English courts will generally give effect to a foreign judgment without a retrial of the underlying merits of a case. Broadly, foreign judgments will be enforced using one of four principal avenues:
- judgments of the courts of EU member states and other European countries will be enforced via the European regime, which consists primarily of the 2001 Brussels Regulation and the Recast Brussels Regulation (the Brussels Regime). In order to enforce a judgment pursuant to the Brussels Regime, the enforcing party must apply to the English court by filing the judgment (and a certified translation). There is very limited scope for defending an enforcement action under the Brussels Regime. Such grounds include arguing that the judgment is irreconcilable with an earlier judgment in a third member state covering the same course of action, or fundamentally contrary to public policy in the enforcing member state (only in exceptional circumstances). Certain “uncontested claims” brought in the courts of EU member states can be enforced using the EEO Regulation, in which the enforcing party applies for a certificate from the originating court. Following issuance of the certificate, the judgment is treated as if it were the judgment of an English court;
- judgments of the courts of Norway, Switzerland and Iceland (European Free Trade Association countries) will be enforced pursuant to the 2007 Lugano Convention. The process of enforcement and the grounds for resisting enforcement are similar to the Brussels Regime;
- judgments of certain Commonwealth countries (such as Australia, India and New Zealand) will be enforced pursuant to the Foreign Judgments (Reciprocal Enforcement) Act 1933 and the Administration of Justice Act 1920. In order to enforce pursuant to the above acts, the relevant judgment must be:
- final and conclusive; and
- for a sum of money (but not for a tax, fine or other penalty).
A defendant may resist enforcement if it can prove that the original court did not have jurisdiction (according to English conflicts of law rules), or if it can establish certain matters (eg, that the judgment would be contrary to public policy, or that the judgment was obtained by fraud); and
- foreign judgments not covered by the above instruments can be enforced at common law by suing the foreign judgment as a debt. This typically involves applying for summary judgment which, except in very limited circumstances (such as fraud), will not require retrial of the merits of the case. However, there are additional grounds under common law for defending an enforcement action than with other mechanisms. For example, a defendant may seek to argue that the original proceedings breached the rules of natural justice, that enforcement would be contrary to public policy or the Human Rights Act 1998, or that the judgment is for multiple damages and is, therefore, unenforceable pursuant to the Protection of Trading Interests Act 1980.
Similarly, pursuant to the Arbitration Act 1996, English courts will give effect to arbitral awards, without re-examination of the merits of an underlying case. In particular, Part III of the Arbitration Act gives effect to the New York Convention, meaning that arbitral awards made abroad are enforceable in England and Wales (with limited scope for the party against which the enforcement applies, to object).
The prevalence of directly-applicable EU law within English law means that, following Brexit, the English law framework regarding the enforcement of foreign judgments will change. As a result, in a “no-deal” scenario, the enforcement of EU judgments in England will continue under the existing regime for any judgments obtained on or before exit day, and similarly, for any EU judgment obtained where the relevant EU court was seised of the proceedings on or before exit day. However, that same regime will not apply within the EU for English proceedings already underway as of exit day nor for English court judgments obtained prior to exit day. Any later proceedings, and enforcements of English court judgments in the EU will be governed by a different regime under the Hague Convention, which envisages mutual recognition of exclusive jurisdiction clauses and a judgment enforcement regime. However, in the case of a no-deal Brexit there will be no substantial change to the enforcement of arbitral awards, as that is governed by the New York Convention, to which the UK is a separate signatory and which convention therefore exists entirely outside the EU legal structure.