim was commenced, the rules that govern the recognition and enforcement of EU and EFTA judgments are contained in:

  • the Recast Regulation (judgments of EU Member States in proceedings commenced on or after 10 January 2015);
  • the Brussels I Regulation (Council Regulation (EC) 44/2001) (Brussels I Regulation”) (judgments of EU Member States in proceedings commenced prior to 10 January 2015);
  • the 1968 Brussels Convention (“Brussels Convention”) (judgments from Gibraltar or certain dependent territories of EU Member States);
  • the 2005 Hague Convention on Choice of Court Agreements (“Hague Convention”) (judgments from Mexico, Singapore or Montenegro); and
  • the 2007 Lugano Convention (“Lugano Convention”) (judgments of Iceland, Norway and Switzerland).

With the exception of judgments under the Recast Regulation, all judgments must be registered prior to enforcement. The procedure for registration is set out in CPR 74.3 to 74.10. 

An application for the registration of a foreign judgment under the Brussels I Regulation, the Lugano Convention or the Hague Convention must be made to the High Court and be supported by written evidence (an authenticated copy of the judgment and a certificate from the court of origin giving details of the judgment.) 1 Most of the elements of the enforcement procedure for the Brussels I Regulation and the Lugano Convention will apply to enforcement under the Brussels Convention. As the latter is relatively rare, it is not covered specifically here.  In addition, the application must state whether interest is recoverable on the judgment under the law of the state of origin and, where the judgment is not in English, it must be supported by a translation either certified by a notary public or other qualified person, or accompanied by written evidence confirming that the translation is accurate.

There are also other specific European instruments:

  • Council Regulation (EC) 805/2004 creating a European Enforcement Order for uncontested claims;
  • Council Regulation (EC) 1896/2006 creating a European order for payment procedure; and
  • Council Regulation (EC) 861/2007 establishing a European Small Claims Procedure, (the “Regulations”).

CPR 74.27 to 74.33 and CPR 78 contain the rules applicable to the enforcement of judgments following proceedings under the Regulations, which mirror the rules in the Regulations themselves. The judgments made under the Regulations are enforceable automatically, without the need for registration.

Regulations themselves. The judgments made under the Regulations are enforceable automatically, without the need for registration.

Brexit

In June 2016, the UK voted by public referendum to leave the EU. A withdrawal agreement (the “Withdrawal Agreement”) setting out the terms of the UK’s withdrawal was approved by the UK Parliament by enacting the European Union (Withdrawal Agreement) Act 2020, which received Royal Assent on 23 January 2020. The Withdrawal Agreement was signed by the UK and EU on 24 January 2020, and provides the UK with a transitional period from 31 January 2020 (on which day the UK officially left the EU) until at least 31 December 2020, during which the UK is effectively treated as if it were an EU Member State. There is a possibility of a one-off extension to the 31 December 2020 deadline, provided that the UK requests such extension prior to 1 July 2020.

During the transitional period:

  1. the enforcement of EU and EFTA court judgments in the UK (and vice versa) will not change, as the Withdrawal Agreement means that most EU law, including the Recast Regulation and Lugano Convention, continues to apply. In addition, Article 67 of the Withdrawal Agreement provides that the Recast Regulation will apply to legal proceedings which have been instituted prior to the end of the transitional period, as well as to the recognition and enforcement of judgments arising out of such proceedings; and
  2. the rules applicable to EU judgments that are based on an exclusive choice of an EU jurisdiction to which the Hague Convention applies, will also continue to apply to the UK as it is bound by the Hague Convention during the transitional period. The UK has notified its intention to participate in the Hague Convention in its own right following the end of the transitional period.

Following the transitional period:

  1. in the context of the Recast Regulation, if no partnership agreement between the EU and UK is agreed, there will be no substantive change to the enforcement of UK judgments by EU courts and vice versa where there is an exclusive choice of jurisdiction (of either the UK or an EU Member State), as the EU/UK courts will continue such enforcement under the Hague Convention (albeit such judgments will need to be registered in order to be enforceable), once the UK accedes to the Hague Convention in its own right following the transitional period. However, some EU courts may cease to enforce UK judgments where there is not an exclusive choice of UK jurisdiction concerned. Where there is no exclusive EU jurisdiction concerned, EU court judgments may be enforced in the UK by a common law action on the judgment or under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (“FJA 1933”). However, as the UK intends to re-accede to the Lugano Convention, this distinction in relation to the enforcement of EU/UK court judgments where a choice of jurisdiction is concerned may be irrelevant. It is, however, noted that all current parties to the Lugano Convention, including the EU, must agree to the UK’s accession to the Lugano Convention before it can become a party to the same; and
  2. in the context of the Lugano Convention, if no partnership agreement between the EU and UK is agreed which includes provisions similar to that of the Lugano Convention, some EFTA courts may cease to enforce UK judgments. The UK government may also consider repealing the provisions of the Civil Jurisdiction and Judgments Act 1991, which incorporated the Lugano Convention into domestic law. EFTA judgments would then have to be enforced by a common law action on the judgment or, in the case of Norway, by registration under the FJA 1933. Nevertheless, it is again noted that the UK intends to re-accede to the Lugano Convention, albeit this is subject to the consent of all current parties to the Lugano Convention.

As it is yet to be determined whether a partnership agreement will be concluded with the EU following the end of the transitional period (whether on 31 December 2020 or, if an extension is requested, later), the position regarding enforcement post-Brexit is still unsettled.

2.1.3 Judgments from Commonwealth countries

Depending on the jurisdiction, the rules that govern the recognition and enforcement of judgments from Commonwealth countries are contained in the Administration of Justice Act 1920 (“AJA 1920”) or in the FJA 1933. The judgments must be registered in England in order to be enforceable.

2.1.4 Judgments from Hague Convention countries

The Hague Convention currently applies to the EU Member States, Mexico, Singapore, and Montenegro. It was implemented into English law by an amendment to the CJJA 1982 and applies to judgments in civil and commercial matters where there is an exclusive choice of court agreement in place. Although the UK made a declaration on 12 April 2019 that it will re-accede to the Hague Convention, its accession has been postponed during the transitional period given that the Hague Convention continues to apply to the UK during this period as a result of the terms of the Withdrawal Agreement. Judgments within the scope of the Hague Convention must be registered in England in order to be enforceable.

2.1.5 Judgments from other countries: common law regime

The common law rules govern the enforcement of judgments from countries not covered by the aforementioned regimes (e.g. Brazil, Russia or the United States). This regime is based on common law precedent (i.e. case law) and is not codified in a statute. As such, its application is not absolute and must be approached on a case-by-case basis.

The common law regime allows for enforcement of monetary judgments only (i.e. other forms of judgments – such as injunctions and provisional measures, declaratory judgments, default judgments and ex parte awards – are not enforceable under the common law). The judgments must be on the merits and be final and conclusive in their jurisdiction of origin. If the only way to contest the judgment in the original jurisdiction would be to appeal it to a higher court, the judgment will be considered final and conclusive.

Additionally, a foreign judgment will only be enforceable if the English courts are satisfied that the foreign court had jurisdiction according to the rules that English law applies in such cases. Therefore, a foreign judgment will only be enforceable in England where the defendant:

  • was present in the foreign country at the time the claim was served; or
  • had submitted to the foreign country’s jurisdiction.

Under the common law regime, there is no recognition of a foreign judgment as such. A claimant must issue fresh proceedings in England and Wales and attach the foreign judgment as evidence of the claim. The claimant should then apply for summary judgment of the claim (on the basis of the foreign judgment) and, if successful, will then be able to enforce the claim. Summary judgment is a special, expedited procedure whereby the English court can dispose of all the issues in a case without a trial on the basis that the defendant has no reasonable prospect of defending the claim. Summary judgment applications are normally dealt with without the need for oral evidence.

A defendant might challenge an application for summary judgment on the grounds that it has a real prospect of successfully defending the claim at trial because of the existence of any of the limited grounds of defence. As this regime is based on common law, there is not a closed list of defences, however, the main ones are:

  • The judgment is a non-monetary judgment, is not on the merits, or is not final and conclusive in the jurisdiction of origin.
  • The foreign court did not have jurisdiction according to the English rules.
  • The proceedings were brought contrary to a jurisdiction or arbitration agreement.
  • The judgment was obtained by fraud (Gelley and others v Shepherd and another [2013] EWCA Civ 1172).
  • Incompatibility with public policy (Joint Stock Company ‘Aeroflot-Russian Airlines’ v Berezovsky [2014] EWCA Civ 20).
  • Inconsistency with a prior judgment on the same subject matter and between the same parties.
  • Denial of natural justice (due process, opportunity to be heard).
  • The judgment is for multiple damages (an amount arrived at by doubling, trebling or otherwise multiplying a sum assessed as compensation for the loss or damage sustained by the person in whose favour the judgment is given).

2.2 Enforcement in general civil matters

Once a foreign judgment has been registered in England (if it needs to be registered under the applicable regime), it can be enforced in the same way as an English judgment. CPR 70 to 73 contain the general rules about enforcement of judgments and orders in general civil matters.

2.3 Special civil matters

Special rules apply for certain civil law matters. For example, CPR 75, 81 and 83 respectively contain special provisions for enforcement in relation to (i) traffic matters; (ii) orders or undertakings to do or abstain from doing an act; and (iii) writs and warrants.

Additionally, Parts 32, 33 and 34 of the Family Procedure Rules (“FPR”) govern the enforcement of maintenance orders, custody orders and orders made in family proceedings. Part 38 of the FPR governs the recognition and enforcement of protection measures between England and Wales and Member States of the EU other than the United Kingdom and Denmark.

2.4 Arbitral awards

The recognition and enforcement of foreign commercial and civil arbitral awards is governed by Part III of the English Arbitration Act 1996 (the “Arbitration Act”), in conjunction with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”).

Certain limited countries that are not party to the New York Convention are party to the Geneva Convention on the Execution of Foreign Arbitral Awards 1927. Awards made in those countries may be enforced pursuant to section 66 of the Arbitration Act.

3. What are the important judicial precedents?

Most matters relating to the registration and enforcement of judgments are regulated by legislation, however there are some important court decisions, often concerning the interpretation of such statues. 

In relation to the common law regime, some important precedents are:

  • Joint Stock Company ‘Aeroflot-Russian Airlines’ v Berezovsky [2014] EWCA Civ 20 (conditions to be satisfied for a foreign judgment to be recognised, question of finality of judgment to be determined on the basis of expert evidence of foreign law).
  • Rubin v Eurofinance [2012] UKSC 46 (jurisdiction of the original court).
  • Midtown Acquisitions LP v Essar Global Fund Ltd [2017] EWHC 519 (Comm) (finality and conclusiveness of the judgment).
  • JSC VTB Bank v Skurikhin and others [2014] EWHC 271 (Comm) (judgment must be for a sum of money, but not for taxes, fines or penalties, defences to enforcement).
  • The Sennar No 2 [1985] 1 WLR 490 (definition of a judgment “on the merits”, issue estoppel)
  • Adams v Cape Industries plc [1990] Ch 433 (jurisdiction of the original court).
  • Henderson v Henderson (1843) 3 Hare 10 (public policy, abuse of process).
  • Saleh v Director of the Serious Fraud Office [2017] EWCA Civ 18 (judgments in rem and in personam).

4. Does the exequatur procedure mean that the case must be retried on the merits?

No. The English courts will not revisit the factual or legal findings in the original judgment. However, under the AJA 1920 the courts retain a certain discretion when deciding an application to register a judgment. The courts will only order the judgment to be registered if in all the circumstances of the case they think it just and convenient that the judgment should be enforced in the United Kingdom.

5. How long does the exequatur procedure take?

The timeframe for the proceedings to obtain recognition of a judgment depends on the particular regime. If there is a treaty in place under one of the above-mentioned regimes and the judgment is registrable and enforceable in the English court, it can take between one to four weeks. However, if there is no treaty and proceedings have to be commenced under the common law rules, in the most straightforward of cases it can take three to six months to obtain a summary judgment – more complex cases habitually take longer.

6. Is the opponent given the opportunity to challenge the exequatur?

Yes, although cases cannot be retried on their merits, defendants can oppose, appeal or apply to set aside the registration of a foreign judgment on certain limited grounds depending on the applicable regime.

6.1 Judgments from Scotland or Northern Ireland

Registration can be set aside if, upon an application made by the defendant, the court is satisfied that: (i) the formalities of the registration procedure have not been complied with; or (ii) subject to the court’s discretion, the matter in dispute in the proceedings in which the judgment in question was given had previously been the subject of a judgment by another court or tribunal having jurisdiction in the matter.

6.2 Judgments from other EU and EFTA countries

Under the Recast Regulation, the Brussels I Regulation and the Lugano Convention, a defendant is entitled to defend against the enforcement. Defences under these instruments are broadly similar, and limited, as follows:

  • if recognition would be manifestly contrary to public policy in England;
  • in the case of judgments in default, if the defendant was not served with the claim form in sufficient time to prepare his defence;
  • irreconcilability with another judgment;
  • where the Recast Regulation applies, where the judgment conflicts with certain jurisdictional rules in the Recast Regulation; and
  • conflict with certain treaty obligations. 

6.3 Judgments from Commonwealth Countries

A defendant can apply to set aside registration under the AJA 1920, and the registration shall be set aside if the court is satisfied that:

  • the original court acted without jurisdiction; or
  • the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court; or
  • the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agree to submit to the jurisdiction of that court; or
  • the judgment was obtained by fraud; or
  • the judgment debtor satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment; or
  • the judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering court.

The defendant can also apply to set aside registration under the FJA 1933, and the registration shall be set aside if the court is satisfied that:

  • the judgment is not a judgment to which the FJA 1933 applies or was registered in contravention of the provisions of the FJA 1933; or
  • the courts of the country of the original court had no jurisdiction in the circumstances of the case; or
  • the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or
  • the judgment was obtained by fraud; or
  • the enforcement of the judgment would be contrary to public policy in the country of the registering court; or
  • the rights under the judgment are not vested in the person by whom the application for registration was made; or
  • the matter in dispute in the proceedings in the original court had prior to the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter.

6.4 Judgments from Hague Convention countries

A decision on the application for registration of a judgment required to be recognised and enforced under the Hague Convention may be appealed by either party. The court can refuse or revoke registration only if:

  • the judgment is ineffective or unenforceable in the state of origin; or
  • the judgment is the subject of review in the state of origin or the time limit for seeking ordinary review has not expired; or
  • one or more of the grounds specified in Article 9 of the Hague Convention apply.

6.5 Judgments from other countries: common law regime

In relation to the common law regime, there is no recognition or exequatur as such, however the defendant might challenge the application for summary judgment on certain limited grounds (see point 1.5 above).

Authors

Luke Pardey
Luke Pardey
Jessica Foley
Jessica Foley
Solicitor Advocate