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Our specialist team are experienced in enforcing EU Judgments in England and Wales and help overseas claimants recover the money they are owed from defendants based in, or with assets in, England and Wales.
The UK ceased to be a member of the European Union at 11 pm GMT on 31 January 2020. Exit from the European Union impacts the way EU judgments may be recognised and enforced in England and Wales and vice versa. There are transitional provisions dealing with the recognition and enforcement of judgments arising from claims issued before 31 December 2020. We summarise below the different regimes that apply to judgments arising from claims issued in Europe after 31 December 2020.
Different rules apply to judgments arising from claims issued before 31 December 2020.
European regime for enforcement; Post-Brexit
The UK applied to accede to the 2007 Lugano Convention in its own right, in hopes of solving the issues surrounding cross-border enforcement post-Brexit. Unfortunately, the European Commission recommended against the UK’s accession application in May 2021. The European Parliament’s decision is awaited.
Unless the European Council approve the UK’s application to be a member of the Lugano Convention, the following are the regimes for the enforcement of EU / EFTA judgments in the England and Wales.
The Hague Convention on choice of court agreements
The Hague Convention applies to all EU member states and the UK (plus Mexico, Singapore, and Montenegro). The effect of the Hague Convention is that it gives effect to exclusive jurisdiction clauses agreed by parties on or after 1 October 2015 and therefore provides for the recognition and enforcement of any resulting judgment.
The Hague Convention provides a much narrower means of enforcement than compared to the pre-Brexit EU regime, because it excludes areas such as consumer, employment and company law.
The process for recognition and enforcement of an EU Judgment in the England and Wales under the Hague Convention is in similar terms to the Lugano Convention. In essence,
- registration of the Judgment in England and Wales is required and there are limited grounds that the debtor can rely upon to oppose registration;
- a judgment that is required to be recognised and enforced under the Hague Convention has the same force and effect as if it were originally made in the English Courts.
The statutory regime
The two principal instruments under the ‘statutory regime’ are the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933. These statutes apply to the enforcement of judgments from some commonwealth and in principal, to some EU states. There is some doubt as to the frequency of use, in relation to EU states, post-Brexit.
- where the enforcement of an EU Judgment does fall within the statutory regime, a claimant seeking to enforce their judgment may only do so where the judgment is a conclusive and final money judgment;
- the judgment must not be for taxes, a fine or penalty.
Read more about enforcement of judgments under the statutory regime.
The common law regime
If a claimant is unable to enforce an EU judgment in England and Wales under the Hague Convention or the statutory regime, enforcement will be under the common law regime.
As with the statutory regime, the common law applies to judgments which are final, conclusive and for a sum of money (which are not taxes, a fine or penalty). There are also requirements relating to jurisdiction and procedure that a claimant must be certain of. For example,
- the judgment will only be enforceable in England if, according to English law, the Court that issued the judgment had jurisdiction;
- this will normally require that either the parties had consented to the jurisdiction of the originating Court or that the Court had territorial jurisdiction (for example, because the debtor was present in the territory of the Court that issued the judgment).
The process under the common law regime is more onerous. It involves the commencement of a new claim in the courts of England and Wales, whereby the claimant uses the EU judgment to establish a debt – debt being the cause of action. The claimant will need to comply with strict rules relating to limitation and service of the claim.
A judgment that is final and conclusive cannot be defended by a debtor for error of fact or law. However, there are some grounds that a debtor can seek to rely upon to resist enforcement. For example, a debtor can defend enforcement of the judgment where it can establish that the judgment was obtained by fraud, that the foreign court’s procedures breached the rules of natural justice, that enforcement would be contrary to public policy or that the proceedings were brought contrary to a jurisdiction or arbitration agreement.
Read more about enforcement of judgments under the common law.
Next steps – how we can help
A claimant will want to ensure that a defendant has assets in England and Wales, against which judgment can be enforced, before applying to recognise and enforce the judgment in the English Courts.
- we will work with you to assess the defendant’s assets;
- where you are unsure of the defendant’s asset position, we can use our specialist asset tracing contacts to assist to identify possible assets against which judgment can be enforced;
- we help our clients identify the enforcement option that is most likely to result in a financial return.
“FWJ is our law firm of choice and we are delighted with the proactive levels of service and recovery we receive from them. Their detailed understanding of the invoice finance industry combined with their technical expertise and approachability makes them great people to work with.”Sylvia Bradley, director, SJB Associates Limited
“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
Contact our team for further advice regarding enforcement of an EU Judgment in England and Wales. Fast effective advice. Free consultation today.