UK Law and Practice Contributed by: Simon Bushell and Gareth Keillor, Seladore Legal
5.2 Enforcement of Foreign Judgments Whether the English courts will recognise and enforce a foreign judgment depends on the juris - diction the judgment originates from. This factor will also dictate the framework for enforcement spanning treaties, common law and statutory regimes. For some countries, depending on the seniority of the court, when the judgment was handed down or its subject matter, etc, those looking to enforce a judgment may be able to utilise multiple regimes. Each has slightly differ - ent requirements and procedures, and varies in complexity. Consideration should therefore be given to which will be the most effective and efficient process. First, the most broadly adopt - ed treaty is the Hague Convention on Choice of Court Agreements of 2005. This applies as between the UK and the EU, Mexico, Singapore, Switzerland, as well as some additional signato - ries. It is often the most straightforward process, but is not without its limitations. For example, it only applies to exclusive choice of court agree - ments, and a country must have formally ratified the treaty for it to apply. Second, judgments from specified jurisdictions, including other United Kingdom and most Com - monwealth jurisdictions, have the benefit of express English statutory schemes for enforce - ment. Each piece of legislation has its own requirements and processes. Finally, the common law regime is somewhat of a catch-all for those jurisdictions (or discrete judg - ments) for which no other method is available. For example, it is the only option for effecting judgements from US or Chinese courts. How - ever, there are a number of requirements for a judgment to be within the scope of the com - mon law regime. This includes that the foreign court must have had jurisdiction on a territorial or consensual basis; and the judgment must be
on the merits for a debt or definite sum of money and be final and conclusive. Notably, the com - mon law process does not actually make the foreign judgment enforceable in England, rather it is regarded as having created a debt and the English court will then give an English judgment on that debt which can be executed. 6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination English law provides that a party may refuse to produce material or information that would oth - erwise be disclosable, if doing so will incriminate them in criminal proceedings or expose them to a penalty in England and Wales. This right will also be relevant in cases involving a search and seizure order (as discussed in 2.2 Preserv- ing Evidence ) in that the defendant must be informed of their privilege against self-incrimi - nation before the premises are entered. In the context of fraud, there are noteworthy lim - its on the right to privilege against self-incrimi - nation. First, Section 13 of the Fraud Act 2006 disapplies the privilege in relation to criminal fraud and the related offences (including bribery) under that Act. Secondly, the English courts have taken a limited reading of the privilege in respect of pre-existing evidence obtained through a search order that does not require the defend - ant to testify to its existence. In such cases, it has been held that the evidence obtained may be regarded as being able to “speak for itself” and so does not create the risk that the defend - ant will be coaxed into making a false statement.
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