England & Wales: Enforcement of Judgments in Civil and Commercial Matters

The principal conventions and treaties which apply to the enforcement of foreign judgments in England and Wales, and the circumstances in which they apply, are as follows:

• Hague Convention on Choice of Court Agreements 2005 (the “Hague Convention 2005”)

The Hague Convention 2005 is in force between the United Kingdom of Great Britain and Northern Ireland (UK), Gibraltar, all EU Member States, Denmark, Mexico, Singapore, and Montenegro. It permits the registration and enforcement of judgments from courts of contracting states. It only applies where the jurisdiction of the foreign court was based upon an exclusive choice of court agreement in its favour entered into on or after 1 October 2015. Where the Hague Convention 2005 applies, the registration regime is mandatory and the judgment cannot be enforced at common law.

• The Administration of Justice Act 1920 (the “AJA 1920”)

The AJA 1920 permits registration and enforcement of judgments for a specified amount of money obtained in certain commonwealth states and British overseas territories[1] without a review of the merits. Alternatively, a judgment falling within the scope of the AJA 1920 can also be enforced at common law subject to the applicable common law rules (although in practice this is rare and the costs of such proceedings are unlikely to be recoverable).

• The Foreign Judgments (Reciprocal Enforcement) Act 1933 (the “FJA 1933”)

The FJA 1933 permits registration and enforcement of final judgments for a specified amount of money obtained in courts of countries with whom the UK has a reciprocal enforcement treaty^[2] without a review of the merits. Where the FJA 1933 applies, the registration regime is mandatory and the judgment cannot be enforced at common law.

• The Civil Jurisdiction and Judgments Act 1982 (the “CJJA”)

Final judgments for a specified amount of money obtained in the courts of Scotland or Northern Ireland can be registered under the CJJA and enforced by the English courts without a review of the merits. The enforcement of Northern Irish and Scottish judgments in England is not considered any further in this guide.

• Council Regulation (EU) 1215/2012 (the “Recast Brussels Regulation”)

Final judgments given by the courts of an EU Member State in proceedings commenced in accordance with the Recast Brussels Regulation prior to 31 December 2020 will be recognised and enforced by the English courts pursuant, in substance, to the provisions of the Recast Brussels Regulation.

• Lugano Convention 2007 (the “Lugano Convention”)

Final judgments given by the courts of Iceland, Norway or Switzerland in proceedings commenced in accordance with the Lugano Convention 2007 prior to 31 December 2020 will be recognised and enforced by the English courts pursuant, in substance, to the provisions of the Lugano Convention 2007.

As the Recast Brussels Regulation and Lugano Convention only now apply to enforcement in this jurisdiction where proceedings were commenced prior to 31 December 2020, the focus in this guide is on the other regimes.

[1]Anguilla, Antigua and Barbuda, Bahamas, Barbados, Belize, Bermuda, Botswana, British Indian Ocean Territory, British Virgin Islands, Cayman Island, Christmas Island, Cocos (Keeling) Islands, Republic of Cyprus, Dominica, Falkland Islands, Fiji, The Gambia, Ghana, Grenada, Guyana, Hong Kong, Jamaica, Kenya, Kiribati, Lesotho, Malawi, Malaysia, Malta, Mauritius, Montserrat, Newfoundland, New Zealand, Nigeria, Territory of Norfolk Island, Papua New Guinea, St Christopher and Nevis, St Helena, St Lucia, St Vincent and the Grenadines, Saskatchewan, Seychelles, Sierra Leone, Singapore, Solomon Islands, Sovereign Base Areas of Akrotiri and Dhekalia in Cyprus, Sri Lanka, Eswatini (formerly Swaziland), Tanzania, Trinidad and Tobago, Turks and Caicos Islands, Tuvalu, Uganda, Zambia and Zimbabwe.

[2] Bilateral treaties apply between Israel, Norway, Suriname, Australia, most Canadian provinces excluding Quebec, Guernsey, India, Jersey, Isle of Man, Pakistan and Tonga. In addition, there are existing bilateral treaties between the UK and the following EU Member States: Austria, Belgium, France, Federal Republic of Germany and West Berlin (now forming part of the German Federal Republic), Italy and The Netherlands. However, it is unclear whether the treaties with EU Member States, which were superseded by the EU regime, have now been revived following Brexit and whether or not judgments falling within their scope (but outside the scope of the Hague Convention 2005) could be (or indeed would have to be) registered under the FJA 1933.

In relation to the Hague Convention 2005, the UK has declared that it will not apply to insurance contracts save in the limited circumstances set out in paragraph 1 of its declaration dated 28 September 2020. The UK has also set out in a Note Verbale that, despite its initial accession as part of the EU and subsequent accession as an independent state, it considers that the Hague Convention 2005 entered into force for the UK on 1 October 2015 and that the UK has been a contracting state without interruption since that date.

Yes. In the absence of any applicable UK statute, convention, bilateral treaty or other arrangement, the English courts will recognise any final judgment for a specified sum of money obtained in the courts of another jurisdiction subject to and in accordance with the common law rules applicable to the recognition and enforcement of foreign judgments. The English courts will generally recognise the foreign judgment as creating a debt due and give judgment on that debt, subject to certain exceptions.

The criteria differ depending on the relevant regime for registration and / or enforcement.  To be enforced under the FJA 1933 or the common law, the judgment must be final[1]  and conclusive and under all three regimes it must be for a specified sum of money.  Further, in general foreign judgments will not be enforced under the AJA 1920, the FJA 1933 or the common law where the judgment:

1. is in respect of fines, taxes or penalties[2]; or
2. is for multiple damages.

Under the Hague Convention 2005, any judgment (monetary or otherwise) which is a final decision on the merits (and not interim relief) can be enforced, provided it is enforceable in the country in which it was given. The Hague Convention 2005 permits refusal of recognition or enforcement, however, for judgments awarding exemplary or punitive damages. Under the Recast Brussels Regulation and Lugano Convention, any judgment (including interim relief) can be enforced. However, as set out above, these only now apply where proceedings were instituted prior to 31 December 2020.

[1] “Final” means that the foreign court that pronounced it treats it as giving rise to res judicata; the fact that an appeal against the judgment is available to a higher court will not prevent the judgment from being final.

[2] A “penalty” here generally refers to a sum payable to a state, so would not include punitive damages payable to a private party (but see further question 16).

To enforce a judgment under any of the available statutory regimes outlined in question 1, an application must be made to the High Court to register the judgment, supported by written evidence (save for judgments enforceable under the Recast Brussels Regulation, which are automatically enforceable and do not require registration). There are specific requirements depending on the applicable regime.  The procedure is set out in the Civil Procedure Rules (CPR) 74.3 to 74.10.  The following documents must be included for any such application:

1. The judgment (or a verified, certified or otherwise authenticated copy of it).
2. A certified translation into English if the judgment is in another language.
3. Details of the parties and their addresses (and the judgment creditor must provide an address for service within the jurisdiction).
4. The grounds on which the judgment creditor is entitled to enforce the judgment.
5. In the case of a money judgment, the amount which remains unsatisfied; and where interest is recoverable on the judgment under the law of the state of origin –
   1. the amount of interest which has accrued up to the date of the application; or
   2. the rate of interest, the date from which it is recoverable and the date on which it ceases to accrue.

The judgment creditor applies without notice to register the judgment. Once it is registered it is served on the judgment debtor who can apply to have the registration set aside or appeal against it, if relevant grounds exist. If the formalities for registration are complied with, the judgment will normally be registered (although under the AJA 1920, registration is at the court’s discretion). It is then up to the judgment debtor to challenge the registration. If no (or no successful) challenge is made, the registered judgment can be enforced in the same way as any other judgment from the English court.

In addition to the principal documents listed above, there are specific requirements for different regimes. For example, under the Hague Convention 2005, the exclusive choice of court agreement is also required.

Where no registration regime applies, at common law a foreign judgment must be enforced by bringing a new claim, based on the judgment as evidence of a debt. Generally, (assuming there is no defence to the claim) the judgment creditor will be able to obtain summary judgment (a simplified procedure at a short hearing) instead of progressing to a full trial. If the judgment debtor is outside the jurisdiction, permission to serve the claim outside the jurisdiction may be required.

Where the foreign judgment is registered under an applicable regime, it must either be an original or a certified or otherwise authenticated copy. It must be translated into English, if not in English.

If the judgment can be registered under one of the applicable regimes, and no challenge is made to the registration, the registration can be swift (for example even within weeks). The speed with which the judgment can then be enforced depends on the type of enforcement method used. If the registration or enforcement is challenged, this can delay the process significantly. While registration and enforcement can normally be achieved within 12 months this is highly dependent on the facts of the specific case.

Yes, interim injunctive relief in the form of a freezing order can be obtained to prevent a debtor from dissipating assets, provided certain criteria are satisfied. The key criteria are:

• The judgment creditor has a good arguable case that it is entitled to the debt;
• The debtor has assets within the jurisdiction;
• There is a real risk of dissipation; and
• It is just and convenient to grant the injunction in the circumstances.

Different regimes have different limitation periods. Under the AJA 1920, an application for registration must be made within 12 months of the judgment (subject to the court’s discretion to extend this period). Under the FJA 1933, an application must be made within six years of the judgment date. Under the common law, a claim must be commenced within six years of the date on which the foreign judgment became enforceable. Under the Hague Convention 2005, there is no limitation period as such but the judgment must still be enforceable in its originating jurisdiction. Similarly, under the Recast Brussels Regulation and Lugano Convention the judgment must still be enforceable in the original jurisdiction.

The precise grounds for challenge vary depending on the enforcement regime, although many of the grounds are common to all or most of the regimes, e.g. that the judgment was obtained by fraud, that enforcement would be contrary to public policy, or that the judgment debtor was not given sufficient notice of the foreign proceedings in order to defend them. Enforcement can also be challenged if the judgment in question does not meet the basic criteria for enforcement set out at question 4 above. Further detail in respect of each of the regimes is set about below.

Under the common law regime, the key grounds of challenge are:

• The foreign court did not, as a matter of English conflicts of laws principles, have jurisdiction to give the judgment (see further question 13 below);
• The judgment was obtained by fraud (either by the party in whose favour the judgment was issued or on the part of the foreign court);
• Enforcement of the judgment would be contrary to public policy (e.g. because the foreign proceedings were in breach of an anti-suit injunction, or because the award is punitive or manifestly excessive); or
• The proceedings giving rise to the judgment were in breach of natural justice (e.g. because the judgment debtor was not given sufficient notice of the proceedings or an opportunity to defend).

Registration under the AJA 1920 must be set aside if:

• The foreign court acted without jurisdiction (see further question 13 below);
• The judgment debtor was not duly served with the foreign proceedings and did not appear;
• The judgment was obtained by fraud;
• An appeal is pending in the foreign court or the judgment debtor intends to appeal; or
• The foreign proceedings could not have been entertained by the English court for reasons of public policy.

Registration under the FJA 1933 must be set aside if:

• The foreign court had no jurisdiction (see further question 13 below)
• The judgment debtor did not receive sufficient notice to enable him to defend and did not appear;
• The judgment was obtained by fraud; or
• Enforcement of the judgment would be contrary to public policy.

Enforcement under the Hague Convention 2005 may be refused if:

• The agreement conferring jurisdiction on the foreign court is null and void under the law of the foreign court (or that a party lacked capacity to conclude the agreement as a matter of English law);
• The proceedings were not notified to the judgment debtor in sufficient time to allow the judgment debtor to defend the proceedings (providing the judgment debtor did not appear without contesting notification) or were served in a manner fundamentally incompatible with English principles concerning service;
• The judgment was obtained by fraud in connection with a matter of procedure;
• Enforcement would be manifestly incompatible with English public policy; or
• The judgment is inconsistent with an English judgment in a dispute between the same parties or with an earlier judgment of another jurisdiction between the same parties on the same cause of action (providing that judgment meets the criteria for recognition in England).

Enforcement under the Recast Brussels Regulation must be refused if:

• Enforcement of the judgment would be manifestly contrary to public policy;
• In the case of a default judgment, the judgment debtor was not served with the proceedings in sufficient time and in such a way as to enable the judgment debtor to defend the proceedings (unless the judgment debtor had an opportunity to challenge the judgment but did not do so);
• The judgment conflicts with an English judgment between the same parties;
• The judgment is inconsistent with an English judgment in a dispute between the same parties or with an earlier judgment of another jurisdiction between the same parties on the same cause of action (providing that judgment meets the criteria for recognition in England);
• The foreign court assumed jurisdiction in circumstances where this was in breach of the special rules relating to consumers, employees and insurance contracts (where the judgment debtor is the consumer, the employee or the beneficiary of the insurance contract); or
• The foreign court assumed jurisdiction in circumstances where the courts of another Member State had exclusive jurisdiction to determine the dispute by virtue of the nature of the dispute in question[1].

The grounds for challenge under the Lugano Convention broadly mirror those under the Recast Brussels Regulation.

[1] Article 24 of the Recast Brussels Regulation provides that certain disputes, by their nature, are suitable for determination only by the courts of a specific Member State. For example, proceedings which have as their object rights in rem in immovable property can only be heard in the courts of the Member State in which the property is situated.

Generally speaking, the English court will not review the substance (either issues of fact or law) of the judgment to be enforced. The Hague Convention 2005, the Recast Brussels Regulation and the Lugano Convention all contain express provisions to this effect. However, the English court may have to consider the substance of the decision to some degree if enforcement is challenged on the grounds that it was obtained by fraud, or is inconsistent with public policy, or is inconsistent with an existing judgment (where this is an applicable ground of challenge).

Under the common law, the AJA 1920 and the FJA 1933 the English court will consider whether the foreign court had jurisdiction over the judgment debtor as a matter of English conflicts of laws principles. It is irrelevant whether the foreign court had jurisdiction over the judgment debtor in accordance with its own rules.

There are some slight differences between the common law, the AJA 1920 and the FJA 1933 in this regard but, broadly speaking, the foreign court will be deemed to have had jurisdiction over the judgment debtor where:

• The judgment debtor was present in the foreign country at the time the proceedings were instituted (providing that the proceedings were not in breach of an exclusive jurisdiction clause in favour of the courts of a different country);
• The judgment debtor was claimant or counterclaimant in the foreign proceedings;
• The judgment debtor submitted to the jurisdiction of the foreign court by voluntarily appearing in the foreign proceedings (save where such appearance was solely to contest jurisdiction); or
• The judgment debtor had, prior to the commencement of the foreign proceedings, agreed to submit to the courts of the foreign country.

The Hague Convention 2005 only applies where the foreign court has jurisdiction in accordance with a qualifying[1] exclusive jurisdiction clause. The English court therefore needs to be satisfied that the foreign court did have jurisdiction in accordance with such a clause, but the validity of the clause is determined in accordance with the law of the foreign court.

Under the Recast Brussels Regulation and the Lugano Convention, the English court will not enforce a judgment where the court of the Member State of origin did not have jurisdiction in accordance with the special rules relating to consumers, employees, and insurance or where another court had exclusive jurisdiction to determine the issue (see question 11 above).

[1] It is unclear whether an asymmetric jurisdiction clause would qualify but the better view appears to be that it would not.

There are no specific requirements as to the manner in which a defendant should be served with proceedings but, as set out at question 11 above, a judgment will generally not be enforced in England if the judgment debtor was not properly notified of the proceedings and therefore unable to defend them. This is the case regardless of which regime applies (although there are some slight differences between the requirements of each of the regimes).

Default judgments can be enforced, providing they comply with all the other requirements set out in this guide.

The AJA 1920 expressly provides that registration is at the court’s discretion; the judgment will only be registered if the English court considers it just and convenient that the judgment should be enforced here.

Where there is an appeal pending against the judgment in the foreign court, under the common law, the FJA 1933, the Recast Brussels Regulation, the Lugano Convention and the Hague Convention 2005, the English court has a discretion whether or not to permit registration/enforcement (as the case may be). Under the AJA 1920, the English court must refuse registration where an appeal is intimated or pending.

Aside from the above scenarios, however, the English court does not generally have a discretion whether or not to recognise a foreign judgment, providing that it meets the criteria for recognition as set out in this guide.

At common law and under the AJA 1920 and the FJA 1933 judgments in respect of fines, taxes or penalties are not enforceable. The question of whether a judgment for punitive damages is “penal” for these purposes is not fully settled. However, it is quite likely that manifestly excessive damages that do not merely compensate a party for its loss will be considered contrary to English public policy. The Hague Convention 2005 expressly provides that “[r]ecognition or enforcement of a judgment may be refused if, and to the extent that, the judgment awards damages, including exemplary or punitive damages, that do not compensate a party for actual loss or harm suffered”.

The Protection of Trading Interests Act 1980 provides that no judgment may be recognised or enforced under the AJA 1920, the FJA 1933 or at common law where such judgment is for multiple damages. A judgment for multiple damages is defined as “a judgment for 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”. Such awards commonly arise in US anti-trust litigation.

Generally, the English courts have a discretion not to recognise or enforce a foreign judgment where an appeal is pending in the foreign jurisdiction. Different rules apply to different regimes. Under the AJA 1920, the English courts will not recognise or enforce a judgment if the judgment debtor proves that an appeal is pending or that they are entitled to (and intend to) make an appeal. Under the FJA 1933, the English courts have a discretion whether or not to register or enforce under the same circumstances. Under the Recast Brussels Regulation, the English court has a discretion to suspend enforcement proceedings if the judgment is challenged in the Member State of origin. At common law, the English court also has a discretion to stay proceedings if an appeal is pending. Under the Hague Convention 2005, recognition or enforcement can be postponed or refused if the foreign judgment is subject to review in the foreign jurisdiction or if the time limit for such a review has not expired.

Yes, the decision to permit registration or enforcement (or to refuse it) can be challenged on the grounds set out above. That decision can also be appealed to a higher court. At common law, summary judgment permitting (or refusing) enforcement of the foreign judgment can also be appealed.

Yes, interest can be claimed. Where an application is made to register the judgment and interest is recoverable under the law of the foreign jurisdiction, the application should set out the rate of interest, the date from which it is recoverable and the date upon which it ceases to accrue. At common law, interest can also be claimed and the basis upon which it is claimed (and calculated) should be set out in the claim.

Where a judgment is registered under a relevant regime, the order for registration of the judgment will give the debt owing in the foreign currency.  Where a claim is brought to enforce a judgment at common law, the order will normally provide that the debt is expressed in the foreign currency or the Sterling equivalent at the time of payment. Generally, when the creditor enforces the judgment, it will need to convert the amount owing into sterling.

Yes, the costs of registration can be assessed and added to the amount of the foreign judgment in the registration order. The costs of enforcement itself can also generally be recovered. The basis upon which they are recovered depends on the method of enforcement used. At common law, the legal costs of a successful claim to enforce the foreign judgment (as well as the costs of enforcement itself) will generally be ordered to be paid by the losing party to the winning party typically at a rate of around 65-70% of the total legal costs incurred.

Yes, third parties can fund enforcement action, provided that they comply with the relevant rules and there is no impropriety in the funding arrangement. If a judgment creditor loses any aspect of its claim or application in relation to enforcement, it may be ordered to pay the judgment debtor’s costs. A third party funder standing behind the judgment creditor could also be ordered to pay some or all of these costs. Third party funders tend to be extremely conscious of this risk and there is usually an indemnity in the funding agreement requiring reimbursement to the funder should this arise. A party may also be able to purchase adverse costs insurance to cover the risk of being ordered to pay the other side’s legal costs.

Since the UK left the EU, it has been unclear what, if any, regime would replace the Recast Brussels Regulation and the Lugano Convention. Now that the EU has indicated it intends to ratify the Hague Judgments Convention 2019, we anticipate the UK may also ratify. If it does, this would create a simpler process for enforcement of judgments from other EU countries and, if more countries ratify, around the globe. In the UK, there has also been growth in the market for third party funding in enforcement action and we consider this is likely to further expand the scope and reach of enforcement actions.

Yes, the UK considers it has been a continuously contracting state since October 2015.

The UK has not yet ratified the Hague Judgments Convention 2019. However, now that the EU has indicated that it intends to ratify, we anticipate it may also ratify.