Enforcing a Judgment

Our brilliant team of experts knows every type of enforcement option available. And can make sure the right one is used to help recover your debts. Don’t settle for second best. Call our expert team today.

Overview

Obtaining judgment against an opposing party is normally the primary objective when issuing a claim.
Whilst the type of judgment can vary, most judgments have a monetary element. As such, a claimant / creditor (i.e. the person owed the money) should, at the outset consider,

• How any judgment obtained will best be enforced.
• Whether the defendant has assets against which judgment can be enforced where the defendant fails to pay voluntarily after the court judgment is awarded.
• In which jurisdiction the defendant’s assets based?

There are various methods of enforcement available – all of which we specialise in at FWJ. Our team can advise you on the enforcement method which is most likely to lead to a quick financial return. It may even be appropriate to use more than one enforcement method (sometimes in tandem) to maximise the chances of a successful recovery.

Where a claimant is unsure of a defendant’s assets, we regularly work with tracing agents who can help establish what assets a defendant has.

Various options available to a Claimant / creditor are set out below. We can advise you on each of these in more detail – just call our friendly team today.

Taking control of goods

Taking control of a defendant’s goods is a popular method amongst claimants because it is usually a relatively quick and low-cost process. This method involves instructing High Court Enforcement Officers to obtain a writ of control (in the High Court) or instructing county court bailiffs to via a warrant of control (in the county court). The writ or warrant of control empowers the agent to take control of and sell a defendant’s goods in order to satisfy the value of the court judgments.

Charging orders

A charging order involves securing the court judgment against the defendant’s property. If the land or property is owned by the judgment debtor jointly with another (for example, the matrimonial home) the court judgment will only be secured against the debtor’s interest in the property. A charging order will usually be registered at the Land Registry in order to restrict a defendant from disposing of their interest in the property without satisfying the debt.

This method requires a court application and where the court is satisfied that the requirements for a charging order have been made, the court will make the order in two stages:

1. Interim charging order.
2. Final charging order.

Where a defendant does not oppose the application, the process is relatively quick. Where however a defendant or co-owner in the property opposes the application, the process will take longer.

Once a final charging order is obtained, it may be possible to apply for an order that the property be sold. Where an order to sale is not obtained, the charging order will remain secured against the property until the debt is paid.

Third party debt orders

This method of enforcement enforces a court judgment against money held by a defendant’s bank or building society account and can be used where the Claimant is aware of a defendant’s bank account details. As with charging orders, this requires an application to the court and is a two-stage process. The order is made in two stages:

1. Interim third party debt order (which freezes money held in the defendant’s bank account)
2. Final third party debt order

Upon receipt of the final order, the court will order the bank or building society pay the monies held in the account to the Claimant pursuant to the third party debt order.

Attachment of earnings order

If a defendant is employed, a claimant can apply for an Attachment of Earning Order. This involves an application to court which, where successful, orders the defendant’s employer to pay an amount of the defendant’s wages directly to the Claimant until the debt is satisfied.

Insolvency proceedings: bankruptcy and company liquidation

This method is available to claimants where the defendant is an individual (if the court judgment is for £5,000 or more) or a company (if the court judgment is for £750 or more).

The process involves submitting a petition to seek a bankruptcy order (for an individual) or a winding up order (for a company).

Once the bankruptcy order or winding up order has been made, the defendant’s assets will be held in trust for all creditors and realised by a trustee in bankruptcy or liquidator. They will deal with the defendant’s estate in accordance with their obligations set out in the Insolvency Act 1986 and the Insolvency Rules 2016. This process may not see a return to the claimant and therefore, careful consideration should be had as to the likely return this process would have for the claimant, given what is known about the defendant’s assets and their debts.

However, it often the threat of insolvency proceedings themselves rather than following them through to the end of the process which gets your money back.

Conclusion – how we can help. We have claimants and creditors successfully enforce court judgments for over two decades. We have collected tens of millions of pounds in for our clients. Let us help you today – whatever your debt size and wherever you are based.

A county court judgment or interim court order for payment of money is enforceable immediately and a judgment creditor can take steps to recover the money due straight away, although it is not unusual for the court to allow the judgment debtor time to pay.

If a judgment debtor does not pay the court judgment debt, it can be enforced. However, in some circumstances, a judgment debtor may appeal against the court judgment, in which case the judgment creditor should check whether a stay of execution has been ordered by the court before taking steps to collect an unpaid judgment debt.

How to recover a judgment debt

A debt due from a judgment debtor can be collected in any of the following ways:

• Taking control of goods.
• Attachment of earnings order.
• Third party debt order.
• Interim and final charging orders.
• Statutory demand.
• Bankruptcy petition (against an individual).
• Winding up petition (against a company).

Whatever your size of debt or financial position, we can work through the best way with you of enforcing a judgment. Getting the right strategy in place at the outset is always vital – it avoids wasting money and also maximises the chances of getting paid.

Is the debtor good for the money?

Before deciding which way is the most appropriate, it can be advisable to make enquiries and investigate what assets a judgment debtor has first. Otherwise you might be wasting money chasing a debt against a debtor who doesn’t have the money to pay it.

Checking out whether a debtor can pay can be done in a number of ways, including.

• Applying for an order that the judgment debtor provides information about his financial affairs.
• By carrying out enquiries using an enquiry agent.
• Checking the insolvency register for details of bankruptcy proceedings.
• Checking information held at Companies House about companies or company directors.
• Undertaking searches at HM Land Registry to find out whether the judgment debtor owns property.

We can help you with wealth assessments of debtors and then decide the best enforcement option for you.

Once we have made enquiries of the judgment debtor’s assets, we can advise you on the best way to collect the moneys due under the county court judgment or CCJ.

How long does a CCJ last?

Unless paid at an earlier date, the county court judgment or CCJ will last 6 years on the Register of Judgments, Fines and orders.

If you pay the debt within 6 years, the CCJ or county court judgment will not be removed from the Register altogether. The Register of Judgments, Fines and orders will however be amended to show that the debt has been paid or “satisfied”.

CCJ after 6 years

This is evidence to lenders and credit reference agencies that the debt is no longer active and should not be a consideration in them making a decision to lend you money.

• After 6 years, if the debt has still not been paid, the CCJ or county court judgment is automatically removed from the Register of Judgments, Fines and orders.
• However, it is likely that during that time, the creditor (the person to whom the money is owed) will have tried other methods of enforcement.

A default judgment is an administrative judgment or order made by the court when a party has not filed a defence or acknowledged service of county court proceedings within the relevant time limit set by the Civil Procedure Rules.

A default judgment is enforceable in the same way as a county court judgment or CCJ that has been determined after a trial. If a default judgment is not paid within 30 days of the date of the order by the county court, details of the default judgment or CCJ will be entered on the county court Register at Registry Trust Limited. 

You have the same enforcement options for a judgment or CCJ made after a final determination by the court. Before deciding which way is the most appropriate, it may be advisable to make enquiries and investigate what assets a Judgment Debtor has first including.

• Applying to court for an order that the Judgment Debtor provides relevant details and information about his financial affairs.
• Using enquiry agents to look in to his / her affairs.
• Checking the insolvency register to see if there is a bankruptcy petition in existence.
• Checking information held at Companies House about companies or company directors.
• Undertaking searches at HM Land Registry to see if the Judgment Debtor owns property.

Once you know that there are assets to enforce against, we can work with you to choose the best way to chase down your debt, including.

• Taking control of goods.
• Third party debt orders.
• Attachment of earnings orders.
• Interim and final charging orders.
• Statutory demands.
• Bankruptcy petitions.
• Winding up petitions.

It is possible to instruct either the County Court Bailiffs or High Court Enforcement Agents (HCEA) to collect your debt on your behalf.

The main difference between the two lies in the type of court judgment being enforced and the level of authority granted to each.

Bailiff enforcement

Bailiffs, also known as County Court Bailiffs, are typically employed by the County Court. They are responsible for enforcing judgments issued by the County Court or the High Court, depending on the specific case. Bailiffs primarily handle lower-value judgments and are authorized to enforce a range of civil debts, such as unpaid council tax, parking fines, or consumer debts. They operate under the authority of the County Court.

The bailiffs will add their own fees to the debt if:

• your debt is less than £600.00, then you can only apply at the county court to instruct the bailiffs.
• the county court debt is between £600.00 and £5,000.00 then you may instruct either the county court Bailiffs or HCEO’s.
• the debt is more than £5,000.00 and not regulated by the Consumer Credit Act, then you must instruct bailiffs at the high court.

Once instructed, bailiffs will normally contact the debtor to give them 7 days to pay the debt. If they fail to do so, the bailiffs then have power to attend the debtor’s address or premises and to either recover payment or seize goods to the value of the debt, including their own fees. Goods that are seized will be subsequently sold at auction and money raised used to pay the money the debtor owes to you.

Bailiffs are only allowed to take items that the debtor solely or jointly owns.

• They cannot take goods that are subject to hire purchase agreements and they cannot take essential household items, such as clothing, bedding, furniture, kitchen equipment etc.
• They are also not allowed to take essential items (up to a value of £1,350.00) which the debtor requires for use in their business or job.

Instructing bailiffs can be a very useful tool in recovering money that is owed to you. If monies are not paid, bailiffs will take items to sell to recover the debt. Remember that these items will be sold at auctions, second hand, so they are unlikely to recover the value the debtor paid for them in the first place.

High Court Enforcement Agents

On the other hand, High Court Enforcement Agents (HCEAs) are authorized to enforce judgments issued by the High Court, including High Court Writs and County Court judgments that have been transferred to the High Court for enforcement. HCEAs have broader powers compared to Bailiffs, allowing them to enforce higher-value judgments and deal with more complex cases. They are authorised under the Tribunals, Courts and Enforcement Act 2007 and operate under the authority of the High Court. Their powers and limitations are set out in the Tribunals, Courts and Enforcement Act 2007 and the Taking Control of Goods Regulations 2013.

Set out below are some of the key points regarding their powers and restrictions

• Entry and search: HCEAs have the power to enter residential and commercial premises to seize goods. They can use reasonable force to gain entry to premises, including breaking open doors or removing locks. However, they cannot force entry into a residential property between 9 p.m. and 6 a.m., except in exceptional circumstances or with a court order.
• Seizure of goods: HCEAs have the authority to seize and remove goods from the premises for sale at auction. They can take control of goods that belong to the debtor and are located on the premises. However, there are certain exempt goods that they cannot seize, such as essential household items, tools of trade, and goods belonging to a third party.
• Controlled goods agreements:: HCEAs can enter into a Controlled Goods Agreement with the debtor, which allows the debtor to keep possession of the goods while under an obligation not to remove or dispose of them. If the debtor fails to comply with the agreement, the HCEA can return and seize the goods.
• Vehicles: HCEAs have the power to clamp and remove vehicles. They can immobilize vehicles by fitting a wheel clamp or removing them for sale at auction. There are specific regulations regarding the release and disposal of vehicles, and the debtor may have the opportunity to pay the outstanding debt to prevent the vehicle from being sold.
• Disposal of seized goods: HCEAs can sell the seized goods at public auction to recover the amount owed. The proceeds of the sale are used to cover the enforcement costs and the judgment debt. If there are any remaining funds after deducting the debt and expenses, they may be returned to the debtor.
• Restrictions and compliance: HCEAs must comply with regulations and guidelines to ensure fair and lawful enforcement. They cannot use excessive force or engage in aggressive behaviour. They are required to provide proper identification, explain the purpose of their visit, and provide information on the debtor’s rights.

The benefit of instructing HCEAs lies in their broader enforcement powers compared to Bailiffs. By using HCEAs, you can access the High Court’s jurisdiction for enforcing judgments, allowing for the enforcement of higher-value judgments and more complex cases. HCEAs have the authority to enter premises, seize goods, and sell them at auction, which can be an effective means of recovering the debt. Their enforcement actions often carry more weight and can result in a quicker resolution compared to other enforcement methods.

Main differences between the Bailiff and the HCEA

The primary differences between instructing a Bailiff and instructing a High Court Enforcement Agent are as follows:

1. Jurisdiction: Bailiffs enforce County Court judgments and some High Court judgments, whereas High Court Enforcement Agents deal with High Court judgments and County Court judgments that have been transferred to the High Court.
2. Authority and powers: High Court Enforcement Agents typically have greater powers than Bailiffs. For example, HCEAs can forcibly enter residential or commercial premises to seize assets, while Bailiffs are generally restricted from entering residential premises without permission (except in specific circumstances).
3. Thresholds and types of cases: Bailiffs generally handle lower-value cases, such as consumer debts and fines, while High Court Enforcement Agents handle higher-value cases and more complex enforcement matters.
4. Certificated Enforcement Agents: Both Bailiffs and High Court Enforcement Agents need to be certified by the courts to carry out their duties. However, the certification process and requirements may differ.

It’s worth noting that the fees and procedures for instructing Bailiffs and High Court Enforcement Agents can vary, and it’s advisable to seek legal advice or consult the relevant court for specific information based on your circumstances.

Taking control of goods may often be the quickest method of enforcement of a county court judgment or CCJ. The procedure is simple and straightforward. A writ or warrant of control is issued by the court office and notice is subsequently given to the judgment debtor by the enforcement officer. In our experience, the threat of enforcement may even be enough, in some cases, to result in payment of a judgment debt.

We have found that both writs and warrants of control are equally successful against individuals or corporate debtors. For example,

• An individual may have a car or other personal items of value which can be seized if payment is not made.
• The corporate debtor may have stock, machinery, office equipment or vehicles which can also be taken and sold.

Taking control of goods can be undertaken alongside other methods of enforcement, although a judgment Creditor needs permission of the court to choose this option at the same time as an attachment of earnings order is in force.

• Before issuing a writ or warrant of control, it is vital to consider:
• Whether the judgment debt is due and has not been paid.

What assets the debtor has, i.e. either goods which can be sold at auction or enough money to meet the judgment debt so as to stop goods being taken and sold. If the judgment is sizeable, unless the debtor has particularly high value goods, charging orders or third party debt orders may be a better method of enforcement.

An attachment of earnings order is a good way to enforce an unpaid judgement – by getting payments from the debtors salary direct. Using an attachment of earnings order to enforcing an unpaid CCJ or court order is a relatively inexpensive and is a popular way to enforce an unpaid money order. An Attachment of Earnings Order (AEO) is a court order that allows for the deduction of money directly from a debtor’s earnings to satisfy a judgment debt.

When can an attachment of earnings order be used?

An application for an attachment of earnings is on a Form N337 and can be made to the county court to enforce an unpaid judgment debt as soon as the debtor fails to make payment under the CCJ or court order and as long as more than £50 remains unpaid. Once an attachment of earnings order is made, the judgment debtor’s involvement is not required, and in some cases where a judgment debtor does not want his or her employer to know about the existence of the judgment debt, the initial application can result in full payment of the judgment debt without further action being necessary.

An attachment of earnings order cannot usually be used at the same time as other methods of enforcement of an unpaid county court judgment without the permission of the county court.

• An attachment of earnings order cannot be used against the following.
• An unemployed or self-employed judgment debtor.
• A corporate or partnership judgment debtor.
• A member of the armed forces.
• A merchant seaman.

Once an attachment of earnings order has been made, the judgment debtor’s employer must make regular deductions as pay as ordered by the court and notify the judgment debtor each time a deduction has been made.

What are the benefits of the attachment of earnings procedure?

Set out below are the benefits of the attachment of earnings order and when it is best used.

1. Steady and regular payments. One of the main advantages of an attachment of earnings order is that it enables a creditor to receive regular and consistent payments. The employer deducts a portion of the debtor’s earnings and sends it directly to the court, which then passes it on to the creditor. This ensures a reliable stream of payments towards the debt.
2. Automatic deductions. Once an attachment of earnings order is in place, the debtor’s employer is legally obliged to deduct the specified amount from the debtor’s earnings and make the payment to the court. This reduces the burden on the creditor to chase the debtor for payments.
3. Simplicity and cost-effectiveness. Obtaining an attachment of earnings order is generally a straightforward process. It does not involve the need for physical enforcement agents or the sale of assets. It can be a cost-effective method, especially for smaller judgment debts where other enforcement methods may not be financially viable.
4. Protection against default. With an attachment of earnings order, the risk of the debtor defaulting on payments is reduced. Since the deductions are made directly from the debtor’s earnings, there is less opportunity for the debtor to avoid or delay payments.

What is the process for obtaining an attachment of earnings order?

The process for obtaining an Attachment of Earnings Order in England is governed by the Civil Procedure Rules (CPR), specifically Part 89. The relevant legislation is primarily the County Courts Act 1984 (Section 33) and the Tribunals, Courts and Enforcement Act 2007 (Part 3).
The procedure (which we can guide you through) involves the following steps:

1. Application. The creditor applies to the court for an Attachment of Earnings Order. This typically requires completing a specific form, providing details about the judgment debt, debtor, and their employment information.
2. Debtor’s financial statement. The court may request the debtor to complete a financial statement to assess their ability to pay and determine the amount to be deducted from their earnings.
3. Court hearing. In some cases, a court hearing may be necessary to consider the application for an attachment of earnings order. The debtor and employer may have an opportunity to provide information or raise objections at the hearing.
4. Issuing the court order. If the court grants the application, an Attachment of Earnings Order is issued. It specifies the amount to be deducted from the debtor’s earnings and provides instructions to the employer.
5. Employer compliance. The order is served on the debtor’s employer, who is then obligated to make the specified deductions from the debtor’s earnings and forward the payments to the court

It’s important to note that there are limits on the amount that can be deducted from the debtor’s earnings, and the court takes into account the debtor’s financial circumstances to ensure a fair and reasonable payment arrangement.

When best to use this type of order?

An Attachment of Earnings Order is best used when the debtor is employed and has a regular income. It is particularly suitable for cases where the debtor has a stable job and the judgment debt is relatively small or moderate. However, if the debtor is self-employed or unemployed, or if the judgment debt is substantial, alternative enforcement methods may be more appropriate. Our team at FWJ can guide you through all the available options.

A Charging Order is a legal mechanism that secures a judgment debt against a debtor’s property or land. It creates an equitable charge, which means that the creditor obtains a legal interest in the property as security for the debt. This is one of the most effective ways to secure and enforce an unpaid county court judgment or CCJ as long as the judgment debtor has sufficient equity in land and is the sole owner.

Overview of Charging Orders and their use

Set out below is and an overview of Charging Orders and their use when it comes to enforcing court judgements:

1. Securing the debt: A Charging Order is typically used when the debtor owns a property or has an interest in land. It allows the creditor to secure the court judgment debt against the property, making it a legal charge. This means that if the property is sold, the creditor will be entitled to recover the amount owed from the proceeds.
2. Priority: Once a Charging Order is registered against the property, it establishes a priority over other unsecured creditors. If the property is sold or re-mortgaged, the creditor with the Charging Order will be among the first to be paid from the proceeds.
3. Enforcement and repayment: While a Charging Order does not automatically force the sale of the property, it can be used as a means of enforcing the judgement debt. The creditor may seek an order for sale, which would require the property to be sold to repay the debt. However, this step requires additional court proceedings.
4. Interim charging order: Before obtaining a final Charging Order, the creditor can apply for an interim Charging Order. This provides temporary protection and prevents the debtor from selling or re-mortgaging the property without the creditor’s knowledge.
5. Conditions and restriction: It is important to note that a Charging Order does not guarantee immediate payment. The debtor can still remain in possession of the property, and the debt may not be repaid until the property is sold. Additionally, if the property is jointly owned, the Charging Order may only apply to the debtor’s share.

How to apply for a Charging Order

The process of applying for a Charging Order to help enforce a court judgment in England is governed by the Civil Procedure Rules (CPR), specifically Part 73. The relevant legislation is primarily the County Courts Act 1984 (Section 2) and the Charging Orders Act 1979.

Obtaining a charging order is a two-stage process.

1. The first step is for the judgment creditor to apply to the county court for an interim charging order.
2. The second step is for the Interim charging order to be made into a final charging order and the third stage is for an application to be made to the county court for an order for Sale. The final charging order will include the amount owed by the creditor under the original county court judgment plus accrued interest and costs.

The application is typically made using Form N379, which is available on the HM Courts and Tribunals Service website.
The application must be supported by evidence, including:

• Details of the judgment debt, such as the amount owed and the date of the court judgment.
• Evidence that the judgment remains unsatisfied or only partially satisfied.
• Evidence of the property or land owned by the debtor, including its address and description.
• Information about any known interests in the property or any existing mortgages.

Once the application is filed with the court, a copy of the application and any supporting evidence must be served on the debtor. This provides the debtor with an opportunity to respond to the application or attend a hearing.

As set out above, the court may grant an interim Charging Order if it is satisfied that there is a good reason to do so. The interim Charging Order provides temporary protection and prevents the debtor from disposing of or dealing with the property until the final Charging Order is obtained.

If the court is satisfied that the requirements for a Charging Order are met, it will grant a final Charging Order. The final Charging Order is registered with the Land Registry, giving notice to any future buyers or mortgage lenders of the charge against the property.

Once the final Charging Order is obtained, the creditor may seek an Order for Sale. This requires further court proceedings to request the sale of the property to satisfy the debt. The court will consider various factors, including the debtor’s circumstances, before deciding whether to grant the Order for Sale.

Charging Orders are commonly used in situations where the debtor owns property and the judgment debt is significant. They provide a means for creditors to secure their debts and increase the likelihood of repayment, particularly when other enforcement methods have been unsuccessful.

In the context of enforcing a court judgment in England, an Order to Obtain Information is a legal mechanism that allows a judgment creditor to obtain detailed information about the judgment debtor’s financial circumstances. It is also commonly referred to as an Oral Examination or an Examination Order. An order to obtain information can be a vey useful tool if the judgment debtor is trying to avoid paying the debt by saying that they don’t have any assets.

How to use an Order to Obtain Information?

1. Purpose of an order to obtain information: An Order to Obtain Information aims to assist the judgment creditor in gathering information about the judgment debtor’s income, assets, and financial situation. It helps the creditor assess the debtor’s ability to repay the court judgment debt and determine the most effective enforcement methods.
2. Making a court application: The application for an Order to Obtain Information is made to the court where the judgment was issued or transferred for enforcement. The relevant provision in the Civil Procedure Rules (CPR) is Part 71, specifically Rule 71.2. The creditor typically submits a written application to the court, detailing the reasons for seeking the order and providing relevant information about the judgment debt and the debtor. Our team at FWJ can help you make the application.
3. Notice to the debtor: Once the court grants the application for an Order to Obtain Information, the court judgment creditor must serve a notice on the debtor, specifying the time, date, and location of the examination. The notice must be served personally or by post at least 14 days before the scheduled examination. At FWJ we have access to excellent process servers – who can make sure the important documents are delivered quickly and cost effectively.
4. The examination process: At the court hearing examination, the judgment debtor is required to provide detailed information about their financial circumstances. The examination is typically conducted by a court officer or a solicitor appointed by the judgment creditor. The debtor is placed under oath and must answer questions truthfully.
5. Information obtained: The examination covers various aspects of the debtor’s finances, including income, employment details, bank accounts, assets, and liabilities. The purpose is to gather comprehensive information to assist the creditor in determining the most appropriate enforcement methods.

What are the key benefits of an Order to Obtain Information

There are a number of benefits of applying for an Order to Obtain Information, including.

• Comprehensive financial information – an Order to Obtain Information provides the judgment creditor with detailed and accurate information about the debtor’s financial circumstances. This information can be crucial in deciding which enforcement methods are most likely to result in successful recovery of the judgment debt. Where it is unclear at the outset what assets a debtor has, an Order to Obtain Information can be very helpful.
• Enhanced enforcement strategy – by obtaining a clear understanding of the debtor’s financial position, the creditor can tailor their enforcement strategy accordingly. In our experience it can help us assess the feasibility of other enforcement methods, such as applying for a Charging Order, instructing bailiffs, or seeking an Attachment of Earnings Order.
• Identifying hidden assets – an Order to Obtain Information can reveal undisclosed or hidden assets owned by the debtor. This information can be used to initiate further enforcement actions, such as seeking a Third-Party Debt Order or pursuing a Possession Order if there are significant assets that can be used to satisfy the judgment debt.
• Understanding income sources – the examination process allows the creditor to identify the debtor’s sources of income, including employment details and other potential income streams. This information can be helpful when considering the suitability of an Attachment of Earnings Order or other income-based enforcement methods.

A statutory demand based on judgment is a powerful and cost effective way to enforce a court judgment. The reason for this is that the statutory demand debt cannot be disputed because it is based on a formal court judgment. The fact that there is a judgment debt removes any issues over the validity of the statutory demand.

What is a statutory demand?

A statutory demand is a formal written notice that can be used by a creditor to demand payment of a debt from either a company or an individual. It serves as a precursor to potential bankruptcy (for an individual) or winding-up proceedings (for a company) and is an effective tool for putting pressure on the debtor to settle the outstanding judgment debt.

What is the procedure for a Statutory Demand?

1. Issuing a statutory demand: The creditor can issue a Statutory Demand by completing the relevant form (Form 6.1 for individuals or Form 4.1 for companies) and serving it on the debtor. The form must contain specific details, including the amount of the debt, its basis, and a warning of the consequences of non-compliance. We would strongly advise getting our team at FWJ to help complete these documents – as getting them wrong will lead to delay and could even mean you get ordered to pay the debtors legal costs. They are easy to get wrong if you are not familiar with them.
2. Timeframe for payment: Once the statutory demand is served, the debtor has 21 days to either pay the debt in full or reach a satisfactory agreement with the creditor to settle the debt. If the debtor fails to respond within the 21-day period, it may result in further legal action.

What happens if payment of a statutory demand is not made?

If payment is not made, it depends on whether you are chasing an individual or a company for payment.

Bankruptcy Proceedings – if the debtor is an individual, the creditor can potentially initiate bankruptcy proceedings if the debt remains unpaid or unresolved after the 21-day period. The creditor can apply to the court for a bankruptcy petition based on the debtor’s failure to comply with the Statutory Demand. We can help you with this process.

Winding-up proceedings – In the case of a company debtor, the creditor can use a statutory Demand as a basis for initiating winding-up proceedings. If the debt remains unpaid or unresolved after the 21-day period, the creditor can apply to the court for a winding-up petition, which may lead to the liquidation of the company.

Other key points to consider when using a statutory demand.

• Serious consequences. Statutory demands are not used lightly, as they carry significant consequences for the debtor if not responded to. Therefore they are a great way for a creditor to signal their intent to pursue further legal action and can therefore lead to payment.
• Minimum debt threshold. There is no minimum debt threshold required for issuing a statutory demand. But bear in mind that to issue a Bankruptcy Petition the minimum requirement is £5,000, whereas for a company debtor, the threshold for a winding up petition is £750. So a canny individual debtor might realise this – and where the debt is below £5000 the statutory demand has less impact.
• Accuracy of information. It is essential to ensure the accuracy of the information included in the statutory demand, including the amount owed and the basis for the debt. Any inaccuracies may weaken the creditor’s position and potentially result in the demand being set aside by the court. We can help avoid these mistakes.

In the context of enforcing a court judgment in England, a bankruptcy petition is a legal document filed by a creditor against an individual debtor to initiate bankruptcy proceedings. It is a significant step in the enforcement process and can be used to help collect the outstanding judgment debt.

However – it is important to remember that it is more the threat of the bankruptcy petition which leads to payment – not actually making an individual bankrupt. As a general rule, once a person is made bankrupt, there is very little prospect of a recovery.

Bankruptcy petitions – issues to consider

Set out below is an explanation of what a bankruptcy petition entails and how it can best be used.

Filing a bankruptcy petition. To start bankruptcy proceedings against an individual debtor, the creditor needs to issue a bankruptcy petition with the court. For this to happen – the creditor must already have served a statutory demand which has expired, or in the case of a Judgment debt – demonstrate firstly that the Bailiff or High Court Enforcement Agent has been unsuccessful at recovering the money.

The bankruptcy petition must contain specific information, including details of the debt owed, evidence of the judgment, and proof that the debtor is unable to pay the debt. The creditor must also demonstrate that they have served a Statutory Demand on the debtor, which remained unpaid or unresolved.

Service of the Bankruptcy Petition. Once the bankruptcy petition is issued, it needs to be personally served by a process server. We have excellent contacts with process servers.

Settlement negotiation. Very few people want to be made bankrupt – so service of the petition usually leads to settlement negotiations – which our team can handle for you. As part of these, we always look to recover our legal costs as part f the settlement – so that there is no cost to you.

Bankruptcy order. If payment is not made and the court is satisfied that everything is correct procedurally, the court will make a bankruptcy order against the debtor. The Bankruptcy Order formally declares the debtor bankrupt and initiates the bankruptcy process. At this stage a trustee in bankruptcy will be appointed over the estate and assets of the individual – and their job is to try and realise assets and make a recovery.

The trustee can either be a the government appointed trustee (known as the Official Receiver) or a licensed insolvency practitioner. The Trustee is responsible for administering the debtor’s assets, distributing them to creditors, and overseeing the bankruptcy process.  Where we consider the individual is concealing or hiding assets – we can help make sure the right Insolvency Practitioner is appointed to track down any concealed assets. The proceeds from the sale of assets are distributed among the creditors according to the rules of bankruptcy priority.

Other points to consider

Filing a bankruptcy petition against an individual debtor is a serious step in the enforcement process. It can have significant consequences for the debtor’s financial situation, credit rating, and personal life. It is for this reason they can be a great way of getting a debtors attention.

The threshold for bankruptcy in England is currently a debt of £5,000 or more. The debt must be unsecured and not subject to any ongoing repayment arrangements.

How we can help

Our team has dealt with 100’s bankruptcy petitions over the years – and successfully used them to recover outstanding judgment debts.  Contact us today and we can help you too.

In the context of enforcing a court judgment in England, a winding-up petition is a legal document filed by a creditor against a company debtor to initiate winding-up proceedings. It is a significant step in the enforcement process and can be used to help collect an outstanding court judgment.

However, the key with a winding up petition is to use it more as a threat than to follow through and wind up the company.  If the company is wound up and forced into liquidation, it is usually the case that no recovery for creditors will be made.

The winding up process

We cover the subject of winding up petitions in more detail elsewhere on our website – in our FWJ Takeaway on winding up petitions.

However, in summary, set out below is an explanation of what a winding-up petition entails and how it can be used

1. Filing a winding-up petition at court

To start the winding-up proceedings against a company debtor, the creditor files a winding-up petition with the court using its online system. The petition must contain specific information, including details of the debt owed, evidence of the judgment, and proof that the company is unable to pay the debt.

Normally a creditor might demonstrate that they have served a statutory demand on the company, which remained unpaid or unresolved.  However, with a judgment debt, there is no need – as the debt cannot be disputed. Therefore, you can go straight for a winding up petition with much less risk.

2. Issuing of the winding up petition

Once the winding-up petition is filed, the court will review it and if it is in order, it will issue the petition and send it back to the creditor. The court will put a formal claim number on the document and set a date when the petition is due back in court.

3. Service of the petition

We strongly recommend the petition is served by an experience process server at the company’s registered office.  We can make sure this happens.

4. Settlement negotiations

Once the petition is served, the debtor will often want to negotiate a settlement and avoid the adverse publicity a petition can cause. We are very experienced in handling these negotiations and protecting our client’s interests

5. Advertisement of the Petition

If settlement cannot be reached, the petition has to be publicly advertised in the London Gazette as otherwise the court will not wind the company up. The advertisement serves to notify the public and other creditors that a winding-up petition has been filed against the company.

6. Hearing and Winding-Up Order

Following the advertisement, the hearing of the petition will take place in court – at which point the order to wind up can be made. For this to happen, certain documents must be filed at court in advance of the hearing within specified time periods. Creditors will also need court representation for a winding up order to be requested. We can arrange all these formalities.

If the court is satisfied that the company is insolvent and there are grounds for winding it up, it can issue a Winding-Up Order. The Winding-Up Order formally declares the company insolvent and initiates the winding-up process.

7. Appointment of a liquidator

Once a winding up order is made, an Official Receiver or a licensed insolvency practitioner is appointed as the Liquidator to oversee the winding-up process. The Liquidator’s role is to collect and realise the company’s assets, settle its liabilities, and distribute the remaining funds to creditors.

The Liquidator assesses the company’s assets, liquidates them, and converts them into funds. The funds generated are distributed among the company’s creditors in accordance with the priorities set out in insolvency laws.

How we can help. We have recovered millions of pounds over the years through the effective use of winding up petitions.  Our expert team can guide you through the process – and make sure it is the right solution for you.

Once a court judgment has been obtained, the next step is enforcement of that judgment against the debtor. A creditor seeking to enforce a court 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.
• The debtor has assets in another jurisdiction.

How to get a foreign judgement recognised in England and Wales?

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.

1. Judgments issued in Scotland or Northern Ireland.
2. Judgments obtained in Europe before 31st December 2020.
3. Judgments obtained in Europe after 31st December 2020.
4. Judgments obtained in jurisdictions that can be enforced under the statutory regime, for example Mexico, Singapore or Montenegro and some parts of Europe.
5. 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

It is always sensible to work out if the debtor you are chasing has assets in England & Wales which you can enforce over. Using tracing and wealth assessment agents who can work out if the debtor has any assets to pay the judgment debt, identifying whether the judgment debtor has sufficient assets in England and Wales before commencing enforcement action can save a lot of wasted money.

How long is the foreign judgment enforcement process?

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.

What is the limitation period?

It is highly recommended that you check 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 when the limitation period has passed. In most cases, limitation will be six years from the date of Judgment pursuant to the Limitation Act 1980.

Where 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.

What is the Common Law Regime?

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
• Canada
• 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.

What are the 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. This will mean issuing 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 an expert in this area of law.

The court judgment may be recognised in England and Wales, where the following can be satisfied:

• The person, or entity, against whom the court judgment was given was, at the time the proceedings were instituted, present in the jurisdiction of the court that issued the judgment.
• The person, or entity, against whom the court judgment was made, was claimant or counterclaimant, in the proceedings in the court that issued the judgment.
• The person, or entity, against whom the court judgment was made, submitted to the jurisdiction of the Court that issued the judgment, by voluntarily appearing in the proceedings.
• 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 court judgment must be for a definite sum of money (judgments for specific performance and injunctions are unlikely to be enforceable).
• The court judgment must not relate to taxes, penalties or fines (e.g. USA-style punitive damages will not be enforceable in England and Wales).
• The court 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.

What is the 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” pursuant to part 24 of the Civil Procedure Rules. 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.

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 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 legal advice is sought to assist with the enforcement process.

What is the statutory framework?

There is a statutory framework available for overseas claimants seeking to enforce a judgment in the UK. The framework is available to a number of commonwealth countries, including:

• Barbados.
• The Bahamas.
• Jamaica.
• New Zealand.
• Singapore.

A full list of countries is set out in Reciprocal Enforcement of Judgments (Administration of Justice Act 1920, Part II) (Amendment) Order 1985:

It is also available to EU member states and following Brexit, it is possible that there will be an increase in EU claimants utilising the process under the statutory regime to enforce judgments in England and Wales.
There are two primary statutes which make up the statutory regime. These are summarised below.

Administration of Justice Act 1920 (“AJA 1920”)

Where the Administration of Justice Act 1920 applies, the claimant must make an application (following the process set out in the Civil Procedure Rules) to have the court judgment registered in the English courts. The application must be made within 12 months of the court judgment, or such longer period as may be permitted by the court.

The debtor does not require notice of the application. If the application for registration is granted, the claimant can then enforce the court judgment as though it had been issued in the Courts of England and Wales.

• The Court may allow for registration to be made after 12 months where for example, the Claimant’s delay in enforcing the judgment is because of assurances that the defendant would pay and these assurances were accepted in good faith.
• We would recommend however, making the application to register the judgment as soon as possible to avoid being time-barred.

The definition of judgment is set out in Section 12 of AJA 1920 and includes “any judgment or order given or made by a court in any civil proceedings”.

The Administration of Justice Act 1920 applies to judgments for a sum of money only (excluding taxes, fines or penalties). The AJA 1920 does apply to arbitration awards but excludes non-monetary or interim orders. It also stipulates that any judgment must be final and conclusive.

The onus is on a defendant wishing to challenge registration and whilst the English court has discretion over enforcement and will only permit registration where it deems it just, the defendant will need to make a formal application to challenge registration citing reasonable grounds for challenge. Examples of the defences the Court will consider are:

• A failure to serve the defendant with the original claim in circumstances where the defendant failed to appear.
• A judgment that has been obtained by fraud.
• A pending appeal is outstanding in the originating Court.
• Enforcement would be contrary to public policy.

Where an application is made to challenge registration, the application will need to be determined by the Court before a Claimant can enforce the judgment.

Foreign Judgments (Reciprocal Enforcement) Act 1933.

The process under the Foreign Judgements (Reciprocal Enforcement Act 1933 is similar to the process under the The Administration of Justice Act 1920 . It also requires a claimant to register the foreign judgment in the English court before it can be enforced in the Courts of England and Wales.

• A key difference between the statutes is that the claimant has a period of 6 years from judgment to apply for registration under Foreign Judgements (Reciprocal Enforcement Act 1933.
• ‘Judgment’ is defined at Section 11 of FJA 1993 as a judgment or order in any civil or criminal proceedings that is for a sum of money (for example, compensation or damages).

As with recognition under the The Administration of Justice Act 1920, the onus is on a defendant to apply to the Court to challenge registration of a judgment.

The UK’s 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.

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 UK.

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 UK under the Hague Convention is in similar terms to the Lugano Convention. In essence, registration of the Judgment in the UK 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.

The common law regime

If a claimant is unable to enforce an EU judgment in the UK 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.

Next Steps

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.

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 court 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 before 31 December 2020.

European Regime for Enforcement; Pre-Brexit

Article 67 of the Withdrawal Agreement provides for recognition and enforcement of court judgments, arising from claims issued in the EU before 31 December 2020, under the various European regimes. Therefore, relevant judgments obtained in EU members states will remain enforceable in England and Wales, and vice versa.

The EU regime is contained in the four main instruments set out below. There are further EU instruments for specific countries, which are not covered here.

Recast Brussels Regulation (Council Regulation (EU) 1215/2012)

The Recast Brussels Regulation (Council Regulation (EU) 1215/2012) is the primary instrument for enforcing in England and Wales, an EU judgment arising from proceedings commenced prior to 31 December 2020. This is because it provides a more straightforward and less expensive process and dispenses with some of the requirements under the other European regimes, such as the need to obtain a declaration of enforceability under the 2001 Brussels Regulation and the Lugano Convention.

The Recast Brussels Regulation applies to court judgments issued in legal proceedings instituted on or after 10 January 2015. The Recast Brussels Regulation has direct effect in the UK and in all EU member states meaning that an EU court judgement is automatically enforceable in England and Wales without the need to register the judgement first.

The staged process is as follows:

• The claimant obtains a certificate from the originating court in the format set out in Annex 1 of the regulation. This certificate certifies that the judgment is enforceable and provides details of the court judgment, including the judgment amount and interest and costs payable.
• The claimant serves a copy of the certificate, together with the judgment (and any certified translation), on the defendant.
• The claimant may then enforce the judgment as though it were obtained from a court in England and Wales.

A defendant can apply for refusal of enforcement where there are grounds to do so. The grounds are set out in Article 45 of the Recast Brussels Regulation and are narrow in scope. The claimant will not be able to enforce the judgment until the application has been determined by the court.

2001 Brussels Regulation (Council Regulation (EC) 44/2001)

The 2001 Brussels Regulation applies to the enforcement of EU judgments, arising from proceedings commenced between 1 March 2002 and 10 January 2015, in England and Wales. A claimant is required to obtain a declaration of enforceability before the judgment can be enforced in England and Wales.
The staged process is as follows:

1. The claimant applies to register the court judgment. This application will generally be made ‘without notice’. If the application is granted, the claimant obtains a registration order;
2. The claimant serves a copy of the registration order on the judgment debtor;
3. The claimant may then enforce the judgment as thought it were obtained from a court in England and Wales.
   A defendant can apply for refusal of enforcement where there are grounds to do so. The grounds are set out in Articles 34-35 of the 2001 Brussels Regulation and are narrow in scope. The claimant will not be able to enforce the judgment until the application has been determined by the court.

2007 Lugano Convention

The 2007 Lugano Convention applies to the enforcement, in the Courts of England and Wales, of judgments from Iceland, Norway and Switzerland. It applies to proceedings initiated before 31 December 2020. The three stage process for enforcement under the Lugano Convention is similar to that summarised above under the 2001 Brussels Regulation.

A defendant can apply for refusal of enforcement where there are grounds to do so. The grounds are narrow in scope. The claimant will not be able to enforce the court judgment until the application has been determined by the court.

European Enforcement Order (EEO) Regulation (Regulation (EC) No 805/2004)

The European Enforcement Order regulation applies only to uncontested civil or commercial claims. “Uncontested” means that either:

• The defendant has admitted the claim / or concluded the claim by a settlement approved by the originating court.
• The claim was uncontested by the debtor during the course of the court proceedings.
• The claim was uncontested by the debtor at trial (for example, the defendant originally defended the claim but did not attend the trial hearing).

To obtain a European Enforcement Order, the claimant must present an application to the originating court (the Court that issued the original judgment) and satisfy specific conditions. Providing that the Claimant can satisfy the same, the claimant will be provided with a sealed copy of the judgment and an European Enforcement Order certificate. There is no requirement for the claimant to serve the European Enforcement Order certificate on the defendant.

The claimant must then apply to the Courts of England and Wales to enforce the European Enforcement Order.

Enforceable Judgments

The 2001 Brussels Regulation, 2007 Lugano Convention and Recast Brussels Regulation have similar provisions relating to the type of judgments that a claimant may enforce and the proceedings those judgments relate to. All three instruments define “judgment” as “any judgment given by a court or tribunal… whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determine of costs or expenses”. These instruments extend to all civil and commercial matters (excluding revenue, customs, or administrative matters).

It is worth noting that the Recast Brussels Regulation also extends to certain interim orders, such as injunctions.

The process for enforcing court judgments obtained in Scotland in England and Wales is set out at Rules 74.14-74.18 of the Civil Procedure Rules (“CPR”) and sections 18, 19 and Schedules 6 and 7 to the Civil Jurisdiction and Judgments Act 1982 (“CJJA 1982”). The procedure distinguishes between money and non-money judgments but the process is largely the same.

• A creditor must first obtain a sealed certificate from the originating court, detailing the judgment debt due. This is achieved by the creditor making an application for the certificate, which much be accompanied by a notarised affidavit and by paying the application fee.
• On receipt of the certificate from the originating court, a creditor must then take steps to register the judgment / decree with the High Court of England and Wales and must do so within six months of the date of issue of the certificate (CPR 74.15 (2))
• Upon registration of the judgment / decree with the Courts of England & Wales, the creditor may enforce the judgment as if it were obtained in England and Wales.

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 English and Welsh 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.
• 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.
• 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.
• 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.
• 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.

A creditor who has secured a Judgment from the courts in China and wants to enforce the Judgment in the courts of England and Wales applying the Common Law Regime. This situation might arise when a Judgment Debtor resides or has assets in England and Wales.

What is the Common Law Regime?

A jurisdiction will fall under Common Law Regime where there is no act or treaty in place for reciprocal or direct enforcement; meaning there is a specific act in place which allows a jurisdiction to enforce in England and Wales and vice versa. As there is no such act or treaty in place between China, Asia and England and Wales, the Common Law Regime will apply. The Common Law Regime is a body of law which is made up of judicial decisions or ‘case law’. 

What needs to be established before a Judgment may be enforced in England and Wales?

The starting point for a Judgment Creditor seeking to enforce a judgment is that the foreign judgment needs to be recognized by the English Courts.

To have the Judgment recognised, the Judgment Creditor is required to issue a fresh claim in the England and Wales courts against the debtor based on the Judgment debt. Procedurally speaking, this can be a complicated process and therefore, it is sensible to seek expert legal advice as soon as possible.

There are several conditions which need to be satisfied in order for the Judgment to be recognised.

Conditions to having the Judgment recognised

The following conditions must be satisfied before a Judgment may be recognised in England and Wales:

1. The person, or entity, against whom the judgment was given was, at the time the proceedings were instituted, present in the foreign jurisdiction; or
2. The person, or entity, against whom the judgment was made, was claimant or counterclaimant, in the original proceedings in foreign jurisdiction; or
3. The person, or entity, against whom the judgment was made, submitted to the foreign jurisdiction, by voluntarily appearing in the proceedings; or
4. The person, or entity, against whom the judgment was made, agreed to the jurisdiction of the foreign Court, before the commencement of proceedings.

In addition to the above conditions, the foreign Judgment must also meet a specific criteria, as follows:

• The judgment must be for a definite sum of money. This means that judgments for specific performance and injunctions are unlikely to be enforceable.
• The judgment must not relate to taxes, penalties or fines.
• The judgment must be final, binding and conclusive, meaning that interim judgments are not enforceable.
• The foreign court had jurisdiction to make the original Judgment.

Starting the Process

As mentioned above, the Judgment Creditor is required to issue an entirely new claim in the English courts. This means the preparation of a claim form and particulars of clam (and securing any certified translations) the basis of which will be the original Judgment. There are several practical legal points to consider at the commencement of this process, such as ensuring proper service of the new claim, which makes it sensible to seek expert legal advice. For example, a Judgment Creditor may need to consider whether the Court’s permission is required to serve claim documents on the Judgment Debtor outside of the Jurisdiction and proper thought should be given as to when this permission is sought.  

Defences to the claim

It is possible for the Judgment debtor to defend a claim to have the judgment recognised and enforced in England and Wales. However, the grounds for doing so are very narrow and generally speaking, the English Courts will not look behind the original judgment of foreign Court. These include:

• The judgment was obtained by fraudulent means;
• The judgment relates to a fine, penalty or taxes;
• There are major procedural defects with the original claim or proceedings;
• There are grounds of natural injustice relating to the original proceedings, such as the Judgment debtor being prevented from making submissions in the original proceedings or other human rights issues; or
• Public policy grounds which support the Judgment not being recognised in the Courts of England and Wales.

Where a defence is raised by the Judgment debtor, advice should be sought to assess if a valid defence has been raised.

Summary Judgment

If there are no legitimate objections being raised by the Judgment Debtor, and where the new claim has set out cogently why the foreign judgment meets requisite criteria, the Judgment Creditor may ask the Court to make an order for Summary Judgment. This means the Court is invited to make an order without the need for a trial, on the basis that the Judgment Debtor’s defence(s) are unlikely to succeed or that there is no other reason why the matter should be determined at a trial.

Once Judgment has been issued by the Courts of England & Wales, a Judgment 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 Judgment Creditor will need to enforce the Judgment against the debtor’s assets.

Enforcement process in England and Wales

There are several enforcement options available to a Judgment Creditor once the new claim has been concluded and the English Court has made an order. Such options include:

• Take control of goods via High Court Enforcement Agents or County Court Bailiffs
• Charging Orders over the debtor’s property / land
• Orders for the possession and sale of land
• Orders requiring a Judgment Debtor to provide information about their assets
• Third party debt orders
• Attachment of earnings orders
• Orders relating to Insolvency proceedings

At the outset of this process, it may also be sensible for a Judgment Creditor to take advice on the merits of proceeding with the same. This may include due diligence surrounding the prospects of recoverability from the debtor by carrying out an asset search or solvency check.

Enforcement of a Judgment obtained in China can be a lengthy process that can sometimes take as long as 6-12 months. A Judgment Creditor may wish to consider a Freezing Order / Freezing Injunction over the judgment debtor’s assets, where there is a risk that without freezing the debtor’s assets, the debtor may not have assets available to pay the Judgment when registered. A Freezing Order / Freezing Injunction is an interim remedy which prohibits a debtor from dissipating their assets and preserves the same until final judgment can be obtained. 

Unfortunately for US creditors, there is no reciprocal agreement which allows the mutual recognition and enforcement of US judgments in the UK, or vice versa. Therefore, a creditor seeking to enforce a US judgment can only do so using the common law regime.

What is the common law regime?

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.

What are the conditions?

To be enforceable, there are several conditions that the US judgment is required to meet.

The judgment must be final and conclusive, meaning that the judgment must not be subject to appeal.

The judgment must be for a definite sum of money, meaning it does not apply to injunctions.  A US judgment which relates to taxes, fines or any other penalty will not be recognised.

The US court where the US judgment was obtained, must have had jurisdiction to hear the claim on a territorial or consensual basis. This means that the debtor:

• Must have been present in the US at the time of the original US claim being issued; or
• The debtor has submitted to the jurisdiction of the US court in some other way, such as by turning up to the proceedings or responding to the claim.

The US judgment must not have been obtained by fraud.

The US judgment must not be in contravention of public policy or the European Convention on Human Rights.

The US judgment must not have been made contrary to natural justice, for example the debtor was not given the opportunity to defend itself in the proceedings.

What is the process?

The Creditor is required to issue a fresh claim in the court of England and Wales. The US judgment will form the basis of the claim, or the cause of action. The creditor will need to observe rules surrounding limitation, issue, and service of the claim, which are set out in the Civil Procedure Rules.

There is often an opportunity for the creditor (who will become the claimant) to avoid long, drawn out proceedings by applying for summary judgment on the basis that the debtor (who will become the defendant) has no real prospect of successfully defending the claim. The court in England and Wales will not look behind the US judgment, subject to confirmation that all the conditions (listed above) have been met.

What is the process for enforcement in England and Wales?

There are various enforcement methods at the disposal of the judgment creditor. It’s prudent for any creditor to seek guidance and evaluate which enforcement method(s) are most likely to yield a recovery.

These enforcement methods include; 

• Seizing goods through high court enforcement agents or county court bailiffs (e.g., artwork, vehicles, jewellery, fine goods such as handbags, watches, machinery, etc.)
• Imposing charging orders on the debtor’s property/land
• Pursuing third-party debtor orders (aimed at withdrawing funds from the debtor’s bank account)
• Implementing attachment of earnings orders (aimed at deducting from the debtor’s salary)
• Initiating insolvency proceedings

For further details on the diverse enforcement methods, you can refer to our website.

Freezing Orders

As a creditor, if you’re apprehensive about the debtor potentially dissipating their assets, you might want to assess the possibility of obtaining a freezing order or injunction.

As India is party to the bilateral treaty for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters 1994 with England and Wales, there is reciprocity of treatment as regards the enforcement of judgments obtained in recognised courts in India in the courts of Great Britain and Northern Ireland. This means that if you are owed money by someone living in or with assets in the UK, you can use the statutory regime to enforce your judgment in our courts (and vice versa).

What is the Statutory Regime? 

There are two primary statutes which make up the statutory regime. These are the Administration of Justice Act 1920 (“AJA 1920”) and the Foreign Judgments (Reciprocal Enforcement) Act 1933 (“FJA 1933”).

The Reciprocal Enforcement of Foreign Judgments (India) Order 1958 (the “Order”) extended the position under the FJA 1933 to India and sets out the following list of specific Indian courts from which judgments will be recognised in the UK:

• The Supreme Court
• All High Courts and Judicial Commissioners’ Courts
• All District Courts
• All other Courts whose civil jurisdiction is subject to no pecuniary limit provided that the Judgment sought to be registered under the said Act is sealed with a seal showing that the jurisdiction of the Courts is subject to no pecuniary limit

What type of judgments can be enforced?

The term ‘Judgment’ is formally defined at Section 11 of the FJA 1933 as a judgment or order in any civil or criminal proceedings. The Order sets out specific criteria that must be met by any Indian judgment in order that it may be enforced in the UK:

• it must be final and conclusive, meaning that interim judgments or judgments that are subject to an outstanding appeal are not enforceable
• it requires payment of a sum of money, which is not a sum payable in respect of taxes, fines or penalties but can include compensation
• it has been given by one of the specified, recognised courts under the Order which has jurisdiction on a territorial or consensual basis

Once a creditor is sure that the Indian Judgment meets the requisite conditions, they can begin the process for enforcement of the judgment in the UK.

What is the process?

The process is relatively straightforward but requires the creditor to make an application to the English court to register the Judgment.

Under the FJA 1933, a creditor with an Indian judgment will have a period of 6 years from the date of the judgement to apply to register the judgment in the English courts.

There are specific rules which apply to the process for registration (set out in the Civil

Procedure Rules), which includes rules regarding what evidence a creditor will need to file with the English court in support of their application.

The English court has a discretion as to whether to grant permission to register the Indian judgment. If permission is granted, the creditor will prepare the necessary order for registration and serve a copy of the same and supporting evidence, including the original judgment on the judgment debtor.

Can the debtor object to the application?

Yes, the debtor may challenge the creditors application to register the Indian judgment in the English Court. To do so, the debtor must make a formal application (again, following the applicable rules and procedures set out in the Civil Procedure Rules), and must cite reasonable ground to challenge the registration. These include the following, by way of example:

• That the creditor has failed to serve the debtor (in time, correctly or at all) with the original claim form which resulted in the Indian judgment
• The Indian judgment was obtained by fraud
• The Indian judgment is subject to appeal
• The debtor can show enforcement of the Indian judgment would be contrary to public policy
• The Indian judgment is irreconcilable with another judgment

Any objection by the debtor must be dealt with before the creditor can take steps to enforce the judgment.

What happens once registration is complete?

The judgment creditor is now entitled to enforce the Indian judgment as though it was originally obtained in the courts of England & Wales (see below).

What if the Indian Judgment is not from a recognised Court?

If the Indian judgment originates from a Court not recognised under the FJA 1933, the creditor must resort to the common law process, which bears some resemblance to the FJA 1933.

Similar conditions for enforcement apply for the common law regime, being:

• The judgment must be final and conclusive.
• The judgment must pertain to a debt or a final sum of money.
• The Court’s jurisdiction must be establish territorially or consensually.

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 Indian 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 debtor will have similar defences available to them under the common law regime as they do under the FJA 1933, being:

• The judgment was obtained through fraud.
• It contravenes English public policy or the European Convention on Human Rights.
• It breaches the principles of natural justice, such as the debtor lacking a fair chance to respond to the claim.
• It conflicts with a prior judgment on the same matter and between identical parties.
• It involves multiple damages.
• The proceedings were initiated in contravention of a jurisdiction or arbitration agreement.

What is the process for enforcement in England & Wales?

There are various methods of enforcement which may be utilised by the judgment creditor. It is sensible for any creditor to take advice and assess which of the enforcement options available are most likely to result in a recovery. The methods of enforcement include:

• Taking control of goods via high court enforcement agents or county court bailiffs (for example, artwork, vehicles, jewellery, plant and machinery. etc)
• Charging orders over the debtor’s property / land
• Third party debtor orders (this seeks a deduction from the debtor’s bank account)
• Attachment of earnings orders (this seeks a deduction from the debtor’s salary)
• Insolvency proceedings

You can read more about the different methods of enforcement on our website.

Freezing Orders

If you are a creditor and you are concerned that there may be a risk of the debtor dissipating their assets, you may wish to consider whether you obtain a freezing order/injunction. You can read more about freezing orders on our website.

Can we help you?

Our team of experts are here to assist you with the process of enforcing an Indian judgment. If you are owed monies by a debtor in India, please contract our team to discuss the ways we can help you get paid.

In the case of Berhad v Frazer-Nash Research Ltd & Anor [2018] EWHC 2970 (QB) (06 November 2018), the Court decided that judgments of the High Court in Malaya can be registered in the Queen’s Bench Division pursuant to Section 9 of the Administration of Justice Act 1920 (‘AJA 1920’).

This means that Malaysian Judgments can be enforced in England and Wales using the statutory regime as if they were obtained in the English Court.

What is the Statutory Regime? 

There are two primary statutes which make up the statutory regime. These are the Administration of Justice Act 1920 (“AJA 1920”) and the Foreign Judgments (Reciprocal Enforcement) Act 1933 (“FJA 1933”).

The AJA 1920 has bilateral effect for judgments obtained in Malaysia. This means that that there is reciprocal enforcement of judgments and awards in the UK and the jurisdictions covered by the AJA 1920, such as Malaysia.

For a judgment to be enforceable under the AJA 1920 regime, it must have originated from a court which has jurisdiction over the matter which the judgment was concerning. For the AJA 1920, this requires the debtor to be an ordinary resident, or to have carried on business in the originating jurisdiction, in this case, Malaysia.

What type of judgments can be enforced?

The term ‘Judgment’ is formally defined at Section 12 of the AJA 1920 as a judgment or order in any civil proceedings, whereby any sum of money is payable. Arbitration awards are also enforceable but freezing orders for instance, even where they relate to a sum of money, are not.

There is specific criteria that must be met for a Malaysian judgment to be enforceable in the UK:

• it must be final and conclusive, meaning that interim judgments or judgments that are subject to an outstanding appeal are not enforceable
• it requires payment of a sum of money. Unlike the FJA 1933 and the common law regime, the AJA 1920 does not specifically exclude judgments relating to taxes, fines or penalties but it is thought that the court’s discretion would likely exclude them
• it has been given by one of the specified, recognised courts under the Order which has jurisdiction on a territorial or consensual basis

Once a creditor is sure that the Malaysian Judgment meets the requisite conditions, they can begin the process for enforcement of the judgment in the UK.

What is the process?

The process is relatively straightforward but requires the creditor to make an application to the English court to register the Judgment. Under the AJA 1920, a creditor with a Malaysian judgment will have a period of 12 months from the date of the judgment to apply to register the judgment in the English courts, though this period may be extended with permission of the Court. The application for registration must also be made without notice to the debtor.There are specific rules which apply to the process for registration (set out in the Civil Procedure Rules), which includes rules regarding what evidence a creditor will need to file with the English court in support of their application.

The English court has a discretion as to whether to grant permission to register the Malaysian judgment. If permission is granted, the creditor will prepare the necessary order for registration and serve a copy of the same and supporting evidence, including the original judgment on the judgment debtor.

Can the application for registration be refused?

Yes, the application may be refused by the Court in certain circumstances, which are set out at Section 9 of the AJA 1920:

• the original court acted without jurisdiction
• the judgment debtor was not an ordinary resident, or has not carried on business in the originating jurisdiction and did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court
• the judgment debtor was not served correctly and did not appear or there was some other procedural irregularity where the debtor was unaware of the proceedings and unable to represent themselves
• the judgment was obtained by fraud
• the judgment debtor satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment
• the judgment is contrary to public policy or for some other similar reason

The judgment debtor may object to the registration based on one or more of the grounds above. Any objection by the debtor must be dealt with before the creditor can take steps to enforce the judgment.

What happens once registration is complete?

The judgment creditor is now entitled to enforce the Malaysian judgment as though it was originally obtained in the courts of England & Wales.

What is the process for enforcement in England & Wales?

There are various methods of enforcement which may be utilised by the judgment creditor. It is sensible for any creditor to take advice and assess which of the enforcement options available are most likely to result in a recovery. The methods of enforcement include:

• Taking control of goods via high court enforcement agents or county court bailiffs (for example, artwork, vehicles, jewellery, plant and machinery. etc)
• Charging orders over the debtor’s property / land
• Third party debtor orders (this seeks a deduction from the debtor’s bank account)
• Attachment of earnings orders (this seeks a deduction from the debtor’s salary)
• Insolvency proceedings

You can read more about the different methods of enforcement on our website.

Freezing Orders

If you are a creditor and you are concerned that there may be a risk of the debtor dissipating their assets, you may wish to consider whether you obtain a freezing order/injunction.

How a creditor who has obtained a Judgment in Irish Courts goes about enforcing that judgment in England and Wales depends on whether the claim was issued pre or post Brexit. This is because Ireland is a member of the European Union. 

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 Ireland pre and post Brexit.

European Regime for Enforcement Pre-Brexit

Article 67 of the Withdrawal Agreement provides for recognition and enforcement of judgments, arising from claims issued in the EU before 31 December 2020, under the various European regimes.

This means that Irish judgments will remain enforceable in England and Wales and vice versa.

There are four main instruments which apply. These are:

1. Recast Brussels Regulation (Council Regulation (EU) 1215/2012)
2. 2001 Brussels Regulation (Council Regulation (EC) 44/2001)
3. 2007 Lugano Convention
4. European Enforcement Order (EEO) Regulation (Regulation (EC) No 805/2004)

The Recast Brussels Regulation (Council Regulation (EU) 1215/2012) is the primary instrument for enforcing an EU judgment in England and Wales where the claim commenced pre-Brexit. This is because it provides a more straightforward and less expensive process and dispenses with some of the requirements under the other European regimes.

The Recast Brussels Regulation applies to court judgments issued in legal proceedings instituted on or after 10 January 2015. The Recast Brussels Regulation has direct effect in the UK and in all EU member states, including Ireland, meaning that an EU court judgement is automatically enforceable in England and Wales without the need to register the judgement first.

We only summarise the process under the Recast Brussels Regulation for the purpose of this guide. For more information on the processes under the 2001 Brussels Regulation (Council Regulation (EC) 44/2001), the 2007 Lugano Convention and the European Enforcement Order (EEO) Regulation (Regulation (EC) No 805/2004), please click here.

What is the Process?

The staged process is as follows:

1. The claimant obtains a certificate from the originating Irish court in the format set out in Annex 1 of the regulation. This certificate certifies that the judgment is enforceable and provides details of the court judgment, including the judgment amount and interest and costs payable.
2. The claimant serves a copy of the certificate, together with the judgment (and any certified translation), on the defendant.
3. The claimant may then enforce the judgment as though it were obtained from a court in England and Wales.

A defendant can apply for refusal of enforcement where there are grounds to do so. The grounds are set out in Article 45 of the Recast Brussels Regulation and are narrow in scope. The claimant will not be able to enforce the judgment until the application has been determined by the court.

Enforceable Judgments

The 2001 Brussels Regulation, 2007 Lugano Convention and Recast Brussels Regulation have similar provisions relating to the type of judgments that a claimant may enforce and the proceedings those judgments relate to.

All three instruments define “judgment” as

“any judgment given by a court or tribunal… whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determine of costs or expenses”

These instruments extend to all civil and commercial matters (excluding revenue, customs, or administrative matters).

It is worth noting that the Recast Brussels Regulation also extends to certain interim orders, such as injunctions.

European Regime for Enforcement Post-Brexit

Where the post-Brexit regime applies, the creditor will have resort to one of the following instruments to enforce the Irish judgment in England and Wales:

1. 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 Irish / EU Judgment in the UK under the Hague Convention is in similar terms to the Lugano Convention. In essence, registration of the Judgment in the UK 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.

2. 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.

3. The Common Law Regime

If a claimant is unable to enforce the judgment in the UK 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.

There is no reciprocal agreement facilitating the recognition and enforcement of judgments between Hong Kong and the UK. Consequently, creditors seeking to enforce judgments from Hong Kong in the UK must rely on the common law regime.

Understanding the common law regime

The common law regime pertains to enforcing judgments from jurisdictions not covered by the European or statutory regimes permitting direct enforcement in England and Wales.

Conditions for enforcement

For a judgment from Hong Kong to be enforceable in the UK, it must meet several criteria.

The judgment must be final and conclusive, meaning that the judgment must not be subject to appeal.

The judgment must be for a definite sum of money, meaning it does not apply to injunctions.  A judgment which relates to taxes, fines or any other penalty will not be recognised.

The court in Hong Kong where the judgment was obtained, must have had jurisdiction to hear the claim on a territorial or consensual basis. This means that the debtor:

• Must have been present in Hong Kong at the time of the original claim being issued; or
• The debtor has submitted to the jurisdiction of the court in Hong Kong in some other way, such as by turning up to the proceedings or responding to the claim.

The judgment must not have been obtained by fraud.

The judgment must not be in contravention of public policy or the European Convention on Human Rights.

The judgment must not have been made contrary to natural justice, for example the debtor was not given the opportunity to defend itself in the proceedings.

What is the process to get the judgement recognised?

The Creditor is required to issue a fresh claim in the court of England and Wales. The judgment will form the basis of the claim, or the cause of action. The creditor will need to observe rules surrounding limitation, issue, and service of the claim, which are set out in the Civil Procedure Rules.

There is often an opportunity for the creditor (who will become the claimant) to avoid long, drawn out proceedings by applying for summary judgment on the basis that the debtor (who will become the defendant) has no real prospect of successfully defending the claim. The court in England and Wales will not look behind the judgment, subject to confirmation that all the conditions (listed above) have been met.

What is the process for enforcement in England and Wales?

There are various enforcement methods at the disposal of the judgment creditor. It’s prudent for any creditor to seek guidance and evaluate which enforcement method(s) are most likely to yield a recovery.

These enforcement methods include; 

• Seizing goods through high court enforcement agents or county court bailiffs (e.g., artwork, vehicles, jewellery, fine goods such as handbags, watches, machinery, etc.)
• Imposing charging orders on the debtor’s property/land
• Pursuing third-party debtor orders (aimed at withdrawing funds from the debtor’s bank account)
• Implementing attachment of earnings orders (aimed at deducting from the debtor’s salary)
• Initiating insolvency proceedings

For further details on the diverse enforcement methods, you can refer to our website.

Freezing Orders

As a creditor, if you’re apprehensive about the debtor potentially dissipating their assets, you might want to assess the possibility of obtaining a freezing order or injunction.

There is no reciprocal agreement which allows the mutual recognition and enforcement of Kenyan judgments in the UK, or vice versa. This does not however mean that a creditor from Kenya is completely blocked from enforcing their judgment in England. To do so, the creditor will need to issue an application under the common law regime.  

What is the common law regime?

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. There are no bilateral treaties or mutual conventions in force between Kenya and England, so the common law regime applies.

What are the conditions for recognition of a Kenyan judgement?

To be enforceable, there are several conditions that the judgment is required to meet.

The judgment must be final and conclusive, meaning that the judgment must not be subject to appeal.

The judgment must be for a definite sum of money, meaning it does not apply to injunctions.  A judgment which relates to taxes, fines or any other penalty will not be recognised.

The court in Kenya where the judgment was obtained, must have had jurisdiction to hear the claim on a territorial or consensual basis. This means that the debtor:

• Must have been present in Kenya at the time of the original claim being issued; or
• The debtor has submitted to the jurisdiction of the Kenyan court in some other way, such as by turning up to the proceedings or responding to the claim.

The judgment must not have been obtained by fraud.

The judgment must not be in contravention of public policy or the European Convention on Human Rights.

The judgment must not have been made contrary to natural justice, for example the debtor was not given the opportunity to defend itself in the proceedings.

What is the process to have a Kenyan judgement recognised?

The Creditor is required to issue a fresh claim in the court of England and Wales. The judgment will form the basis of the claim, or the cause of action. The creditor will need to observe rules surrounding limitation, issue, and service of the claim, which are set out in the Civil Procedure Rules.

There is often an opportunity for the creditor (who will become the claimant) to avoid long, drawn out proceedings by applying for summary judgment on the basis that the debtor (who will become the defendant) has no real prospect of successfully defending the claim. The court in England and Wales will not look behind the judgment, subject to confirmation that all the conditions (listed above) have been met.

What is the process for enforcement in England and Wales?

There are various enforcement methods at the disposal of the judgment creditor. It’s prudent for any creditor to seek guidance and evaluate which enforcement method(s) are most likely to yield a recovery.

These enforcement methods include; 

• Seizing goods through high court enforcement agents or county court bailiffs (e.g., artwork, vehicles, jewellery, fine goods such as handbags, watches, machinery, etc.)
• Imposing charging orders on the debtor’s property/land
• Pursuing third-party debtor orders (aimed at withdrawing funds from the debtor’s bank account)
• Implementing attachment of earnings orders (aimed at deducting from the debtor’s salary)
• Initiating insolvency proceedings

For further details on the diverse enforcement methods, you can refer to our website.

Freezing Orders

As a creditor, if you’re apprehensive about the debtor potentially dissipating their assets, you might want to assess the possibility of obtaining a freezing order or injunction.

Francis Wilks & Jones solicitors have been advising Claimants, Defendants and other related parties on freezing order claims since 2002.

Further information on freezing orders is available on our website.

Can we help you? 

Our team of specialists is available to aid you in navigating the enforcement of a judgment obtained in Kenya. If you’re owed money by a debtor, please reach out to our team to explore how we can assist you with recovery.

There is no reciprocal agreement which allows the mutual recognition and enforcement of South African judgments in the UK, or vice versa. This does not however mean that a creditor from South Africa is completely blocked from enforcing their judgment in England. To do so, the creditor will need to issue an application under the common law regime.  

What is the common law regime?

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. There are no bilateral treaties or mutual conventions in force between South Africa and England, so the common law regime applies.

What are the conditions to get a South African recognised in England and Wales?

To be enforceable, there are several conditions that the judgment is required to meet.

The judgment must be final and conclusive, meaning that the judgment must not be subject to appeal.

The judgment must be for a definite sum of money, meaning it does not apply to injunctions.  A judgment which relates to taxes, fines or any other penalty will not be recognised.

The court in South Africa where the judgment was obtained, must have had jurisdiction to hear the claim on a territorial or consensual basis. This means that the debtor:

• Must have been present in South Africa at the time of the original claim being issued; or
• The debtor has submitted to the jurisdiction of the South African court in some other way, such as by turning up to the proceedings or responding to the claim.

The judgment must not have been obtained by fraud.

The judgment must not be in contravention of public policy or the European Convention on Human Rights.

The judgment must not have been made contrary to natural justice, for example the debtor was not given the opportunity to defend itself in the proceedings.

What is the process to enforce the judgement?

The Creditor is required to issue a fresh claim in the court of England and Wales. The judgment will form the basis of the claim, or the cause of action. The creditor will need to observe rules surrounding limitation, issue, and service of the claim, which are set out in the Civil Procedure Rules.

There is often an opportunity for the creditor (who will become the claimant) to avoid long, drawn out proceedings by applying for summary judgment on the basis that the debtor (who will become the defendant) has no real prospect of successfully defending the claim. The court in England and Wales will not look behind the judgment, subject to confirmation that all the conditions (listed above) have been met.

What is the process for enforcement in England and Wales?

There are various enforcement methods at the disposal of the judgment creditor. It’s prudent for any creditor to seek guidance and evaluate which enforcement method(s) are most likely to yield a recovery.

These enforcement methods include; 

• Seizing goods through high court enforcement agents or county court bailiffs (e.g., artwork, vehicles, jewellery, fine goods such as handbags, watches, machinery, etc.)
• Imposing charging orders on the debtor’s property/land
• Pursuing third-party debtor orders (aimed at withdrawing funds from the debtor’s bank account)
• Implementing attachment of earnings orders (aimed at deducting from the debtor’s salary)
• Initiating insolvency proceedings

Freezing Orders

As a creditor, if you’re apprehensive about the debtor potentially dissipating their assets, you might want to assess the possibility of obtaining a freezing order or injunction.

This guide sets out the process for creditors who have obtained a judgment in Singapore and want to enforce against the debtor’s assets in the UK. The UK and Singapore are parties to the Hague Convention on Choice of Court Agreements (Hague Convention); this means that under the convention, judgments must be recognised and enforced in other contracting states.

In addition to the Hague Convention, judgments from Singapore may also be enforced in the UK using the regime under the Administration of Justice Act 1920.

Process under the Hague Convention

The Hague Convention applies to agreements that give exclusive jurisdiction to the Courts of a participating state. The Hague Convention was ratified by Singapore on 2 June 2016. Therefore a court selected by the parties must hear the case, any other court before which proceedings are brought must decline to hear them, and the judgment given by the chosen court must be recognised and enforced in other contracting states.

What is a judgment under the Hague Convention?

A judgment is defined widely under Article 4 (1) of the Hague Convention and includes any decision on the merits, including default judgments and non-monetary judgments. The definition does not include procedural rulings and interim orders.

For a judgment to be recognised in a contracting state it must be legally binding and operation in the state it was originally obtained. In other words, a judgment must be legally binding in Singapore (i.e. it is not subject to appeal) to be recognised and enforced in the UK; the judgment must not be contrary to public policy and must not have been obtained by fraud.

What is the procedure?

A creditor may apply under the Hague Convention for the recognition and declaration of enforceability of the Judgment in the UK. Any court that receives an application for recognition or enforcement is to act expeditiously (Article 14, Hague Convention). In other words, the court must use the fastest, most efficient procedure available.

The creditor will need to produce:

1. A complete and certified copy of the judgment, together with any evidence that the judgment has effect / is enforceable in Singapore
2. The exclusive choice of court agreement (or a certified copy / evidence of its existence)
3. In the case of a judgment obtained by default, evidence that the debtor was notified of the claim, it was served correctly, with sufficient time and the debtor had an opportunity to respond

Process under the Administration of Justice Act 1920

The Administration of Justice Act 1920 (AJA 1920) provides a statutory framework available to creditors who have obtained a judgment in Singapore and want to enforce in the UK.

Where the AJA 1920 applies, the creditor must make an application (following the process set out in the Civil Procedure Rules) to have the court judgment registered in the English courts. The application must be made within 12 months of the court judgment, or such longer period as may be permitted by the court.

The debtor does not require notice of the application. If the application for registration is granted, the creditor can then enforce the judgment as though it had been issued in the Courts of England and Wales.

The Court may allow for registration to be made after 12 months in limited circumstances (it is discretionary). For example, where the creditor’s delay in enforcing the judgment is because of assurances that the debtor would pay and these assurances were accepted in good faith.

We would recommend however, making the application to register the judgment as soon as possible to avoid being time-barred.

What is a judgment under the AJA 1920?

The definition of judgment is set out in Section 12 of AJA 1920 and includes “any judgment or order given or made by a court in any civil proceedings”.

The Administration of Justice Act 1920 applies to judgments for a sum of money only (excluding taxes, fines or penalties). The AJA 1920 does apply to arbitration awards but excludes non-monetary or interim orders. It also stipulates that any judgment must be final and conclusive.

Can an application for recognition and enforcement be defended?

Under the AJA 1920, the burden is on a defendant wishing to challenge registration and whilst the English court has discretion over enforcement and will only permit registration where it deems it just, the defendant will need to make a formal application to challenge registration citing reasonable grounds for challenge. Examples of the defences the Court will consider are:

• A failure to serve the defendant with the original claim in circumstances where the defendant failed to appear.
• A judgment that has been obtained by fraud.
• A pending appeal is outstanding in the originating Court.
• Enforcement would be contrary to public policy.

Where an application is made to challenge registration, the application will need to be determined by the Court before a Claimant can enforce the judgment.

Under the Hague Convention, there are limited grounds for opposing or the court refusing to enforce a judgment. Strictly speaking the Court will not look behind the original decision but will refuse to recognise or enforce a judgment if it considers one of the following grounds apply:

• that the choice of court agreement was null and void and/or that a party to the agreement lacked the capacity to conclude the same
• the debtor was not notified of the claim in a sufficient time / at all or in a way that would bring it to the debtor’s attention
• the judgment was obtained by fraud
• recognition or enforcement would be contrary to public policy
• there is inconsistencies between former judgments pertaining to the same parties

What is the process for enforcement in England and Wales?

There are various enforcement methods at the disposal of the judgment creditor. It’s prudent for any creditor to seek guidance and evaluate which enforcement method(s) are most likely to yield a recovery.

These enforcement methods include; 

• Seizing goods through high court enforcement agents or county court bailiffs (e.g., artwork, vehicles, jewellery, fine goods such as handbags, watches, machinery, etc.)
• Imposing charging orders on the debtor’s property/land
• Pursuing third-party debtor orders (aimed at withdrawing funds from the debtor’s bank account)
• Implementing attachment of earnings orders (aimed at deducting from the debtor’s salary)
• Initiating insolvency proceedings

For further details on the diverse enforcement methods, you can refer to our website.

Freezing Orders

As a creditor, if you’re apprehensive about the debtor potentially dissipating their assets, you might want to assess the possibility of obtaining a freezing order or injunction.

The Administration of Justice Act 1920 (“AJA 1920”) allows beneficiaries of judgments given in certain overseas jurisdictions the opportunity to register and enforce those judgments in the courts of England and Wales. Since 4 May 1923, the act has applied to New Zealand, as outlined in the Reciprocal Enforcement of Judgments (Administration of Justice Act 1920, Part II) (Consolidation) Order 1984.

This means that if you are owed money, pursuant to a judgment of the New Zealand courts, by someone living in or with assets in the UK, you can use this statutory regime to enforce your foreign judgment in domestic courts (and vice versa).

What type of judgments can be enforced?

The term ‘Judgment’ is formally defined at Section 12 of the AJA 1920 as any judgment or order given or made by a court in any civil proceedings whereby any sum of money is made payable, and includes an award in arbitration proceedings if the award has become enforceable in the same manner as a judgment given by a court in that place.

The Court of Appeal has since held that AJA 1920 applies only to judgments given by a court that had adjudicated on the merits of the underlying claim before handing down the judgment. This means that any judgment obtained in default of a defence, for example, cannot be enforced via AJA 1920.

AJA 1920 does not specifically provide that judgments for taxes, fines or other penalties cannot be registered. However, such types of overseas judgments cannot be enforced in England and Wales via common law or alternative statutory methods of enforcement. There is little case law on the topic, but it is likely that the courts would decline to enforce such judgments AJA 1920 as a matter of the court’s discretion or as being contrary to public policy.

Once a creditor is confident that the New Zealand judgment is enforceable under AJA 1920, they can begin the process of enforcing the judgment in the UK.

What is the process?

The process is relatively straightforward but requires the creditor to make an application to the English court to register the Judgment.

Under the AJA 1920, a creditor with a judgment from New Zealand will have a period of 12 months from the date of the judgment to apply to register the judgment in the English courts, though this period may be extended with permission of the Court.

The application for registration must also be made without notice to the debtor. There are specific rules which apply to the process for registration (set out in the Civil Procedure Rules), which includes rules regarding what evidence a creditor will need to file with the English court in support of their application.

The English court has a discretion as to whether to grant permission to register the New Zealand judgment. If permission is granted, the creditor will prepare the necessary order for registration and serve a copy of the same and supporting evidence, including the original judgment on the judgment debtor.

Can the debtor object to the application?

Yes, the application may be refused by the Court in certain circumstances, which are set out at Section 9 of the AJA 1920:

• the original court acted without jurisdiction
• the judgment debtor was not an ordinary resident, or has not carried on business in the originating jurisdiction and did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court
• the judgment debtor was not served correctly and did not appear or there was some other procedural irregularity where the debtor was unaware of the proceedings and unable to represent themselves
• the judgment was obtained by fraud
• the judgment debtor satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment
• the judgment is contrary to public policy or for some other similar reason

The judgment debtor may object to the registration based on one or more of the grounds above. Any objection by the debtor must be dealt with before the creditor can take steps to enforce the judgment.

What happens once registration is complete?

The judgment creditor is now entitled to enforce the New Zealand judgment as though it was originally obtained in the courts of England & Wales.

What is the process for enforcement in England & Wales?

There are various methods of enforcement which may be utilised by the judgment creditor. It is sensible for any creditor to take advice and assess which of the enforcement options available are most likely to result in a recovery. The methods of enforcement include:

• Taking control of goods via high court enforcement agents or county court bailiffs (for example, artwork, vehicles, jewellery, plant and machinery. etc)
• Charging orders over the debtor’s property / land
• Third party debtor orders (this seeks a deduction from the debtor’s bank account)
• Attachment of earnings orders (this seeks a deduction from the debtor’s salary)
• Insolvency proceedings

Freezing Orders

If you are a creditor and you are concerned that there may be a risk of the debtor dissipating their assets, you may wish to consider whether you obtain a freezing order/injunction. You can read more about freezing orders on our website.

A foreign judgment must be recognised in the UK before it can be enforced. As a commonwealth country, judgments handed down in Pakistan can be recognised by the courts of England and Wales using a statutory regime. This means that if you are owed money by someone living in or with assets in the UK, you can use the statutory regime to enforce your Pakistani judgment in the courts of England and Wales (and vice versa). There are two primary statutes which make up the statutory regime. These are the Administration of Justice Act 1920 (“AJA 1920”) and the Foreign Judgments (Reciprocal Enforcement) Act 1933 (“FJA 1933”). In the case of judgments handed down in Pakistan, the FJA 1933 applies.

What type of judgments can be enforced?

The term ‘Judgment’ is formally defined at s.11 of the FJA 1933 as a judgment or order in any civil or criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party. The FJA 1933 further provides that in order to enforce a foreign judgment under this regime, the judgment must:

• be final and conclusive, meaning that interim judgments or judgments that are subject to an outstanding appeal are not enforceable.

• require payment of a sum of money, which is not a sum payable in respect of taxes, fines or penalties but can include compensation.
• have been handed down by a recognised court.

Once a creditor is sure that the Pakistani Judgment meets the requisite conditions, they can begin the process for enforcement of the judgment in the UK.

What is the process?

The process is relatively straightforward but requires the creditor to make an application to the English court to register the Judgment.

Under the FJA 1933, a creditor with a Pakistani judgment will have a period of 6 years from the date of the judgement to apply to register the judgment in the English courts.

There are specific rules which apply to the process for registration (set out in the Civil Procedure Rules), which includes rules regarding what evidence a creditor will need to file with the English court in support of their application.

The English court has a discretion as to whether to grant permission to register the Pakistani judgment. If permission is granted, the creditor will prepare the necessary order for registration and serve a copy of the same and supporting evidence, including the original judgment on the judgment debtor.

Can the debtor object to the application?

Yes, the debtor may challenge the creditors application to register the Pakistani judgment in the English Court. To do so, the debtor must make a formal application (again, following the applicable rules and procedures set out in the Civil Procedure Rules), and must cite reasonable ground to challenge the registration. These include the following, by way of example:

• That the creditor has failed to serve the debtor (in time, correctly or at all) with the original claim form which resulted in the Pakistani judgment
• The Pakistani judgment was obtained by fraud
• The Pakistani judgment is subject to appeal
• The debtor can show enforcement of the Pakistani judgment would be contrary to public policy
• The Pakistani judgment is irreconcilable with another judgment

Any objection by the debtor must be dealt with before the creditor can take steps to enforce the judgment.

What happens once registration is complete?

The judgment creditor is now entitled to enforce the Pakistani judgment as though it was originally obtained in the courts of England & Wales (see below).

What if the Pakistani Judgment is not from a recognised Court?

If the Pakistani judgment originates from a Court not recognised under the FJA 1933, the creditor must resort to the common law process, which bears some resemblance to the FJA 1933.

Similar conditions for enforcement apply for the common law regime, being:

• The judgment must be final and conclusive.
• The judgment must pertain to a debt or a final sum of money.
• The Court’s jurisdiction must be establish territorially or consensually.

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 Pakistani 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 debtor will have similar defences available to them under the common law regime as they do under the FJA 1933, being:

• The judgment was obtained through fraud.
• It contravenes English public policy or the European Convention on Human Rights.
• It breaches the principles of natural justice, such as the debtor lacking a fair chance to respond to the claim.
• It conflicts with a prior judgment on the same matter and between identical parties.
• It involves multiple damages.
• The proceedings were initiated in contravention of a jurisdiction or arbitration agreement.

What is the process for enforcement in England & Wales?

There are various methods of enforcement which may be utilised by the judgment creditor. It is sensible for any creditor to take advice and assess which of the enforcement options available are most likely to result in a recovery. The methods of enforcement include:

• Taking control of goods via high court enforcement agents or county court bailiffs (for example, artwork, vehicles, jewellery, plant and machinery. etc)
• Charging orders over the debtor’s property / land
• Third party debtor orders (this seeks a deduction from the debtor’s bank account)
• Attachment of earnings orders (this seeks a deduction from the debtor’s salary)
• Insolvency proceedings

You can read more about the different methods of enforcement on our website.

Freezing Orders

If you are a creditor and you are concerned that there may be a risk of the debtor dissipating their assets, you may wish to consider whether you obtain a freezing order/injunction.

A Creditor, who has obtained a Judgment in the Dubai International Finance Centre and the United Arab Emirates (hereafter referred to as ‘DIFC’ and UAE’ respectively), can enforce the Judgment in England and Wales under the Common Law Regime.

What is the Common Law Regime?

In general terms, the Common Law Regime is a body of law which is made up of case law or ‘judge made law’. The Common Law Regime applies to the enforcement a judgments obtained in a jurisdictions, such as the UAE and DIFC Courts, which are not covered by other regimes (such as the statutory regime) which allow for direct enforcement of a Country’s Judgment in England and Wales. 

What is required before a judgment may be enforced in England and Wales?

Before a Judgment obtained in the UEA or DIFC Courts may be enforced in England and Wales, a Judgment Creditor must have the Judgment recognised in the Courts of England and Wales.

In order to have the Judgment recognised, the Judgment Creditor must issue a Court claim in England and Wales against the UK debtor based on the Judgment debt. Procedurally speaking, this can be a complicated process and therefore, it is sensible to seek expert legal advice as soon as possible.

What conditions are there to having the judgment recognised?

The Judgment may be recognised in England and Wales if the Judgment Creditor can satisfy the following conditions:

1. The person, or entity, against whom the judgment was given was, at the time the proceedings were instituted, present in the UAE / DIFC; Or
2. The person, or entity, against whom the judgment was made, was claimant or counterclaimant, in the UAE / DIFC proceedings; Or
3. The person, or entity, against whom the judgment was made, submitted to the UAE / DIFC jurisdiction, by voluntarily appearing in the proceedings; Or
4. The person, or entity, against whom the judgment was made, agreed to the jurisdiction of the UAE / DIFC Court, before the commencement of proceedings.

What type of judgments can be enforced?

There are specific requirements relating to the type of Judgment which may be enforced under the Common Law Regime.

• The judgment must be for a definite sum of money. This means that judgments for specific performance and injunctions are unlikely to be enforceable.
• The judgment must not relate to taxes, penalties or.
• The judgment must be final, binding and conclusive, meaning that interim judgments are not enforceable.

The Judgment Creditor must also be sure that the UAE / DIFC Court had jurisdiction to make the judgment.

What is the process?

Once the Judgment Creditor 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.

Can a debtor defend the claim?

Yes, a debtor can admit or defend a claim to have the judgment recognised and enforced in England and Wales, but only on limited grounds. These include:

• 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; or
• Public policy grounds which support the Judgment not being recognised in the Courts of England and Wales.

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 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 (see above).

Once Judgment has been issued by the Courts of England & Wales, a Judgment 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 Judgment Creditor will need to enforce the Judgment against the debtor’s assets.

What is the process for enforcement in England and Wales?

The Judgment Creditor is entitled to enforce the Judgment as though it was originally obtained in England and Wales. This means that the creditor can apply the various methods of enforcement available and the one most likely to see a financial return. The methods of enforcement include:

• Take control of goods via High Court Enforcement Agents or County Court Bailiffs
• Charging Orders over the debtor’s property / land
• Third party debt orders
• Attachment of earnings orders
• Insolvency proceedings

You can read about the different methods of enforcement in more detail on our website.

Other points to consider

Enforcement of a Judgment obtained in the UAE or DIFC courts can be a lengthy process that can sometimes take as long as 6-12 months. A Judgment 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. A Freezing Order / Freezing Injunction is an interim remedy which prohibits a debtor from dissipating their assets and preserves the same until final judgment can be obtained. You can read more about the process for obtaining a Freezing Order / Freezing Injunction on our website.

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. 

How a creditor who has obtained a Judgment in Germany goes about enforcing that judgment in England and Wales depends on whether the claim was issued pre or post Brexit. This is because Germany is a member of the European Union. 

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 Germany pre and post Brexit.

European Regime for Enforcement; Pre-Brexit

Article 67 of the Withdrawal Agreement provides for recognition and enforcement of judgments, arising from claims issued in the EU before 31 December 2020, under the various European regimes.

This means that German judgments will remain enforceable in England and Wales and vice versa.

There are four main instruments which apply. These are:

1. Recast Brussels Regulation (Council Regulation (EU) 1215/2012)
2. 2001 Brussels Regulation (Council Regulation (EC) 44/2001)
3. 2007 Lugano Convention
4. European Enforcement Order (EEO) Regulation (Regulation (EC) No 805/2004)

The Recast Brussels Regulation (Council Regulation (EU) 1215/2012) is the primary instrument for enforcing an EU judgment in England and Wales where the claim commenced pre-Brexit. This is because it provides a more straightforward and less expensive process and dispenses with some of the requirements under the other European regimes.

The Recast Brussels Regulation applies to court judgments issued in legal proceedings instituted on or after 10 January 2015. The Recast Brussels Regulation has direct effect in the UK and in all EU member states, including Germany, meaning that an EU court judgement is automatically enforceable in England and Wales without the need to register the judgement first.

We only summarise the process under the Recast Brussels Regulation for the purpose of this guide. For more information on the processes under the 2001 Brussels Regulation (Council Regulation (EC) 44/2001), the 2007 Lugano Convention and the European Enforcement Order (EEO) Regulation (Regulation (EC) No 805/2004), visit our guide on the enforcement of judgments under the EU regime. 

What is the Process?

The staged process is as follows:

The claimant obtains a certificate from the originating German court in the format set out in Annex 1 of the regulation. This certificate certifies that the judgment is enforceable and provides details of the court judgment, including the judgment amount and interest and costs payable.

The claimant serves a copy of the certificate, together with the judgment (and any certified translation), on the defendant.

The claimant may then enforce the judgment as though it were obtained from a court in England and Wales.

A defendant can apply for refusal of enforcement where there are grounds to do so. The grounds are set out in Article 45 of the Recast Brussels Regulation and are narrow in scope. The claimant will not be able to enforce the judgment until the application has been determined by the court.

Enforceable Judgments

The 2001 Brussels Regulation, 2007 Lugano Convention and Recast Brussels Regulation have similar provisions relating to the type of judgments that a claimant may enforce and the proceedings those judgments relate to.

All three instruments define “judgment” as

“any judgment given by a court or tribunal… whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determine of costs or expenses”

These instruments extend to all civil and commercial matters (excluding revenue, customs, or administrative matters).

It is worth noting that the Recast Brussels Regulation also extends to certain interim orders, such as injunctions.

European Regime for Enforcement; Post-Brexit

Where the post-Brexit regime applies, the creditor will have resort to one of the following instruments to enforce the German judgment in England and Wales:

1. 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 a German / EU Judgment in the UK under the Hague Convention is in similar terms to the Lugano Convention. In essence, registration of the Judgment in the UK 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.

2. 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.

3. The Common Law Regime

If a claimant is unable to enforce the judgment in the UK 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.

How a creditor who has obtained a Judgment in The Netherlands goes about enforcing that judgment in England and Wales depends on whether the claim was issued pre or post Brexit. This is because The Netherlands is a member of the European Union. 

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 The Netherlands pre and post Brexit.

European Regime for Enforcement Pre-Brexit

Article 67 of the Withdrawal Agreement provides for recognition and enforcement of judgments, arising from claims issued in the EU before 31 December 2020, under the various European regimes.

This means that judgments from the Netherlands will remain enforceable in England and Wales and vice versa.

There are four main instruments which apply. These are:

1. Recast Brussels Regulation (Council Regulation (EU) 1215/2012)
2. 2001 Brussels Regulation (Council Regulation (EC) 44/2001)
3. 2007 Lugano Convention
4. European Enforcement Order (EEO) Regulation (Regulation (EC) No 805/2004)

The Recast Brussels Regulation (Council Regulation (EU) 1215/2012) is the primary instrument for enforcing an EU judgment in England and Wales where the claim commenced pre-Brexit. This is because it provides a more straightforward and less expensive process and dispenses with some of the requirements under the other European regimes.

The Recast Brussels Regulation applies to court judgments issued in legal proceedings instituted on or after 10 January 2015. The Recast Brussels Regulation has direct effect in the UK and in all EU member states, including The Netherlands, meaning that an EU court judgement is automatically enforceable in England and Wales without the need to register the judgement first.

We only summarise the process under the Recast Brussels Regulation for the purpose of this guide. For more information on the processes under the 2001 Brussels Regulation (Council Regulation (EC) 44/2001), the 2007 Lugano Convention and the European Enforcement Order (EEO) Regulation (Regulation (EC) No 805/2004), visit our guide on the enforcement of judgments under the EU regime. 

What is the Process?

The staged process is as follows:

The claimant obtains a certificate from the originating court in the Netherlands in the format set out in Annex 1 of the regulation. This certificate certifies that the judgment is enforceable and provides details of the court judgment, including the judgment amount and interest and costs payable.

The claimant serves a copy of the certificate, together with the judgment (and any certified translation), on the defendant.

The claimant may then enforce the judgment as though it were obtained from a court in England and Wales.

A defendant can apply for refusal of enforcement where there are grounds to do so. The grounds are set out in Article 45 of the Recast Brussels Regulation and are narrow in scope. The claimant will not be able to enforce the judgment until the application has been determined by the court.

Enforceable Judgments

The 2001 Brussels Regulation, 2007 Lugano Convention and Recast Brussels Regulation have similar provisions relating to the type of judgments that a claimant may enforce and the proceedings those judgments relate to.

All three instruments define “judgment” as

“any judgment given by a court or tribunal… whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determine of costs or expenses”

These instruments extend to all civil and commercial matters (excluding revenue, customs, or administrative matters).

It is worth noting that the Recast Brussels Regulation also extends to certain interim orders, such as injunctions.

European Regime for Enforcement Post-Brexit

Where the post-Brexit regime applies, the creditor will have resort to one of the following instruments to enforce the judgment in England and Wales:

1. 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 a judgment obtained in the Netherlands / EU Judgment in the UK under the Hague Convention is in similar terms to the Lugano Convention. In essence, registration of the Judgment in the UK 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.

2. 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.

3. The Common Law Regime

If a claimant is unable to enforce the judgment in the UK 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.