Enforcement of Foreign Judgments in England

When a litigant obtains a foreign judgment, is a necessary adjunct to international trade and commerce that litigants are able to enforce that judgment in other jurisdictions with relative ease. When enforced in England provides a remedy to satisfy an order to pay damages against a domiciled defendant or a defendant which owns assets in England. This article considers recognition and enforcement of judgments in England that were originally obtained in jurisdictions outside the European Union, including the US and Russia.

A judgment obtained in a foreign court is prima facie enforceable in England. If the judgment is overturned on appeal in the originating jurisdiction, it ceases to be enforceable in England.

In order for the judgment to be recognised, the decision must be res judicata of the issues dealt in the foreign litigation.

The matters that are prevented from being re-litigated extend to the causes of action based on facts alleged in the foreign court, in addition to any causes of action that may have been argued on the facts, whether or not they actually were presented to the court for determination. Thus, the formal defences of cause of action estoppel and issue estoppel are available to be pleaded to prevent re-litigation.

If the successful party wishes to enforce the judgment in England, after recognition of the judgment, the unsuccessful defendant is prevented from raising the same defences.

A special case for enforcement of proceedings emanating from the United Stated prevents enforcement of judgment in English of damages awards arrived at by multiplying a sum of damages by any factor. The unmultiplied award remains recoverable in England.

In addition where the foreign decision is based on a rule of law made pursuant to an order of the Secretary of State of a country, and that order is concerned with arrangements to restrain, distort or restrict competition or otherwise interfere with competitive markets.

To invoke the jurisdiction of English courts, the originating process must be served upon the defendant. This is the case in respect to enforcement of foreign judgments, as fresh proceedings are commenced in England to enforce the foreign judgment in order for (1) recognition and (2) enforcement.

Once an English judgment has been obtained, an array of procedures are available to enable a judgment creditor to satisfy the debt against a business. The means by which recovery will take place will usually be determined well before an application for recognition of the judgment in the UK.

It is always a risk that the defendant to the enforcement proceedings will look to dispose of assets within the jurisdiction, or remove assets from the jurisdiction.

The most obvious method for recovering against an English judgment is to take advantage of bankruptcy or insolvency proceedings under the Insolvency Act. Prior to issuing a bankruptcy petition against an individual, a statutory demand must be personally served. In the case of companies, statutory demands may be served upon the registered address of the company or a winding petition served for the purposes of appointing a liquidator.

There are several fundamental steps to enforcing a foreign judgment against a defendant in England. Firstly, the claimant must issue fresh proceedings in England, and thereafter serve those proceedings upon the defendant to the satisfaction of English Courts. If it is the case that the defendant takes a substantive step in the litigation, it will be deemed to have submitted to the jurisdiction of the court and disentitle itself to contesting the jurisdiction of the Court at later date.

Thereafter, if the foreign judgment is one that is able to be recognised in the Court of England, it is likely that the matters set out in the foreign judgment will be res judicata, leaving no defence to the defendant to enforcement of the claim in England against the assets of the defendant.