Today we would like to change things up and introduce you to another area of law, enforcing a foreign judgment in the UK.
We understand that some of you may not be from the UK and would like to know whether you can enforce a judgment that you have obtained outside of the UK.
The truth is, it depends! Let’s take a look at the scenarios in which you can enforce a foreign judgement in the UK.
Hague Convention
You are able to rely on the Hague Convention if the judgment obtained is from a participating state. In short, a judgment of any sort given by participating state are enforceable in all other participating states. The common parties to this convention include the EU, Mexico, Montenegro, Denmark, UK and Singapore. Hence, if a judgment is obtained in an EU court, it will be enforceable in England under the Convention.
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.
Administration of Justice Act 1920
The above acts allow for the registration and enforcement of money claim given in most of the Commonwealth countries, namely Cayman Islands, Cyprus, New Zealand, Nigeria, Malta and Zimbabwe. However, registration is discretionary.
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.
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.
It covers Australia, Canada (except Nunavut and Quebec), Guernsey, India, the Isle of Man, Israel, Jersey and Pakistan. It also covers judgments from some EU countries i.e. Austria, Belgium, France, Germany, Italy and the Netherlands.
Common law
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.
This applies where no applicable treaty applies to the countries that enforcement is being sought. A great example would be China, Russia, Brazil and United States. As such, at common law, such foreign judgment is not directly enforceable but rather it creates a debt between parties.
Generally, any judgment obtained must be final and conclusive and have merits. An application for debt must be made by the creditor in the UK and usually, a summary judgment can then be entered.
Restrictions
There are restrictions to the above, notably if the judgment was obtained by fraud. In addition, judgment for multiple damages cannot be enforced.
How can a foreign judgement be enforced?
Once you have a foreign judgment registered here in the UK, it can be enforced in the same way as an English judgment.
There are a number of ways that this can be done:
- obtaining a writ of control to allow an enforcement officer to take control of and sell the debtor’s goods;
- applying for a charging order to grant the creditor a charge over land, securities or certain other property owned by the debtor;
- applying for a third-party debt order compelling a third party (eg, a bank holding funds for the debtor) to pay the amounts due to the creditor; and
- applying for an attachment of earnings order requiring a debtor’s employer to deduct money from the debtor’s wages and pay it directly to the creditor.
- Bankruptcy petition (against an individual).
- Winding up petition (against a company).
We would advise that you check whether a debtor is able to pay prior to making the above application:
- Applying for an order that the judgment debtor provides information about his financial affairs.
- By carrying out enquiries using an enquiry agent.
- Checking the insolvency register for details of bankruptcy proceedings.
- Checking information held at Companies House about companies or company directors.
- Undertaking searches at HM Land Registry to find out whether the judgment debtor owns property.
As a reminder, there are different rules for the recognition and enforcement of foreign judgments. The principles may be the same but there are substantive and procedural differences between the rules we have mentioned in our previous video.
It is also important to identify which country you are applying from and the relevant procedure for recognition and enforcement.
Contact us if you have any further questions about this topic.
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