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The common law regime applies to enforcing a judgment obtained in a jurisdiction which is not covered by the European regime or a statutory regime that allows for direct enforcement of a country’s Judgment in England and Wales.
The common law regime applies to jurisdictions such as:
- United States of America
- South America (e.g. Brazil)
- Dubai International Finance Centre
- United Arabic Emirates
- China and Asia (including Japan, Hong Kong and Malaysia)
- Common Wealth of Independent States (e.g. Russia, Belarus, Moldova)
- British Virgin Islands
Some Jurisdictions (e.g. Bahamas, Barbados, Bermuda, British Virgin Islands, Cayman Islands, Jamaica, Malaysia, New Zealand, Nigeria, Singapore, Sri Lanka) may also have the option to enforce their Judgment under the Administration of Justice Act 1920.
See here for the various resources a party can use to check whether the common law regime applies to their country.
Formal requirements for recognition and enforcement of a foreign judgment under the common law regime
Before a judgment may be enforced in England and Wales, a creditor must have the judgment recognised in the courts of England and Wales. A creditor will need to issue a court claim against the debtor based on the Judgment debt. Procedurally speaking, this can be a complicated process and therefore, it is sensible to seek advice from our expert team as soon as possible.
The judgment may be recognised in England and Wales, where the following can be satisfied:
- the person, or entity, against whom the judgment was given was, at the time the proceedings were instituted, present in the jurisdiction of the court that issued the judgment; or
- the person, or entity, against whom the judgment was made, was claimant or counterclaimant, in the proceedings in the court that issued the judgment; or
- the person, or entity, against whom the judgment was made, submitted to the jurisdiction of the Court that issued the judgment, by voluntarily appearing in the proceedings; or
- the person, or entity, against whom the judgment was made, agreed to the jurisdiction of the court that issued the judgment, before the commencement of proceedings.
It is also necessary for the following to be established:
- the judgment must be for a definite sum of money (judgments for specific performance and injunctions are unlikely to be enforceable);
- the judgment must not relate to taxes, penalties or fines (e.g. USA-style punitive damages will not be enforceable in England and Wales);
- the judgment must be final, binding and conclusive (interim judgments are not enforceable);
- the court that issued the Judgment had jurisdiction, when applying the rules the English Courts would apply in such cases;
Process for recognition and enforcement of foreign judgment
Once a party is satisfied that the formal requirements (listed above) are met, a claim can be issued in the courts of England and Wales. The claim will need to be served on the debtor. Where the debtor is based overseas, the court’s permission to serve out of jurisdiction may be necessary.
The debtor must be given the opportunity to file a defence or admission and the timeframe for the debtor to respond is stipulated by the court rules.
Where the debtor fails to acknowledge the claim, or file a defence, it is possible to ask the court to recognise the Judgment in default of the debtors’ response.
Whilst the debtor does file a defence, it may be possible to apply for what is called “summary judgment”. This is an application for recognition of the Judgment without the need for a full trial hearing. This is often a much speedier process and avoids the need for re-examination of the merits leading to Judgment. An application for summary judgment is likely to be successful unless the debtor can raise a valid defence, such as;
- the judgment was obtained by fraudulent means;
- the judgment relates to a fine, penalty or taxes;
- there are grounds of natural injustice relating to the original proceedings in the foreign jurisdiction;
- public policy grounds which support the Judgment not being recognised in the Courts of England and Wales.
Once Judgment has been issued by the courts of England & Wales, a creditor can claim interest on the Judgment amount. The Judgment will need to be served on the debtor and if payment is not made, the creditor will need to enforce the Judgment against the debtor’s assets. The enforcement options available to a creditor are summarised here.
Next steps – How we can help
Enforcement of a foreign judgment can be a lengthy process that can sometimes take as long as 6-12 months. A creditor may wish to consider a Freezing Order / Freezing Injunction over the judgment debtor’s assets, where there is a solid risk that without freezing the debtor’s assets, the debtor may not have assets available to pay the Judgment when registered.
As stated above, this is a complicated process and it is highly recommended that competent legal advice is sought to assist with the enforcement process.
“As credit and collection professionals ourselves, we have to be pretty discerning about the lawyers we retain so it speaks volumes that Francis Wilks & Jones have been our retained solicitors for many years now. Thoroughly professional, the firm has a wide knowledge and experience of the legalities of the debt recovery scene. Sound advice is always available and provides crucial support with some of the more difficult decisions that we have to make.”The Credit Protection Association
Speak to one of our expert team today for your free consultation. We can help you recover your money quickly. Don’t delay