Enforcement of Foreign Judgments Comparative Guide -

1 Legal and judicial framework

1.1 Which legislative and regulatory provisions govern the recognition and enforcement of foreign judgments in your jurisdiction?

In England and Wales, a range of rules govern the recognition and enforcement of foreign judgments. Which rules apply will depend on where and when the foreign judgment was obtained.

The recognition and enforcement of judgments obtained in EU member states where proceedings were commenced before 11:00pm on 31 December 2020 are governed by EU rules pursuant to Article 126 of the EU-UK Withdrawal Agreement 2019, which was implemented in the United Kingdom by the European Union (Withdrawal Agreement) Act 2020. The most recent iteration of these rules is the Recast Brussels Regulation (Regulation (EU) 1215/2012), which applies to judgments given in proceedings commenced on or after 10 January 2015. The predecessor to the Recast Brussels Regulation (Regulation (EU) 44/2001) continues to apply to judgments given in proceedings commenced before 10 January 2015. The 1968 Brussels Convention also continues to apply in relation to judgments given in Gibraltar and some dependent territories of EU member states. For judgments obtained in Iceland, Norway and Switzerland (which are not part of the European Union, but are part of the European Free Trade Association (EFTA)), the relevant rules where proceedings were commenced before 11:00pm on 31 December 2020 are found in the 2007 Lugano Convention (pursuant to SI 2019/479, reg 92). These rules are broadly the same as those under the 2001 Brussels Regulation. For convenience, this Q&A refers to these rules collectively as the 'EU/EFTA rules'.

The recognition and enforcement of judgments obtained in EU member states where proceedings were commenced after 11:00pm on 31 December 2020 are governed by the 2005 Hague Convention on Choice of Court Agreements where judgment is given pursuant to an exclusive jurisdiction clause in favour of that member state entered into after the convention came into force in that state (1 October 2015 in respect of all EU member states other than Denmark, where the relevant date is 1 September 2018). This is provided that the subject matter of the proceedings is within the scope of the convention: in contrast to the EU/EFTA rules, it does not apply, for example, to employment and consumer contracts. The Lugano contracting states – Norway, Switzerland and Iceland – are not parties to the 2005 Hague Convention.

The recognition and enforcement of judgments obtained in Mexico, Singapore and Montenegro are also governed by the 2005 Hague Convention on Choice of Court Agreements where judgment is given pursuant to an exclusive jurisdiction clause in favour of the relevant country entered into after the convention came into force in that country (1 October 2015 in the case of Mexico, 1 October 2016 in the case of Singapore and 1 August 2018 in the case of Montenegro). China, Israel, North Macedonia, Ukraine and the United States have all signed the convention, but not brought it into force.

In addition to the EU/EFTA rules and the Hague Convention rules, the United Kingdom has bilateral arrangements with various countries and British overseas territories. These rules are given effect in England and Wales by two statutes.

The Administration of Justice Act 1920 applies to judgments obtained in the superior courts of various commonwealth countries and British overseas territories. These include Anguilla, Antigua and Barbuda, Bahamas, Barbados, Belize, Bermuda, Botswana, the British Indian Ocean Territory, the British Virgin Islands, the Cayman Islands, Dominica, the Falkland Islands, Fiji, the Gambia, Ghana, Grenada, Guyana, Jamaica, Kenya, Kiribati, Lesotho, Malawi, Malaysia, Mauritius, Montserrat, New Zealand, Nigeria, Papua New Guinea, St Kitts and Nevis, St Helena, St Lucia, St Vincent and the Grenadines, Seychelles, Sierra Leone, Singapore (in relation to which the act will apply where the 2005 Hague Convention on Choice of Court Agreements does not apply), the Solomon Islands, Sri Lanka, Swaziland, Tanzania, Trinidad and Tobago, the Turks and Caicos Islands, Tuvalu, Uganda, Zambia and Zimbabwe.

The 1920 act may also apply to judgments obtained in the superior courts of Malta and Cyprus, save where:

the proceedings began before 11:00pm on 31 December 2020 (in which case the Recast Brussels Regulation will apply); or
the proceedings began after that date and the court had jurisdiction pursuant to an exclusive jurisdiction clause entered into on or after 1 October 2015 (in which case the 2005 Hague Convention on Choice of Court Agreements will apply).

The 1920 act applied to judgments from Malta and Cyprus prior to the EU regime coming into force. It is likely that this act applies once again now that the United Kingdom has left the European Union, as the relevant statutory instruments remain in force; but this is not entirely free from doubt.

The judgment creditor can, if it wishes, bring an action on the judgment under the common law rules instead, but it will not generally obtain its costs of those proceedings unless it has applied unsuccessfully for registration under the 1920 act.

The Foreign Judgments (Reciprocal Enforcement) Act 1933 applies to judgments obtained in Australia, Canada, Guernsey, Jersey, the Isle of Man, India, Israel, Pakistan, Suriname and Tonga. It also applies to Norway where the Norwegian proceedings were commenced after 31 December 2020; if the proceedings were commenced before that date, then the Lugano Convention 2007 will apply pursuant to SI 2019/479, reg 92. The 1933 act is extended to each territory by way of a statutory instrument which states the specific courts and territories to which the act applies. The most recent statutory instrument in relation to Norway is the Reciprocal Enforcement of Foreign Judgments (Norway) (Amendment) (England and Wales and Northern Ireland) Order (SI 2020/1338)). It is advisable to check the statutory instrument for the relevant country, as there are some nuances - for example, the 1933 act extends to judgments of the Federal Court of Canada and most of the provinces, but not Quebec and Nunavut.

The 1933 act may also apply to judgments obtained in Austria, Belgium, France, Germany, Italy and the Netherlands, save where:

the proceedings began before 11:00pm on 31 December 2020 (in which case the Recast Brussels Regulation will apply); or
the proceedings began after that date and the court had jurisdiction pursuant to an exclusive jurisdiction clause entered into on or after 1 October 2015 (in which case the Hague Convention on Choice of Court Agreements will apply).

The 1933 act applied to judgments from these EU countries prior to the EU regime coming into force. It is likely that this act applies once again now that the United Kingdom has left the European Union, as the relevant statutory instruments remain in force; but this is not entirely free from doubt.

If the judgment does not fall within any of the specific rules outlined above, then the recognition and enforcement of the judgment are governed by the English common law rules. This includes judgments obtained in countries such as Argentina, Brazil, China, Indonesia, Japan, Russia, Saudi Arabia, South Africa, South Korea, Turkey and the United States.

The rules outlined above apply to the recognition and enforcement of judgments in civil and commercial matters. There are separate rules for other types of judgments, such as matrimonial or parental issues or the international carriage of goods; but a detailed consideration of these rules is beyond the scope of this Q&A.

There are specific rules for the enforcement of judgments obtained in one part of the United Kingdom in another part of the United Kingdom. These rules are found in the Civil Jurisdiction and Judgments Act 1982, but are not discussed in detail in this Q&A.

The instruments and statutes referred to above set out the substantive rules for the recognition and enforcement of foreign judgments which apply in England and Wales. Where this Q&A explains the procedure for the recognition and enforcement of foreign judgments, it refers to rules in England and Wales which are (save in respect of enforcement under the common law rules) largely set out in the Civil Procedure Rules, Part 74. The rules may be different in Scotland and Northern Ireland.

1.2 Which bilateral and multilateral instruments on the recognition and enforcement of foreign judgments have effect in your jurisdiction?

As explained in question 1.1, the Recast Brussels Regulation (Regulation (EU) 1215/2012), the predecessor Brussels Regulation (Regulation (EU) 44/2001), the 1968 Brussels Convention and the 2007 Lugano Convention continue to have effect in the United Kingdom where the relevant proceedings were started in an EU or Lugano member state before 11:00pm on 31 December 2020. The 2005 Hague Convention on Choice of Court Agreements also applies to the United Kingdom in the circumstances explained in question 1.1.

The United Kingdom is also party to bilateral agreements with various countries and British overseas territories. These are given effect in the United Kingdom by domestic legislation as explained in question 1.1.

1.3 Which courts have jurisdiction to hear applications for the recognition and enforcement of foreign judgments?

Applications for the recognition and enforcement of foreign judgments are dealt with by the Queen's Bench Division of the High Court.

2 Requirements for enforceability

2.1 What types of judgments may be recognised and enforced in your jurisdiction? Are any types of judgments specifically precluded from enforcement?

Non-monetary judgments (eg, final injunctions) are capable of recognition and enforcement only if they fall within the EU/European Free Trade Association (EFTA) rules or the Hague Convention.

Monetary judgments which are final and conclusive are generally capable of recognition and enforcement in England regardless of the jurisdiction in which they are obtained. However, there are specific carve-outs for certain monetary judgments:

Judgments in respect of taxes, fines and penalties cannot be recognised and enforced under the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933 or the common law rules. Section 1(2) of the 1933 act expressly excludes such judgments from its scope. There is no express exclusion in the 1920 act, but recognition and enforcement of a foreign judgment under that act are at the courts' discretion "if in all the circumstances of the case they think it just and convenient" (Section 9(1) of the 1920 act). It is generally accepted that the court will exercise its discretion not to allow the enforcement of judgments in respect of taxes, fines and penalties.
Similarly, judgments for multiple damages (ie, damages calculated by doubling, trebling or otherwise multiplying a sum assessed as compensation) cannot be recognised and enforced under the 1920 act, the 1933 act or the common law rules (Section 5 of the Protection of Trading Interest Act 1980).

It is also not possible to enforce judgments for taxes, fines and multiple damages under the EU/EFTA/Hague Convention rules.

Default judgments are capable of recognition and enforcement if the relevant requirements as to service of the proceedings on the judgment debtor and the jurisdiction of the foreign court are met (see question 5).

Interim orders are capable of recognition and enforcement only if they fall within the EU/EFTA rules and even then subject to certain conditions.

2.2 Must a foreign judgment be final and binding before it can be enforced?

Yes. Generally, a foreign judgment must be final and binding before it can be enforced in England. As noted, however, interim orders are capable of recognition and enforcement if they fall within the EU/EFTA rules, subject to certain conditions.

2.3 Is a foreign judgment enforceable if it is subject to appeal in the foreign jurisdiction?

The English courts generally have at least a discretion not to allow a foreign judgment to be recognised and enforced in England if it is subject to appeal in the jurisdiction in which it was obtained. The exact formulation of this principle varies depending on the particular rules that apply.

Under the common law rules, the fact that an appeal is pending in the foreign jurisdiction is not necessarily a bar to an action to enforce the foreign judgment in England. However, the English court may stay the proceedings to enforce the judgment in England if an appeal is pending in the foreign jurisdiction (eg, see Scott v Pilkington (1862) 121 ER 978).

Judgments obtained in 1920 act countries cannot be recognised and enforced in England if the judgment debtor satisfies the court either that an appeal is pending or that it is entitled to and intends to appeal (Section 9(2)(e) of the 1920 act). A similar test applies to judgments obtained in 1933 act countries - the difference being that under the 1933 act, it is a matter for the court's discretion whether to set aside or adjourn the application for registration of the foreign judgment if it is subject to appeal (Section 5(1) of the 1933 act).

Under the Recast Brussels Regulation, the English court may suspend proceedings in which the foreign judgment is being invoked if the judgment has been challenged in the jurisdiction in which it was obtained (Article 38 of the Brussels Regulation). Where an application has been made by the debtor for refusal of enforcement, the English court may stay the proceedings if an appeal has been lodged in the country where the judgment was obtained or if the time for such an appeal has not yet expired. In the latter case, it may specify the time within which the appeal is to be lodged (Article 51 of the Recast Brussels Regulation). The English court must also suspend enforcement of the judgment in England if enforcement has been suspended in the jurisdiction in which the judgment was obtained (which may or may not be the case) (Article 44 of the Recast Brussels Regulation).

Under the other EU/EFTA rules, the English court may suspend proceedings in which the foreign judgment is being invoked if an appeal against the judgment has been lodged in the jurisdiction in which it was obtained (Article 37(1) of the 2001 Brussels Regulation, Article 37(1) of the Lugano Convention and Article 30 of the Brussels Convention). Before the judgment can be enforced in England, the creditor will need to make an application for registration of the judgment. If the debtor appeals against the registration of the judgment, the English court can stay the enforcement proceedings if an appeal has been lodged against the judgment in the country of origin or if the time for such an appeal has not yet expired. In the latter case, the court may specify the time within which an appeal is to be lodged (Article 46(1) of the 2001 Brussels Regulation, Article 46(1) of the Lugano Convention and Article 38(1) of the Brussels Convention).

Under the Hague Convention, the English court may postpone or refuse recognition and enforcement of the foreign judgment if it is subject to review in the jurisdiction in which it was obtained or if the time limit for seeking ordinary review has not expired (Article 8(4) of the Hague Convention). The English court can allow enforcement of the foreign judgment only if it is enforceable in the jurisdiction in which it was obtained (Article 8(3) of the Hague Convention).

2.4 What is the limitation period for making an application for recognition and enforcement?

There are different limitation periods depending on which rules apply.

The 1920 act has the shortest limitation period: an application for registration must be made within 12 months of the date of the judgment (although the court has discretion to allow a longer period) (Section 9(1) of the 1920 act). However, if the creditor is unsuccessful in seeking registration under the 1920 act or is unable to seek registration, it can still seek to enforce under the common law rules where there is a longer limitation period, subject to possible adverse costs consequences.

For judgments obtained in 1933 act countries, an application for registration must be made within six years of the date of the judgment (Section 2(1) of the 1933 act).

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 (Section 24(1) of the Limitation Act 1980).

Judgments falling within the EU/EFTA rules and the Hague Convention are not subject to a set limitation period, but they must still be enforceable in the jurisdiction in which they were obtained in order to be recognised and enforceable in England (Article 39 of the Recast Brussels Regulation and Article 8(3) of the Hague Convention).

3 Recognition and enforcement process

3.1 Is recognition of a foreign judgment a separate process from enforcement and does it have separate legal effects?

Yes. Recognition and enforcement of foreign judgments are separate processes.

Before a foreign judgment can be enforced in England, it must generally first be recognised. This is a formal procedure usually involving an application to the court for registration of the judgment or the issuing of new proceedings and obtaining judgment. The only exception is for judgments obtained in EU member states which fall within the Recast Brussels Regulation (where proceedings commenced before 11:00pm on 31 December 2020 – see question 1.1), which are automatically recognised; the obligation is on the debtor to apply for refusal of recognition and enforcement (Articles 36 and 45 of the Recast Brussels Regulation).

Once the necessary steps have been successfully completed, the foreign judgment will be enforced as if it were an English judgment (where the common law applies, there will in fact be an English judgment). There are several ways of enforcing an English judgment, including writs of control, third-party debt orders and charging orders.

In addition to the formal procedure for recognition of foreign judgments with a view to enforcing them in England, it is possible for a foreign judgment to be recognised within English proceedings - for example, to prevent the parties arguing a point that has already been decided in foreign proceedings between the same parties.

3.2 What is the formal process for recognition and enforcement?

As explained in question 3.1, recognition and enforcement are two separate processes.

The formal process that must be followed in order for the judgment to be recognised depends on which rules apply.

The position is most straightforward for judgments obtained in EU member states and which fall within the scope of the Recast Brussels Regulation (where proceedings were commenced before 11:00pm on 31 December 2020 – see question 1.1):

These judgments are automatically recognised and there is no need for the creditor to make an application to the court for registration of the judgment (Articles 36 and 39 of the Recast Brussels Regulation). The creditor will need to obtain a certificate of enforceability from the foreign court that issued the judgment and serve this certificate along with the judgment and a translation (if necessary) on the debtor before beginning steps to enforce the judgment (Articles 42 and 43 of the Recast Brussels Regulation).
If the creditor then wishes to take enforcement steps, it must give the court a copy of the certificate of enforceability and the judgment, and provide information on the recoverable costs of the proceedings and how any interest should be calculated (Article 43 of the Recast Brussels Regulation).

For judgments that fall within the EU/European Free Trade Association (EFTA) rules (other than the Recast Brussels Regulation), judgments that fall within the Hague Convention and judgments obtained in Administration of Justice Act 1920 and Foreign Judgments (Reciprocal Enforcement) Act 1933 countries, the process is as follows:

The creditor will need to make a without notice application to a master in the Queen's Bench Division of the High Court. Details of the procedure for making an application are set out in the Civil Procedure Rules, Part 74.
The application will need to be supported by written evidence setting out, among other things, the amount of the judgment and interest, and the grounds on which the creditor is entitled to enforce the judgment. The full requirements for what should be included in the written evidence are set out in the Civil Procedure Rules, Part 74.4 and vary depending on which rules apply.
The written evidence will also need to include:
- a verified or certified copy of the judgment;
- a certified translation (if necessary); and
- any other specific documents required by Part 74.4.
If the master grants permission for the judgment to be registered, then the creditor must serve a registration order on the debtor. The registration order will include:
- particulars of the judgment;
- the name and address for service of the creditor; and
- details of the debtor's right to apply to have the registration set aside or to appeal against the registration.
The creditor must file evidence with the court to show that the registration order has been served.
Once the registration order has been served and the period for the debtor to apply to have the registration set aside, or to appeal against the registration, has passed, the creditor can take steps to enforce the judgment.

For judgments falling within the common law rules, the process is as follows:

The creditor will need to commence a fresh claim in the English courts to obtain an English judgment in respect of the foreign judgment debt.
The creditor will need to issue a claim form and particulars of claim in accordance with the Civil Procedure Rules, Part 7.
If the debtor fails to acknowledge service of the claim or to file a defence within the required timeframe, then it may be possible to obtain a default judgment in accordance with the Civil Procedure Rules, Part 12.
If the debtor does file an acknowledgment of service, then it will usually be possible to apply for summary judgment under the Civil Procedure Rules, Part 24, on the basis that the debtor has no real prospect of succeeding on the claim. An application for summary judgment must be supported by written evidence.
Once the creditor has obtained a judgment from the English court in respect of the foreign judgment debt, it will be able to enforce the judgment in England in the same way as any other English judgment.

3.3 What documents are required in support of an application for recognition and enforcement?

The documents that are required in support of an application for recognition and enforcement are explained in question 3.2.

3.4 What fees are payable for recognition and enforcement?

The fees that are payable will vary depending on the specific rules that apply. Generally, they will comprise:

the court fees for any application for registration/recognition of the judgment;
the associated legal fees for preparing the application and responding to any challenges; and
the legal and other professional fees for enforcing the judgment.

The application fees are as follows:

For judgments obtained in EU member states that fall within the Recast Brussels Regulation, no application is required and so there is no application fee.
For judgments that fall within the other EU/EFTA rules, judgments obtained in 1920 act and 1933 act countries, and judgments that fall within the Hague Convention, the standard fee for an application without notice is currently £108.
For judgments obtained in other jurisdictions, the creditor will need to commence a new claim to obtain an English judgment in respect of the foreign judgment debt. The creditor will need to pay the usual court fees, which are an issue fee and a hearing fee. The amount of these fees varies depending on the value of the debt. The maximum issue fee is currently £10,000 and the maximum hearing fee is currently £1,175. These sums are recoverable from the debtor if the creditor is successful, on the basis that the loser pays the winner's costs (subject to the usual discretion that the court has to make a different order).

The legal and other professional fees will vary on a case-by-case basis.

3.5 Is the applicant required to provide security for costs?

Where enforcement is sought under the 2005 Hague Convention, the creditor cannot be required to give security for costs solely on the ground that it is resident out of the jurisdiction (Civil Procedure Rule 74.5(2)).

Subject to this, the debtor can make an application for security for costs and the usual rules for such applications will apply. The full detail of these rules is beyond the scope of this Q&A, but they can be found in the Civil Procedure Rules, Part 25.

In general terms, the court may make an order for security for costs if:

it is satisfied, having regard to all circumstances of the case, that it is just to make such an order; and
one of the specified conditions applies or an enactment permits the court to require security for costs. The specified conditions include, among other things, that:
- the creditor is resident out of the jurisdiction (but not in a state bound by the Hague Convention, regardless, it seems, of whether the matter falls within that convention); or
- the creditor is a company or other body and there is reason to believe that it will be unable to pay the debtor's costs if ordered to do so.

An application for security for costs can cover:

the debtor's costs of the application for registration;
any proceedings brought to set aside the registration;
any appeal against the granting of the registration; and
any application in relation to the recognition or enforcement of a judgment pursuant to the Recast Brussels Regulation (Civil Procedure Rule 74.5(1)).

3.6 How long does it usually take to obtain a declaration of enforceability?

The timing of the formal process for recognition of a foreign judgment will depend on the specific process that needs to be followed (as explained above).

An application to a master in the Queen's Bench Division of the High Court is a fairly straightforward process and will usually take a few weeks. If the debtor then seeks to have the registration set aside or appeals against the registration, then the process will take longer.

Where the creditor needs to commence a new claim in England, the process may take longer depending on how the debtor responds to the claim:

Once the creditor has served the claim form and particulars of claim, the debtor will generally have 14 days to file an acknowledgement of service and up to 28 days to file and serve a defence.
If the debtor files an acknowledgement of service and admits the claim, then the creditor will be able to apply to the court for judgment.
If the debtor fails to file an acknowledgement of service or defence within the required time limit, then the creditor will be able to apply to the court for a default judgment.
If the debtor serves an acknowledgement of service indicating an intention to defend, then it will usually be possible for the creditor to apply for summary judgment. Such an application will usually take at least several weeks, as both parties will need to serve evidence in relation to the application. The timing will also depend on the court's availability for a hearing of the application.
If the creditor is unable to obtain summary judgment, then it will be necessary for the claim to be dealt with at trial. Even in a relatively straightforward enforcement case with few issues, this is likely to take several months.

3.7 Can the applicant seek injunctive relief while the process is ongoing?

While the recognition process is ongoing, the creditor may be able to apply for injunctive relief such as a freezing injunction to prevent the debtor from dissipating its assets or removing them from the jurisdiction.

A detailed analysis of the rules on freezing injunctions is beyond the scope of this Q&A. However, in general terms, in order to obtain a freezing injunction the creditor will need to show the following:

It has a good arguable case that it is entitled to the money from the debtor;
The debtor has assets within the jurisdiction;
There is a real risk that the debtor will dissipate its assets or remove them from the jurisdiction; and
It is just and convenient to grant the injunction in the circumstances of the case.

4 Defences

4.1 On what grounds can the defendant challenge recognition and enforcement of a foreign judgment?

The grounds for challenging the recognition and enforcement of a foreign judgment are set out in question 5. Depending on which rules apply, the grounds for challenge include the following:

The debtor was not given proper notice of the foreign proceedings;
The foreign court did not have proper jurisdiction over the claim;
The judgment is contrary to English public policy;
There is a previous English judgment, or a previous foreign judgment that can be recognised and enforced in the England, between the parties in relation to the same dispute;
The judgment was obtained by fraud;
The judgment is for multiple damages; or
The foreign proceedings were brought in breach of a jurisdiction agreement.

4.2 What is the limitation period for filing a challenge?

The process and timing for challenging the recognition of a foreign judgment depend on which rules apply.

EU judgments falling within the Recast Brussels Regulation (where proceedings were commenced before 11:00pm on 31 December 2020 – see question 1.1) are automatically recognised. The judgment debtor will therefore need to make an application to the English court for an order to refuse recognition and enforcement of the judgment. That application should be made under the usual rules for applications contained in the Civil Procedure Rules, Part 23 (Civil Procedure Rule 74.7A(1)). There is no limitation period for making such an application, but the application should be made as soon as possible.

For judgments falling within the other EU/European Free Trade Association (EFTA) rules or the Hague Convention, the creditor will make a without notice application for registration of the foreign judgment and serve a registration order on the debtor. The registration order will state the debtor's right to appeal against the registration and the period within which such an appeal can be brought. The debtor will need to commence an appeal by filing and serving an appellant's notice within one month of service of the registration order (or two months if service is to be effected on a party not domiciled within the jurisdiction). The appeal will be subject to the usual rules on appeals contained in the Civil Procedure Rules, Part 52 (except that permission is not required to appeal or to put in evidence) (Civil Procedure Rule 74.8).

For judgments obtained in Administration of Justice Act 1920 or Foreign Judgments (Reciprocal Enforcement) Act 1933 countries, the creditor will make a without notice application for registration of the foreign judgment and serve a registration order on the debtor. The registration order will state the debtor's right to apply to have the registration set aside and the period within which such an application can be made (Civil Procedure Rule 74.7). The application to set aside the registration should be made under the usual rules for applications contained in the Civil Procedure Rules, Part 23.

For judgments falling within the common law rules, the creditor will need to commence fresh proceedings in England to recognise and enforce the foreign judgment. The debtor will be given notice of the proceedings. If it intends to contest the proceedings, it should, within the relevant time limits, file an acknowledgement of service indicating an intention to defend and then serve a defence setting out the basis on which it claims the judgment is not enforceable in England. An appeal will be subject to the usual rules on appeals contained in the Civil Procedure Rules, Part 52. Permission to appeal will be required.

4.3 Can the defendant seek injunctive relief to prevent enforcement while a challenge is pending?

For judgments that fall within the Recast Brussels Regulation, if the debtor makes an application to challenge the recognition and enforcement of the foreign judgment, it can also apply to the English court to:

limit the enforcement proceedings to protective measures;
make any enforcement conditional on the creditor providing security; or
suspend the enforcement proceedings either wholly or in part (Article 44(1) of the Recast Brussels Regulation).

For judgments falling within the other EU/EFTA rules or the Hague Convention, or judgments obtained in 1920 act or 1933 act countries, the creditor will need to make an application for registration of the foreign judgment and then serve a registration order on the debtor. The registration order will state the debtor's right to challenge or appeal against the registration and the time period within which such a challenge or appeal must be brought. No steps can be taken to enforce the judgment before the end of that period, except measures ordered by the English court to preserve the assets of the debtor. If the debtor challenges or appeals the registration, then no steps can be taken to enforce the judgment until that application or appeal has been determined (Civil Procedure Rule 74.9).

5 Court analysis and decision

5.1 Will the court review service of process in the initial proceedings?

For judgments that fall within the EU/European Free Trade Association (EFTA) rules, the English court will not generally review service of process in the initial proceedings. This is on the basis that the debtor should have raised any issues in relation to service in the foreign proceedings. The English court will review service of process only in the case of default judgments (ie, judgments given in the absence of the debtor's appearance), which the English court may refuse to recognise if the debtor was not served in sufficient time and in such a way as to enable it to arrange for its defence (Article 45(1)(b) of the Recast Brussels Regulation). However, the English court cannot refuse to recognise a default judgment where the debtor could have commenced proceedings to challenge that judgment in the foreign court and failed to do so.

For other judgments, the English court may review the service of process in the initial proceedings, as follows:

Judgments obtained in Administration of Justice Act 1920 countries will not be recognised and enforceable if the debtor was not duly served and did not appear in the initial proceedings (Section 9(2)(c) of the 1920 act).
Judgments obtained in Foreign Judgments (Reciprocal Enforcement) Act 1933 countries will not be recognised and enforceable if the debtor did not receive notice of the initial proceedings in sufficient time that it was able to defend the proceedings (even if the debtor was duly served in accordance with the law of the foreign jurisdiction) and did not appear in the initial proceedings (Section 4(1)(a)(iii) of the 1933 act).
For judgments that fall within the Hague Convention, the English court can refuse recognition and enforcement if the document commencing the proceedings:
- was not notified to the debtor in sufficient time and in such a way that it was able to defend the proceedings, unless the debtor appeared in the foreign proceedings and presented its case without contesting notification in the initial proceedings when it was possible to do so; or
- was notified to the debtor in a manner that is not compatible with the fundamental principles of English law concerning the service of documents (Article 9(c) of the Hague Convention).
For other judgments - that is, those falling within the common law rules - the court may refuse to recognise and enforce a judgment if the defendant was not given proper notice of the proceedings or the opportunity to be heard such that the initial proceedings breached the rules of natural justice.

5.2 Will the court review the jurisdiction of the foreign court in the initial proceedings?

The extent to which the English court will review the jurisdiction of the foreign court will depend on which rules apply.

Under the EU/EFTA rules, the English court will not generally review the jurisdiction of the foreign court in the initial proceedings (Article 45(3) of the Recast Brussels Regulation). However, the English court may refuse to enforce a judgment where the jurisdiction of the foreign court is inconsistent with the EU/EFTA rules on jurisdiction in relation to insurance matters, consumer contracts, employment contracts and matters of exclusive jurisdiction (eg, claims in relation to immovable property, companies, public registers or patents and trademarks) (Article 45(1)(e) of the Recast Brussels Regulation). When considering whether to refuse to enforce the judgment on this basis, the English court will be bound by the findings of fact on which the foreign court based its jurisdiction (Article 45(2) of the Recast Brussels Regulation).

The Hague Convention is slightly different, as it applies only to judgments obtained where the foreign court was designated in an exclusive choice of court agreement. The basis on which the foreign court had jurisdiction will therefore be relevant in determining whether the Hague Convention applies. The English court can refuse to recognise and enforce the judgment if the choice of court agreement was null and void under the law of the state of the chosen court or one of the parties lacked capacity to conclude the choice of court agreement under English law (Articles 9(a) and (b) of the Hague Convention). However, the English court will be bound by the findings of fact made by the foreign court in relation to its jurisdiction unless the judgment was given by default (Article 8(2) of the Hague Convention).

For all other judgments, the English court will consider whether the foreign court had personal jurisdiction over the defendant:

For judgments obtained in 1920 act countries, the English court will consider whether the defendant:
- was carrying on business in the jurisdiction;
- was ordinarily resident in the jurisdiction; or
- voluntarily appeared or otherwise submitted or agreed to submit to the jurisdiction of the foreign court (eg, by means of a jurisdiction clause) (Section 9(2)(b) of the 1920 act).
For judgments obtained in 1933 act countries, the English court will consider whether the defendant:
- submitted to the jurisdiction of the foreign court (eg, by means of a jurisdiction clause);
- was resident or had its principal place of business in the foreign jurisdiction; or
- had an office or place of business in the foreign jurisdiction and the proceedings related to a transaction effected through that office or place of business.
The court will also consider whether the subject matter of the judgment is immovable property or rights in rem in relation to movable property which, at the time of the proceedings, was situated in the foreign court (Section 4(2) of the 1933 act).
For judgments to which the common law rules apply, the English court will consider whether the defendant was present in the foreign jurisdiction when the proceedings were commenced, or submitted or agreed to submit to the jurisdiction of the foreign court (eg, by means of a jurisdiction clause). The English court will not recognise and enforce a foreign judgment if the foreign court assumed jurisdiction on any other basis, even if the English court would have jurisdiction on that basis.

5.3 Will the court review the foreign judgment for compliance with applicable law and public policy?

The English court can generally refuse to recognise and enforce a foreign judgment where to do so would be contrary to English public policy. For example, the English court may refuse to recognise and enforce judgments obtained in breach of an anti-suit injunction or judgments that breach the defendant's fundamental rights, including fundamental procedural rights.

The exact formulation of the rule varies depending on which rules apply:

Under the 1920 act, the English court will refuse recognition of a judgment if it 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 English court (Section 9(2)(f) of the 1920 act).
Under the 1933 act, the English court will refuse recognition of a judgment if enforcement of the judgment would be contrary to English public policy (Section 4(1)(a)(v) of the 1933 act).
Under the EU/EFTA rules, the English court will refuse recognition of the judgment if it would be "manifestly" contrary to English public policy (Article 45(1)(a) of the Recast Brussels Regulation).
Under the Hague Convention, the English court may refuse recognition of the judgment if it would be "manifestly" incompatible with English public policy, including where the foreign proceedings were incompatible with England's fundamental principles of procedural fairness (Article 9(e) of the Hague Convention).

5.4 Will the court review the merits of the foreign judgment?

No, the English court will not generally review the merits of the foreign judgment regardless of the jurisdiction in which the foreign judgment was obtained (eg, see Article 52 of the Recast Brussels Regulation and Article 8(2) of the Hague Convention).

5.5 How will the court proceed if the foreign judgment conflicts with a previous judgment in relation to the same dispute between the same parties?

The English court can refuse to recognise and enforce a foreign judgment if it is irreconcilable or inconsistent with a previous English judgment, or a previous foreign judgment which can be recognised and enforced in England, between the same parties in relation to the dispute (eg, see Article 45(1)(d) and Article 46 of the Recast Brussels Regulation and Articles 9(f) and (g) of the Hague Convention).

5.6 Are there any other grounds on which the court may refuse to recognise and enforce the foreign judgment?

The 1920 act, 1933 act and Hague Convention all contain express provisions stating that the English court can refuse to recognise and enforce a foreign judgment if it was obtained by fraud (Section 9(2)(d) of the 1920 act, Section 4(1)(a)(iv) of the 1933 act and Article 9(d) of the Hague Convention where the fraud is in connection with a matter of procedure).

For judgments obtained in 1920 act or 1933 act countries and judgments which fall within the common law rules, there are other specific grounds on which the English court can refuse recognition and enforcement - for example:

where the judgment is for multiple damages (ie, damages calculated by doubling, trebling or otherwise multiplying a sum assessed as compensation) (Section 5 of the Protection of Trading Interest Act 1980); or
where the foreign proceedings were brought in breach of an agreement pursuant to which the dispute was to be settled other than through proceedings in the foreign court, unless the debtor submitted to the jurisdiction of the foreign court (Section 32 of the Civil Jurisdiction and Judgments Act 1982).

For judgments obtained in 1920 act countries, the English court has a discretion as to whether to register the judgment, which it will exercise only if "in all the circumstances of the case they think it is just and convenient that the judgment should be enforced in the United Kingdom" (Section 9(1) of the 1920 act).

5.7 Is partial recognition and enforcement possible?

Yes, it is possible for the English courts to allow recognition and enforcement of part of a foreign judgment.

5.8 How will the court deal with cost issues (eg, interest, court costs, currency issues)?

For EU judgments falling within the Recast Brussels Regulation, the certificate of enforceability issued by the foreign court will include relevant information on the recoverable costs of the proceedings and the calculation of interest (Articles 42(1)(b) and 53 and Annex 1 of the Recast Brussels Regulation). When the creditor takes steps to enforce the judgment in England, it will need to convert the amount of the judgment into sterling.

For other judgments falling within the EU/EFTA rules, judgments falling within the Hague Convention and judgments obtained in 1920 act and 1933 act countries, the judgment creditor will need to make an application for registration of the judgment. Where interest is recoverable on the judgment under the law of the foreign court, the evidence in support of the application should set out:

the amount of interest that has accrued up to the date of the application or the rate of interest;
the date from which interest is recoverable; and
the date on which it ceases to accrue (Civil Procedure Rule 74.4(2)(e)).

If the foreign judgment includes a determination of costs by the foreign court, this can also be enforced as part of the judgment. The registration order will express the amount of the judgment in the foreign currency, and when the creditor takes steps to enforce the judgment in England, it will need to convert the amount of the judgment into sterling. The English court will usually order that the costs of the application for registration be assessed and added to the amount of the foreign judgment.

For judgments falling within the common law rules, the creditor will need to commence fresh proceedings. If the creditor is seeking interest on the judgment, then the particulars of claim should set out the basis on which interest is claimed and how it has been calculated. If the foreign judgment includes a determination of costs by the foreign court, then this should also be included in the particulars of claim. The particulars of claim should also show the amount of the foreign judgment converted into sterling at the date the claim is issued and the source of the exchange rate relied on.

6 Appeals

6.1 Can decisions in relation to the recognition and enforcement of foreign judgments be appealed?

The process for challenging a decision on the recognition and enforcement of a foreign judgment is explained in question 4.2.

6.2 Can the applicant seek injunctive relief while the appeal is pending?

In principle, the creditor can apply for a freezing injunction while the appeal is pending - for example, if it becomes aware at this stage of steps being taken to dissipate assets. However, in practice, the creditor is likely to have applied for a freezing injunction at an earlier stage before the debtor is given notice of the proceedings to recognise and enforce the judgment. If the creditor has delayed in seeking an injunction, the court will take this into account in deciding whether to grant the injunction.

See question 3.7 for further details.

7 Enforcing the foreign judgment

7.1 Once a declaration of enforceability has been granted, how can the foreign judgment be enforced?

Once a foreign judgment has been recognised in England (assuming that recognition is required), it can be enforced in the same way as an English judgment. In the case of enforcement under the common law, if the creditor is successful, it will have an English judgment in its favour which it can enforce. Under the Recast Brussels Regulation, no declaration of enforceability is required; so once the judgment and relevant certificate are served on the debtor, enforcement measures can begin, subject to the debtor's right to apply for refusal of enforcement.

In England, there are various steps that can be taken to enforce a judgment, including the following:

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.

7.2 Can the foreign judgment be enforced against third parties?

In England, a judgment - whether domestic or foreign - cannot be enforced against a party other than the judgment debtor. However, it may be possible to apply for an order against a third party in order to assist with enforcing the judgment against the debtor. For example, it may be possible to apply for a third-party debt order to obtain payment directly from a bank which holds funds for the debtor, or an attachment of earnings order to obtain payment directly from an employer by way of a deduction from the debtor's wages.

8 Trends and predictions

8.1 How would you describe the current enforcement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The most significant development is the United Kingdom's exit from the European Union, which has changed the rules in relation to the recognition and enforcement of EU judgments given after 11:00pm on 31 December 2020, as explained in question 1.1.

On April 2020, the United Kingdom applied to rejoin the Lugano Convention 2007. If the United Kingdom were to accede to the Lugano Convention, this would then apply between the United Kingdom and the European Union and the United Kingdom and Norway, Switzerland and Iceland. The 2005 Hague Convention on Choice of Court Agreements would in those circumstances no longer apply between the United Kingdom and EU member states, and would revert to applying only between the United Kingdom and Mexico, Singapore and Montenegro.

In order to rejoin the Lugano Convention, the United Kingdom requires the agreement of all parties to the convention and as of July 2022 the European Commission has not agreed. In a 'note verbale' to the Swiss Federal Council as depository of the Lugano Convention dated June 2021, it stated: "The European Commission, representing the European Union, would like to notify to you that the European Union is not in a position to give its consent to invite the United Kingdom to accede to the Lugano Convention."

We understand that the decision as to whether to consent to the United Kingdom's accession is ultimately a decision for the Council of the European Union to take by qualified majority voting. However, unless and until a proposal is put to a vote by the Council (and the Council votes in favour of giving its consent), the United Kingdom will remain unable to accede.

The United Kingdom may in the future become a party to the 2019 Hague Judgments Convention. This convention complements the 2005 Hague Convention on Choice of Court Agreements by allowing the enforcement of judgments in much broader circumstances. In particular, in contrast to the 2005 convention, it does not require an exclusive jurisdiction clause in favour of a contracting state, and employment and consumer contracts are within scope. It could therefore significantly streamline the enforcement of judgments between the United Kingdom and the European Union in the event that the European Union does not consent to the United Kingdom rejoining the Lugano Convention 2007.

On 29 August 2022, the European Union acceded to and Ukraine ratified the 2019 Hague Judgments Convention. The convention will come into force on 1 September 2023 between all EU member states (except Denmark) and Ukraine, and will apply to the enforcement of judgments in proceedings commenced after 1 September 2023.

The UK government is considering its position on the 2019 Hague Judgments Convention and it is believed likely that it will consult on possible accession in the coming months.

However, implementation of the 2019 Hague Judgments Convention in relation to the United Kingdom remains some way off, even if the United Kingdom does ratify it. It will not come into force for any state until (approximately) 12 months after ratification. Even then, it will not apply unless the proceedings were started (as opposed to the judgment being issued) when the convention was in force for both the state of origin and the state of enforcement. This means that it will be some considerable time before it has any impact in practice.

The 2019 convention has also been signed but not ratified by Costa Rica, Israel, the Russian Federation, the United States and Uruguay.

9 Tips and traps

9.1 What are your top tips for smooth recognition and enforcement of foreign judgments, and what potential sticking points would you highlight?

The United Kingdom has multiple sets of rules for the recognition and enforcement of foreign judgments. While many of the general principles are the same, there are both substantive and procedural differences between the various rules. It is important to identify at the outset which specific rules apply to the judgment in question and to carefully follow the relevant procedures for recognition and enforcement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

UK: Enforcement of Foreign Judgments Comparative Guide