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Once a judgment has been obtained, the next step is enforcement of that judgment against the debtor. A creditor seeking to enforce a judgment may want to enforce the Judgment in a different jurisdiction to that where the Judgment was obtained.
A party may wish to do so where
- the debtor is situated outside of the jurisdiction in which the judgment was obtained; or
- the debtor has assets in another jurisdiction.
Our specialist team are experienced in enforcing overseas Judgments in England and Wales and help overseas creditors recover the money they are owed.
We will assist our clients to identify the enforcement option most likely to see a financial return. We will work with you to understand the debtor’s assets. If the debtor’s asset position is unclear, we can use our specialist asset tracing contacts to assist to identify possible assets against which judgment can be enforced.
Points to consider
To enforce a foreign Judgment in England and Wales, the Judgment needs to be recognised in the Courts of England and Wales. The process for the English court’s recognising the Judgment varies depending on which jurisdiction the Judgment originates from.
For some jurisdictions, their Judgments will be directly enforceable in England and Wales and therefore, it is simply a case of registering the Judgment in the English Courts. This will be the case where there is legislation which permits the recognition and enforcement of the jurisdictions’ judgments in England and Wales.
For other jurisdictions, where there is no legislation rendering their Judgments directly enforceable in the English Courts, a fresh claim will need to be issued in the High Court of Justice.
Which regime applies?
As a starting point, a party should check which of the following regimes will apply to the judgment they are seeking to enforce:
- Judgments issued in Scotland or Northern Ireland;
- Judgments obtained in Europe before 31 December 2020;
- Judgments obtained in Europe after 31 December 2020;
- Judgments obtained in jurisdictions that can be enforced under the statutory regime, for example Mexico, Singapore or Montenegro and some parts of Europe;
- Judgments from other jurisdictions which need to be registered under the common law regime (e.g. USA, DIFC, Russia, China, Hong Kong) or under the Administration of Justice Act 1920 and statutory instruments (e.g. Bahamas, Bermuda, British Virgin Islands, Jamaica, Cayman Islands, New Zealand)
Debtor’s assets in England and Wales
A party should consider whether to obtain an asset trace via a tracing agent. In simple terms, this is the process of identifying whether the judgment debtor has sufficient assets in England and Wales before a party commences the process of enforcement.
Where a creditor is unsure of specific assets held by the debtor in England, it is sensible to carry out this step before applying to enforce a Judgment in England and Wales. This is likely to increase the chance of a financial return.
Enforcement of a foreign judgment can be a lengthy process (depending on which regime applies) and 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.
It is highly recommended that a party checks the period for enforcing their judgment because where the limitation period has passed, the courts of England and Wales will not, unless a longer period is allowed by the court, register the Judgment. In most cases, limitation will be six years from the date of Judgment.
Where however, a creditor is looking to enforce their Judgment under the Administration of Justice Act, limitation will be twelve months from the date of Judgment unless the court has authorised a longer period. It may be that registration and enforcement could instead be sought under the common law regime and specialist advice should be sought on this.
The limitation period for enforcement will depend on the regime and therefore it is important that a party takes expert advice as soon as possible, after the issue of the Judgment.
The enforcement of foreign judgments is generally a complex area, governed by various regimes. As with most areas of the law, the COVID-19 pandemic has impacted enforcement in most, if not all, jurisdictions. It is therefore important that expert advice is sought as soon as possible.
Our team at FWJ have the expertise to deliver returns for creditors with Judgments issued overseas.
To maximise recovery prospects, we also work with a tried and tested group of professionals to maximise these returns.
- Chris Badger is director of Legal and Compliance at Just and an authorised High Court Enforcement Officer. Chris has over 15 years of experience as a High Court Enforcement Officer. Just regularly assist to trace debtors’ assets and where appropriate, act as a High Court Enforcement Officer under a Writ of Control, once the Judgment is registered in England and Wales. A Writ of Control allows enforcement of the Judgment against a debtor’s removable assets (e.g. vehicles, artwork, jewellery, aircraft. etc).
- Maria Mulla is a barrister at No5 Chambers specialising in Commercial Litigation with an international element. Maria is also a registered practitioner with the DIFC Courts.
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