Australia and the United Kingdom may be thousands of miles apart, but that will not prevent judgments issued by Australian courts from being recognised and enforced by UK courts.
Importantly, this means Australian litigants can have their judgments recognised in the United Kingdom without having to incur the cost and stress of re-litigating their case, leaving them free to take advantage of the enforcement procedures available under UK law.
The means by which this can be done is through the Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK), or if that Act does not apply, pursuant to common law principles.
Registration under the Foreign Judgments (Reciprocal Enforcement) Act 1933
In order for an Australian judgment to qualify for registration, the judgment must be:
- the judgment of a ‘recognised court’;
- final and conclusive as between the judgment debtor and the judgment creditor;
- in relation to a sum of money payable but not in respect of taxes, fines or other penalty; and
- given after the coming into force of the Order in Council which made the court a recognised court.
To register the judgment, a judgment creditor must apply to the High Court within six years after the date of the judgment, or where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings.
Where the UK court registers the Australian judgment, the amount will also include the reasonable costs of and incidental to registration, including the costs of obtaining a certified copy of the Australian judgment.
Once registered, the Australian judgment will have the same force and effect as if it were a judgment of a UK court.
Recognition at common law
On occasion, an Australian judgment may not qualify for registration under the Act.
In those circumstances, it is still possible to have the Australian judgment recognised and enforced by a UK court at common law.
To do so, the judgment creditor must commence fresh proceedings in the UK. They can either rely on the Australian judgment as an obligation enforceable as a debt against the judgment creditor, or sue on the original cause of action and rely on the Australian judgment to estop the judgment debtor raising any defence to it. In both cases, the judgment creditor will generally be able to obtain summary judgment on the basis there is no defence.
In order for an Australian judgment to be enforceable in the UK at common law, the Australian judgment must be:
- final and conclusive in the court which pronounced it;
- for a sum of money, but not for taxes, a fine or other penalty; and
- on the merits.
The UK court must also be satisfied that the Australian court exercised jurisdiction on a territorial or consensual basis.
The Australian court will have exercised such jurisdiction if the judgment debtor:
- was present in Australia when the Australian court proceedings were commenced; and
- submitted to the jurisdiction of the Australian court.
Grounds for resisting enforcement
A judgment of an Australian court (registered in the UK either under the Act or at common law) which is final and conclusive on the merits cannot be attacked for error of fact or law by a UK court.
As such, the judgment debtor will be prevented from disputing enforcement of the judgment unless he or she can establish one or more of the following grounds:
- The recognition of the judgment would be manifestly contrary to UK public policy;
- The Australian court acted contrary to natural justice;
- The judgment was obtained by fraud;
- The judgment was obtained in circumstances where service of proceedings was insufficient; or
- The judgment has been discharged or wholly satisfied.
The above is not an exhaustive list, and the UK court may rely on other aspects in support of the exercise of a discretion against enforcement.