ENGLAND & WALES Law and Practice Contributed by: James Herring, Nathalie Allen and David Wigg, Addleshaw Goddard
The Common Law Judgments from states with which the UK has no trea - ty arrangements for enforcement – including the USA, China and Russia – will need to be enforced under the common law. This requires fresh proceedings to be issued in the courts, based on the foreign judgment. After obtaining a new judgment that is enforceable in England and Wales, it is then open to a judgment creditor to consider the domestic enforcement options discussed above. 3.2 Variations in Approach to Enforcement of Foreign Judgments For most judgments in proceedings commenced in EU states before the end of the Brexit TP, it will be eas - ier to enforce a judgment under the European Regime than under any other regime. There is no requirement for judicial oversight before domestic enforcement steps are taken: recognition of judgments under the European Regime is an administrative process under - taken by court staff. As we move further away from the end of the Brexit TP, this will apply to fewer and fewer judgments. Under the Hague Convention 2005, the Hague Judg - ments Convention 2019 and the statutory regimes, foreign judgments must first be registered (a judicial process) before they can be enforced. After registra - tion, however, a judgment is treated as though it were a judgment of the courts of England and Wales, so enforcement in England and Wales may then take place using domestic processes. Under the common law, a foreign judgment cannot be directly enforced. The party enforcing the judgment first needs to start new proceedings in England or Wales, suing on the foreign judgment as a debt (usu - ally applying for summary judgment on the new claim). A new judgment in the courts of England and Wales must be obtained before domestic enforcement steps can be considered. 3.3 Categories of Foreign Judgments Not Enforced The types of judgment that will be enforced are dif - ferent for each regime, but there are certain catego -
ries that will generally not be enforced, or for which enforcement will be more difficult. • Interim (provisional or protective) judgments will usually only be enforced if they fall under the European Regime. Within that regime, they will only be enforced if the defendant was given notice of the hearing at which the judgment was given or if the judgment containing the order is served on the defendant before enforcement (Article 2 (a) of the Recast Brussels Regulation). • Under the European Regime, judgments given in default will not be enforced. The exception to this is if the defendant had the opportunity to bring proceedings to challenge the judgment when they heard about it but did not do so (Article 45 (1)(b) of the Recast Brussels Regulation). • Under the Hague Convention 2005, judgments following decisions on the merits, by the court of a contracting state that was the chosen court in an exclusive choice of court agreement, may be enforced. This may include default judgments (Article 4 (1)) and final injunctions. Interim orders, however, will not be enforced. Enforcement of judgments giving non-monetary remedies can be enforced, but awards for sums of money that include exemplary or punitive damages may be refused enforcement. • Similarly, under the Hague Judgments Convention 2019, judgments following decisions on the merits by the court of a contracting state that had juris - diction on one of the bases set out in the Conven - tion (including under a non-exclusive jurisdiction agreement) may be enforced. This may include default judgments and final injunctions. Interim orders, however, will not be enforced. Enforcement of judgments giving non-monetary remedies can be enforced, but awards for sums of money that include exemplary or punitive damages may be refused enforcement. • Under the AJA 1920, the 1933 Act and the com - mon law, only money judgments may be enforced and, as explained in 3.1 Legal Issues Concern- ing Enforcement of Foreign Judgments , under the common law, a fresh judgment of the English court must first be obtained. The judgment being enforced must be final and conclusive. Interim judgments will not usually be final, unless they rep -
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