Enforcement of judgments - Enforcement procedures in other j...

Learning Outcomes

This article outlines the main legal mechanisms and practical considerations for enforcing English judgments abroad, including:

• Reciprocal enforcement statutes and international conventions
• Local procedures in non-treaty countries
• Practical steps and key legal requirements for cross-border enforcement
• Strategic considerations for effective enforcement
• Defences and limitations to enforcement
• Registration criteria and grounds for refusal
• Impact of post-Brexit changes on EU/EEA enforcement

SQE1 Syllabus

For SQE1, you are required to understand the enforcement of judgments in other jurisdictions from a practical standpoint, with a focus on the following syllabus points:

• the main legal routes for enforcing English judgments abroad, including reciprocal enforcement statutes and international conventions
• the procedural steps for registering and enforcing foreign judgments in England and Wales
• the practical implications of enforcing judgments in countries without reciprocal arrangements
• the key defences and limitations to enforcement in cross-border cases
• the role of CPR Part 74 in registration and enforcement; time limits and evidential requirements
• enforcement in Scotland and Northern Ireland via CJJA 1982 certificates and local registration
• recognition and enforcement of arbitral awards under the New York Convention and Arbitration Act 1996
• post-Brexit position on EU judgments and the Hague Convention on Choice of Court Agreements

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the primary statutory route for enforcing a money judgment from Australia in England and Wales?
2. Which international convention is most commonly used to enforce arbitral awards between member states?
3. What is the usual first step when seeking to enforce an English judgment in a country with no reciprocal enforcement agreement?
4. Name two common grounds on which a foreign court may refuse to enforce an English judgment.

Introduction

Enforcing a judgment in another country is often essential where the debtor has assets abroad or is based outside England and Wales. The process depends on whether there is a reciprocal enforcement regime, an international convention, or if local law must be used. Understanding the available legal routes, procedural requirements, and potential obstacles is critical for effective cross-border enforcement. In England and Wales, CPR Part 74 provides procedural rules for registration and enforcement of foreign judgments and is central to practical steps taken by judgment creditors. Post-Brexit changes mean the Brussels regime no longer applies; the UK relies on the Hague Convention 2005 for certain court judgments and on local law elsewhere. Arbitral awards benefit from robust, global enforcement under the New York Convention.

Key Term: reciprocal enforcement
The process by which judgments from one country are recognised and enforced in another under a statutory or treaty-based regime.

Enforcement under Reciprocal Arrangements

Certain statutes allow for streamlined enforcement of judgments between England and Wales and specific foreign countries. These regimes reduce the need for fresh proceedings by enabling registration of qualifying judgments so that they are enforceable as if they were English judgments.

Statutory Reciprocal Enforcement

The two main statutes are:

• Administration of Justice Act 1920 (AJA 1920): Applies to judgments from many Commonwealth countries and some former territories.
• Foreign Judgments (Reciprocal Enforcement) Act 1933 (FJ(RE)A 1933): Covers judgments from countries with which the UK has made a specific reciprocal arrangement (e.g., parts of Canada, Australia, India, Pakistan, Israel, Jersey, Guernsey, Isle of Man).

To use these regimes, the foreign judgment must be final and for a definite sum of money (not for taxes, fines, or penalties). Injunctions and non-money orders generally fall outside these statutes. Partial satisfaction of the judgment must be disclosed; registration will only cover the unsatisfied balance, with appropriate interest.

Key Term: registration
The process of applying to a court to have a foreign judgment recognised and enforced as if it were a local judgment.

The creditor must apply to register the judgment in the relevant UK court (usually the High Court) within the statutory time limit (typically 12 months for AJA 1920; 6 years for FJ(RE)A 1933). CPR Part 74 sets out procedural requirements: filing an authenticated copy of the foreign judgment, evidence of finality, translations where necessary, and a witness statement covering jurisdictional facts, service, and any payments made.

Once registered, the judgment can be enforced as if it were an English judgment. Available methods include writs of control, third-party debt orders, charging orders, and (where appropriate) attachment of earnings. Registered judgments accrue interest per the applicable English regime after registration; any foreign interest awarded pre-registration can also be included if the statute permits.

Common grounds for refusing registration under these Acts include:

• the foreign court lacked jurisdiction over the defendant in terms recognised by English private international law (e.g., no presence or submission)
• the judgment is not final or conclusive
• the judgment was obtained by fraud
• the judgment is contrary to public policy
• the defendant did not receive proper notice of the proceedings or an opportunity to be heard
• the judgment is inconsistent with an earlier English judgment or a judgment from another recognised court between the same parties on the same issues
• the judgment relates to taxes, fines, or penalties (excluded categories)

Courts may stay execution of the registered judgment if an appeal is pending in the foreign court or if the time to appeal has not expired. The registration order can be set aside if any of the refusal grounds are made out.

Worked Example 1.1

A UK company obtains a final money judgment against a business in Canada. How can the UK company enforce the judgment in England?

Answer:
Canada is covered by the FJ(RE)A 1933. The UK company can apply to the High Court to register the Canadian judgment within 6 years. Once registered, the judgment is enforceable as if it were an English judgment.

Practical tip: gather an authenticated copy of the Canadian judgment, a certificate of finality, evidence of service in the foreign proceedings, details of any part-payments, and translations if needed. File under CPR Part 74 with a witness statement addressing jurisdiction and notice.

Enforcement under International Conventions

Where a treaty or convention exists, enforcement is generally more straightforward because contracting states commit to recognise and enforce qualifying decisions with limited grounds for refusal.

The Hague Convention on Choice of Court Agreements

The Hague Convention 2005 applies to judgments in civil and commercial matters where the parties have agreed an exclusive jurisdiction clause in favour of a court of a contracting state. The UK acceded in its own right with effect from 1 January 2021. The Convention requires member states to recognise and enforce judgments from courts designated in such agreements, subject to limited exceptions.

Matters excluded include, among others, certain consumer and employment contracts, insolvency, family law, and some competition law claims. Recognition can be refused if the exclusive jurisdiction agreement is null and void under the law of the state of the chosen court, the defendant lacked proper notice, the judgment was obtained by fraud, there is a manifest incompatibility with public policy, or the judgment conflicts with an earlier judgment between the same parties.

Practical steps: provide the foreign judgment, the exclusive jurisdiction agreement (or evidence of the clause), proof of service, and translations. Recognition decisions under the Hague Convention are generally swift and do not allow re-litigation of the merits.

Key Term: Hague Convention
An international treaty requiring member states to recognise and enforce judgments from courts chosen in exclusive jurisdiction agreements.

The New York Convention (Arbitral Awards)

The New York Convention 1958 allows for the recognition and enforcement of arbitral awards in over 160 countries. Courts in member states must enforce arbitral awards made in other member states, unless a limited ground for refusal applies (such as public policy or lack of proper notice). The Convention covers both awards made in the territory of another contracting state and, in some cases, non-domestic awards.

Typical grounds for refusal under Article V include:

• incapacity of a party or invalidity of the arbitration agreement
• lack of proper notice of the arbitration or inability to present a case
• the award deals with matters beyond the scope of the submission to arbitration
• the arbitral procedure was not in accordance with the agreement of the parties
• the award is not yet binding or has been set aside/suspended by a competent authority
• the subject matter is not arbitrable under local law
• enforcement would be contrary to public policy

In England and Wales, an award can be enforced via the New York Convention and s.66 Arbitration Act 1996. The enforcing party supplies the duly authenticated original award or a certified copy, and the original arbitration agreement or a certified copy, together with translations where necessary. Courts apply a pro-enforcement bias and will not revisit the merits.

Key Term: New York Convention
An international treaty requiring member states to recognise and enforce foreign arbitral awards, subject to limited defences.

Worked Example 1.2

An English company wins an arbitration award against a company in Singapore. What is the main legal route for enforcement in Singapore?

Answer:
Both the UK and Singapore are parties to the New York Convention. The English company can apply to the Singapore courts for enforcement under the Convention, supplying the award and arbitration agreement.

Worked Example 1.3

Two commercial parties agree an exclusive English jurisdiction clause in their supply contract. The English seller sues in the High Court and obtains judgment against a buyer incorporated in Spain. How is enforcement pursued in Spain?

Answer:
Spain and the UK are parties to the Hague Convention 2005. The seller applies in Spain for recognition and enforcement under the Convention, producing the English judgment and the exclusive jurisdiction clause. The Spanish court recognises the judgment unless a Convention refusal ground applies (e.g., lack of proper notice or manifest public policy incompatibility).

Enforcement in Non-Reciprocal Countries

If there is no applicable statute or convention, enforcement must proceed under the local law of the country where enforcement is sought. This is common in the USA, China, and other jurisdictions lacking reciprocity for court judgments.

Fresh Proceedings

The usual approach is to start a new action in the foreign court, relying on the English judgment as evidence of the debt. The foreign court will consider whether to recognise the judgment, often applying local rules on jurisdiction, finality, and public policy. Many jurisdictions operate an “exequatur” procedure.

Key Term: exequatur
The legal process in some jurisdictions for recognising and enforcing a foreign judgment.

Examples:

• United States: many states have adopted the Uniform Foreign-Country Money Judgments Recognition Act. Recognition generally requires that the foreign court had jurisdiction, due process was observed (proper notice and opportunity to be heard), the judgment is final and conclusive, and no statutory ground for non-recognition applies.
• Brazil: recognition is by the Superior Court of Justice via homologation (exequatur), requiring authenticated copies, proof of service, translations, and demonstration of finality.

Local counsel should be instructed to address filing requirements, authentication/apostille, translations, limitation periods, and any security for costs or bond requirements.

Common Defences to Enforcement

A foreign court may refuse to enforce an English judgment on grounds such as:

• Lack of jurisdiction in the original court
• The judgment is not final or conclusive
• The judgment was obtained by fraud
• The judgment is contrary to public policy
• The defendant did not have proper notice or opportunity to be heard
• The judgment conflicts with an earlier binding judgment between the same parties
• The claim concerns taxes, fines, or penalties (commonly excluded)

Worked Example 1.4

A UK creditor seeks to enforce a judgment in Brazil, which has no reciprocal enforcement treaty with the UK. What is the correct procedure?

Answer:
The UK creditor must start a recognition (exequatur) action in the Brazilian courts, supplying a certified copy of the judgment and evidence of its finality. The Brazilian court will decide whether to recognise and enforce the judgment under local law.

Worked Example 1.5

An English manufacturer obtains a High Court money judgment against a US distributor with assets in New York State. How is enforcement pursued?

Answer:
There is no UK–US reciprocal regime for court judgments. The manufacturer sues on the English judgment in New York Supreme Court under state law (often applying the Uniform Act), presenting the final English judgment, evidence of proper service and due process, and translations where needed. If recognised, the judgment is entered locally and enforced using New York enforcement methods.

Enforcement of Foreign Judgments in England and Wales

Foreign judgments can also be enforced in England and Wales, provided they meet the requirements of the relevant statutory regime or, if none applies, under the common law and CPR Part 74.

• Reciprocal enforcement: Register the judgment under the AJA 1920 or FJ(RE)A 1933. The application is made to the High Court; the court may refuse or set aside registration if a statutory ground is established. Execution may be stayed pending foreign appeals.
• EU/EEA judgments: Post-Brexit, enforcement depends on the Hague Convention (where an exclusive jurisdiction clause applies) or local English common law in other cases. The Lugano Convention does not apply unless and until the UK accedes; at present, enforcement is via Hague 2005 or common law routes.
• Other countries: Bring a fresh action in the English courts, using the foreign judgment as evidence of the debt (common law enforcement). The foreign judgment must be final and conclusive, for a definite sum of money, from a court of competent jurisdiction as understood by English law. Defences include fraud, public policy, and breach of natural justice.

Scotland and Northern Ireland are covered by the Civil Jurisdiction and Judgments Act 1982 (CJJA). A judgment creditor obtains a certificate of money judgment under CPR Part 74; the certificate is then used to register the judgment in the relevant jurisdiction (usually within six months), after which local enforcement methods apply.

Procedural highlights in England and Wales:

• applications follow CPR Part 74
• authenticated copies and translations are required
• evidence by witness statement should address jurisdiction, notice, finality, payments made, and whether any appeal is pending
• where registration is obtained, enforcement proceeds by standard English methods (writ of control, third-party debt order, charging order, etc.)

Interest and costs:

• High Court judgment debts accrue interest at 8% per annum (s.17 Judgments Act 1838)
• County Court interest is governed by s.74 County Courts Act 1984 and orders; for sums under £5,000, interest may not be payable unless contractually agreed
• where enforcing foreign judgments, registration can include foreign interest awarded and costs if the statutory regime permits

Strategic Considerations

Before attempting cross-border enforcement, consider:

• Whether the debtor has assets in the target country
• The costs and time involved in enforcement
• The likelihood of local courts recognising the judgment
• Any limitation periods or procedural requirements (including translation and authentication)
• The risk of defences being raised (jurisdiction, fraud, public policy, lack of notice)
• Whether interim protective relief is available (e.g., freezing injunctions in England, or local asset-freeze measures)
• The availability of information orders to identify assets
• Whether arbitration (and New York Convention enforcement) offers a more predictable route in future contracts
• For England and Wales enforcement, the most efficient method (control of goods, charging orders, third-party debt orders, attachment of earnings) given the debtor’s asset profile
• Potential stays pending appeal and the need to secure assets while appeals are pending

When advised early, inclusion of an exclusive jurisdiction clause that falls within the Hague Convention or an agreement to arbitrate under the New York Convention can materially simplify cross-border enforcement. Where such clauses do not exist, build a strategy around local law recognition and asset tracing, and budget for translation, local counsel, and authentication costs.

Revision Tip

When advising a client, always check for reciprocal enforcement arrangements or conventions before considering local enforcement procedures. Early investigation of the debtor's assets and local legal advice are essential.

Key Point Checklist

This article has covered the following key knowledge points:

• Enforcement of English judgments abroad depends on reciprocal statutes, international conventions, or local law.
• The AJA 1920 and FJ(RE)A 1933 allow registration and enforcement of judgments from certain countries.
• The Hague Convention and New York Convention provide for enforcement of court judgments and arbitral awards, respectively, between member states.
• In non-treaty countries, enforcement usually requires starting a new action in the local court.
• Common defences to enforcement include lack of jurisdiction, public policy, fraud, and lack of notice.
• CPR Part 74 governs registration and enforcement of foreign judgments in England and Wales; CJJA 1982 governs Scotland and Northern Ireland certificates.
• Post-Brexit, EU judgments are enforced via Hague 2005 (exclusive jurisdiction clauses) or common law routes; Lugano does not apply unless the UK accedes.
• Strategic planning and asset investigation are critical before commencing cross-border enforcement.

Key Terms and Concepts

• reciprocal enforcement
• registration
• Hague Convention
• New York Convention
• exequatur