Enforcement of Judgments 2024 Comparisons

Before considering enforcement options in England and Wales, it is important to assess the judgment debtor’s asset position in the jurisdiction. There are a number of options available to identify the judgment debtor’s asset position, including the following.

• Enquiries of the following publicly available sources.
1. The Land Registry – to confirm the ownership of real estate along with information about any registered charges over the property.
2. The Bankruptcy and Insolvency Register – to ascertain if an individual is recorded to be involved in a form of insolvency process or the subject of any related orders. It is also possible to carry out searches for sole traders using the trading name.
3. Companies House – company accounts are available, as well as details about the company’s directors, shareholders and registered charges relating to the company. Companies House also details whether the company is subject to an insolvency process. It is now possible under the Economic Crime (Transparency and Enforcement) Act 2022 to search at Companies House for information relating to the beneficial ownership of overseas corporations owning UK real estate.
4. The attachment of earnings order index – this is used to ascertain if a party has a pre-existing attachment of earnings order against them.
5. The Insolvency and Companies List of the Business and Property Courts of England and Wales provides some information about active proceedings.
6. The Aircraft Registration section of the Civil Aviation Authority and the UK Register of Aircraft Mortgages.
• Instructing an enquiry agent to carry out a lawful investigation to identify any further assets in the jurisdiction.
• Applying to court for an order that the judgment debtor (or director of a company judgment debtor) attends court and sets out its financial position under oath.

Having identified that a judgment debtor has assets in the jurisdiction, in some cases it will be possible to obtain a post-judgment freezing order, which restrains the judgment debtor from dissipating its assets and can require the judgment debtor to deliver up information regarding its assets.

The types of judgment most commonly available from the courts of England and Wales are:

• money judgments: the defendant is ordered to pay a sum of money;
• final injunctions: the defendant is ordered to take a specific action or to stop doing something; and
• declaratory relief: the court makes a declaration as to the parties' respective rights.

Money judgments and final injunctions are judgments in which the court determines the respective rights of the parties and orders one or both to act in a particular way. These can be directly enforced in England and Wales.

Judgments for declaratory relief do not order any party to act in a particular way that is enforceable. However, if a party subsequently acts in a way that is inconsistent with the court's declaration, the other party can start proceedings to enforce their rights based on the declaration.

Judgments in England and Wales usually follow a full trial on the merits of the dispute, with the following exceptions:

• early determination might be obtained without full trial in a very clear case (through an application for summary judgment or strike out);
• interim remedies may be granted pending full trial – eg, an interim injunction freezing a person's assets; and
• judgment in default where a defendant is properly served with a claim but fails to respond within the time frame set out in the rules – in certain circumstances, the defendant may be able to have the judgment set aside and proceed with defending the litigation.

There are a number of ways to enforce a domestic judgment.

Charging Order

This is a court order for a charge over specific property owned by the judgment debtor (land, securities or certain other assets). The charge attempts to prevent the judgment debtor from selling the property without first satisfying the charge (ie, paying the judgment debt). Obtaining the charge allows the judgment creditor to then apply to court seeking an order for the sale of the asset and, if successful, use the proceeds to pay the judgment debt.

The process of applying for an interim charging order is usually relatively straightforward, with a prescribed form for the application. The application is usually first made without notice to the judgment debtor and dealt with by a judge without a hearing. Following this, the applicant can apply for a final charging order. At that point, the judgment debtor (who may dispute the charging order) and any other third party who claims an interest in the asset will be given notice of, and may attend, the hearing of the judgment creditor’s application.

Attachment of Earnings

Where the judgment debtor is an individual, the party seeking enforcement can apply to court for a direction that the judgment debtor’s employer pays an amount of the judgment debtor’s salary to the judgment creditor (to be paid first to a collecting officer, who will then pass this on to the judgment creditor).

Such an order cannot be obtained against a judgment debtor who is unemployed, self-employed, in the armed forces or a merchant seaman.

A Third-Party Debt Order

A third-party debt order provides for monies owed to a judgment debtor from a third party to instead be passed to the judgment creditor. This is often obtained in respect of a credit balance in a judgment debtor’s bank account.

Similar to an application for a charging order, this involves a two-stage process as part of which the judgment creditor first seeks an interim third-party debt order (without notice to the judgment debtor); following this, a hearing will take place, at which the court decides whether to make a final order. The third party can object to the order and intervene to attempt to prevent the order being made. It is not usually possible to obtain a third-party debt order in respect of debts to which the debtor does not have full entitlement (such as a joint debt or future debt) or over which the court does not have jurisdiction (eg, a debt owed in another country).

Enforcement by Taking Control of Goods

The judgment creditor can apply to court to take control of the judgment debtor’s goods for the purpose of selling those goods to pay the judgment debt. This involves instructing an enforcement agent to collect and sell goods (by entering the judgment debtor’s premises).

Insolvency Proceedings

Monies owing under a judgment are a debt and it may be possible to instigate insolvency proceedings for non-payment by applying to make an individual bankrupt or declare a corporate entity insolvent.

In relation to an individual, the process involves serving a statutory demand requiring the judgment debtor to pay the debt. The debt would need to be above a prescribed amount – GBP5,000 at the time of writing (June 2024). If the judgment debtor fails to pay this debt, the next stage is to petition for a bankruptcy order with a view to a trustee in bankruptcy being appointed to collect the judgment debtor’s assets and distribute these to the creditors.

In relation to a company, a statutory demand can also be served, although this is not always necessary. The debt would need to be more than GBP750 (as of June 2024); if unpaid, the next step would be to present a winding-up petition with a view to the appointment of a liquidator, again to collect and distribute the judgment debtor’s assets.

A judgment creditor may be able to apply for an administration order in relation to a company. This is an unusual step but could be appropriate if the debtor is a trading business with limited tangible assets and its ability to repay the judgment debt is therefore reliant on the continuation of the business. Administration is a regime aimed at business rescue, in order to achieve the best outcome for a company’s creditors. If there is any suspicion that the debtor has moved or sold any of its assets to avoid paying the judgment debt, then it is important to consider insolvency proceedings as part of the enforcement strategy.

Insolvency practitioners have powers to investigate and apply to the court to reverse certain transactions entered into by a debtor prior to its insolvency. The rules for such claims differ, depending on the circumstances of each case, but there are typically time limits for such claims, so early assessment of the benefits of this strategy is very important.

In certain circumstances, individuals and companies may be able to benefit from short statutory moratoriums on enforcement, where their position may be improved by the grant of a short period of time in which to organise their affairs. Advice should be taken in relation to relevant procedures if considering insolvency proceedings.

Appointment of a Receiver

A judgment creditor may be able to apply to court for the appointment of a receiver over the judgment debtor’s assets. This option is usually only available as a last resort when it is not possible to enforce the judgment by a more normal route. This method of enforcement could potentially be useful in relation to, for example, companies with specific valuable assets such as real estate or IP. However, the assets of debtors in financial difficulty are usually subject to security in favour of other parties, so it is often difficult to take control of such assets.

An application to appoint a receiver can be made without notice to the judgment debtor but must be supported by evidence.

Contempt of Court

A creditor may be able to instigate contempt of court proceedings for failure to comply with a judgment or court order (often considered, for example, where there has been a breach of an injunction). In this regard, the applicant can, for example, seek an order to send an individual to prison for contempt of court (or, in the case of a company, the application can be made against the company’s directors).

Taking such action is usually viewed as a remedy of last resort where there is a history of disobedience of court orders in ongoing proceedings.

Freezing Order

As discussed in 1. Identifying Assets in the Jurisdiction and 2.1 Types of Domestic Judgments, a judgment creditor may be able to apply to the court for an order freezing the judgment debtor’s assets pending enforcement. This is in an attempt to avoid the debtor’s assets being dissipated (and can be used only where it can be shown there is a risk of dissipation).

The typical costs involved and the length of time for enforcement will vary depending on the complexity of the case. Applying for an interim charging order, attachment of earnings or enforcement by taking control of goods should – in theory – be straightforward and can usually be achieved in a relatively cost-effective manner.

Any challenge to the method of enforcement naturally increases the time and expense. This is particularly the case in relation to seeking an order for sale once the judgment creditor has obtained a charging order. A charging order may help safeguard the asset in question (and is therefore worth considering), but to sell the asset, the judgment creditor will need to apply for an order of sale. These applications are often hotly disputed, particularly if the asset is a family home, where there is limited equity in the property, or where the property is jointly owned.

It is important to note that insolvency proceedings require a professional person to be appointed (a trustee in bankruptcy, administrator or liquidator), whose fees will be paid out of the judgment debtor's estate, reducing the value of assets available for distribution. There may be calls on the debtor’s assets from other parties who have priority, such as secured or preferential creditors. The assets that are available for distribution to unsecured creditors are then distributed pro rata to the level of debt. In insolvency proceedings, unsecured creditors often only receive a small proportion of the debt they are owed.

Ultimately, in deciding which route to use for enforcement, it is essential to understand the nature and value of the judgment debtor’s assets and to consider the size of the judgment debt. If a judgment debtor owns substantial property, then a charging order might be an obvious choice. However, if the debt is relatively small, it may be more difficult to obtain an order for sale of the property. Equally, it is important to ascertain whether the property in question has existing charges registered on it. Likewise, in relation to a substantial debt, an attachment of earnings, for example, may only lead to a limited recovery over a lengthy period of time.

A judgment creditor may therefore decide to pursue a number of enforcement routes in parallel, to best protect itself and maximise its prospects of recovery.

As discussed in 1. Identifying Assets in the Jurisdiction, a judgment creditor may be able to seek an information order from the court to ascertain the judgment debtor’s financial position. This will require the judgment debtor (or the director of a company judgment debtor) to attend court and give disclosure of their financial position, under oath. The court order requiring attendance must be personally served on the judgment debtor when the debtor is within the jurisdiction (ie, in England and Wales).

There are two main ways to challenge enforcement:

• challenging the enforceability of the judgment itself; and/or
• challenging the particular method of enforcement.

Challenging the Enforceability of the Judgment

A common method of challenging the enforceability of a judgment is on the basis that the court did not have jurisdiction over the matter, or that the judgment is not final and is still being considered by the court. The following are by way of example.

• The judgment debtor may dispute that proceedings were properly served on them or argue that the court did not have jurisdiction to hear the dispute (for example, the proceedings should have been dealt with in another forum).
• The judgment debtor may seek a stay of execution of the judgment on the basis that they are challenging the outcome of the judgment (and that the court should not allow the judgment to be enforced while that challenge is outstanding). Such challenges may involve:
1. an appeal of the judgment;
2. an application to set aside judgment on the basis that the defendant was not in attendance at the hearing; or
3. an application to set aside judgment obtained in default.

Challenging the Method of Enforcement

Such challenges often take place on the basis that there are questions over the ownership of the asset against which enforcement is sought and/or that undue prejudice will be caused to the judgment debtor if that method of enforcement is allowed.

A judgment by the courts of England and Wales requiring a defendant to pay a sum of money or to act in a certain way is a form of judgment that can be enforced by the courts of England and Wales (subject, of course, to any challenges to enforcement).

While a judgment for declaratory relief cannot itself be enforced (on the basis that there is no action to enforce), in practice it may be possible to enforce it if a party acts contrary to the declaration. As discussed above, this would usually mean starting new proceedings based on the court’s declaration, and enforcing the judgment in those proceedings.

There is a central register of judgments: the Register of Judgments, Orders and Fines for England & Wales. County Court and High Court judgments stay on the register for six years but can be removed from the register if they are set aside or if the judgment debtor pays within one month. If the judgment debtor pays after one month, the judgment can be marked “satisfied”.

Following the end of the Brexit transition period (the “Brexit TP”) on 31 December 2020, there are now four regimes for the enforcement of foreign civil and commercial judgments in England and Wales. The enforcement of judgments from Scotland and Northern Ireland is governed by the Civil Jurisdiction and Judgments Act 1982, and is outside the scope of this Guide. The judgment's state of origin, the date the underlying proceedings were issued, the date of the judgment and the subject matter of the judgment will determine which regime applies.

The terms of the UK’s relationship with the EU at the end of the Brexit TP contained no provision for civil judicial co-operation, and there is currently no civil procedure convention specific to the UK and EU governing the legal basis for enforcing judgments from EU states in the UK.

The UK formally applied to accede to the Lugano Convention, to which the EU is party along with Iceland, Norway and Switzerland, but the EU has rejected the UK’s accession (the agreement of all parties to the Convention is required for the accession of a new state).

The UK has now signed and ratified the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters 2019 (the “Hague Judgments Convention”), which will come into force for the UK on 1 July 2025 (extending to England and Wales only).

European Regime for Judgments Given in Proceedings Issued in EU Member States Before 31 December 2020 (the “European Regime”) and the Lugano Convention

The European Regime remains applicable to the enforcement of judgments in the UK only where the proceedings that led to the judgment were commenced in an EU member state before the end of the Brexit TP (Article 67 of the UK/EU withdrawal agreement). The regime comprises two (very slightly) different instruments:

• the Brussels Regulation 2001 (EU 44/2001) (“Brussels 2001”), for claims issued up to 9 January 2015; and
• the Brussels Regulation (recast) (EU 1215/2012) (“Recast Brussels Regulation”), for claims issued from 10 January 2015.

It is no longer possible to enforce foreign judgments in England and Wales using either of these regimes in respect of underlying proceedings started after the Brexit TP.

There is no agreement between the UK and the non-EU Lugano Convention states (Norway, Iceland and Switzerland) about the continuing application of the Lugano Convention after the end of the Brexit TP to proceedings issued before it ended. However, with effect from 31 December 2020, national, unilateral, UK regulations provide for the continued application in the UK of that convention to the enforcement of judgments from those three states in proceedings issued before the end of the Brexit TP.

Hague Choice of Court Convention 2005 (“Hague Convention 2005”)

This Convention provides for the recognition and enforcement of judgments based on exclusive choice of court agreements concluded on or after 1 October 2015 (or the date of accession of the relevant member state, if later), conferring jurisdiction on a signatory state. The ratified signatories to the Hague Convention 2005 are currently the EU, Mexico, Montenegro, Singapore, Ukraine and the UK (the UK acceded in its own right at the end of the Brexit TP). China, Israel, North Macedonia and the USA have signed but not ratified the Hague Convention 2005.

The Hague Convention 2005 has the force of law in the UK by virtue of an amendment to the Civil Jurisdiction and Judgments Act 1982. The UK government considers that the Hague Convention 2005 entered into force for the UK on 1 October 2015 (when it became bound by virtue of its then membership of the EU), and that the UK was a contracting state without interruption from that date. EU member state courts may take a different view of the date of the UK’s accession to the Hague Convention 2005, but UK courts will apply it to judgments given in proceedings that are based on choice of court agreements where the relevant agreement was entered into after 1 October 2015.

The UK Statutory Regimes

The Administration of Justice Act 1920 (the “AJA 1920”) deals with the enforcement of judgments from a large number of Commonwealth states, including Bermuda, the British Virgin Islands, Kenya, Malaysia, New Zealand, Singapore, Tanzania and Zimbabwe. It is worth noting that the AJA 1920 also deals with the enforcement of foreign judgments from the EU states of Cyprus and Malta (because of their particular historical links with the UK). It no longer applies to Hong Kong.

The Foreign Judgments (Reciprocal Enforcement) Act 1933 (the “1933 Act”) deals with the enforcement of judgments from Austria, Belgium, Canada, France, Germany, the Isle of Man, Israel, Italy, Jersey, India, the Netherlands, Pakistan, Suriname and Tonga. Some of these are EU states – since judgments based on proceedings issued in EU states after the end of the Brexit TP are no longer enforceable using the EU regime, it may be that applications for the registration of judgments from these countries will have to be made under the 1933 Act in future (if the judgment does not fall within the Hague Convention 2005).

The Common Law

Judgments from states with which the UK has no treaty arrangements for enforcement – notably the USA, China and Russia – will need to be enforced under the common law. This requires fresh proceedings to be issued in the courts, based on the foreign judgment.

After obtaining a new judgment that is enforceable in England and Wales, it is then open to a judgment creditor to consider the domestic enforcement options discussed above.

Hague Judgments Convention 2019

Not to be confused with the Hague Convention 2005, the Hague Judgments Convention 2019 goes further than the 2005 Convention. It provides for the enforcement of judgments based on non-exclusive jurisdiction clauses and, in contrast to the Hague Convention 2005, employment and consumer contracts are within its scope.

The Convention entered into force between the EU (except Denmark) and Ukraine in September 2023. It enters into force for Uruguay in October 2024, and will enter into force for the UK on 1 July 2025 (although it will only extend to England and Wales), meaning it will apply to English and Welsh judgments given in proceedings commenced from that date.

For most judgments in proceedings commenced in EU states before the end of the Brexit TP, it will be easier to enforce a judgment under the European Regime than under any other regime. There is no requirement for judicial oversight before domestic enforcement steps are taken: recognition of judgments under the European Regime is an administrative process undertaken by court staff.

Under Brussels 2001 (which remains applicable for judgments given in claims issued up to 9 January 2015), the Lugano Convention, the Hague Convention 2005 and the statutory regimes, foreign judgments must first be registered (a judicial process) before they can be enforced. After registration, however, a judgment is treated as though it were a judgment of the courts of England and Wales, so enforcement in England and Wales may then take place using domestic processes.

Under the common law, a foreign judgment cannot be directly enforced. The party enforcing the judgment first needs to start new proceedings in England or Wales, suing on the foreign judgment as a debt (usually applying for summary judgment on the new claim). A new judgment in the courts of England and Wales must be obtained before domestic enforcement steps can be considered.

The types of judgment that will be enforced are different for each regime, but there are certain categories that will generally not be enforced, or for which enforcement will be more difficult.

• Interim (provisional or protective) judgments will usually only be enforced if they fall under the European Regime. Within that regime, they will only be enforced if the defendant was given notice of the hearing at which the judgment was given or if the judgment containing the order is served on the defendant before enforcement (Article 2(a) of the Recast Brussels Regulation).
• Under the European Regime, judgments given in default will not be enforced. The exception to this is if the defendant had the opportunity to bring proceedings to challenge the judgment when they heard about it but did not do so (Article 45(1)(b) of the Recast Brussels Regulation).
• Under the Hague Convention 2005, judgments following decisions on the merits, by the court of a signatory state that was the chosen court in an exclusive choice of court agreement, may be enforced. This may include default judgments (Article 4(1)) and final injunctions. Interim orders, however, will not be enforced. Enforcement of judgments giving non-monetary remedies can be enforced, but awards for sums of money that include exemplary or punitive damages may be refused enforcement.
• Under the AJA 1920, the 1933 Act and the common law, only money judgments may be enforced and, as explained in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments, under the common law, a fresh judgment of the English court must first be obtained. The judgment being enforced must be final and conclusive. Interim judgments will not usually be final, unless they represent the foreign court’s last word on the merits. It is also not possible as a matter of English law to enforce judgments from foreign courts in relation to taxes, fines or penalties.

The European Regime (Judgments Given in Proceedings Issued in EU Member States Before the End of the Brexit TP) and the Lugano Convention

For judgments that fall under the Recast Brussels Regulation, the process for creating a judgment that can be enforced is administrative, usually with no judicial involvement. An exception to this is where there is an ongoing appeal by the judgment debtor.

A party seeking enforcement must produce a certified copy of the judgment to be enforced, together with a certificate issued by the court of origin stating that the judgment is enforceable (Article 53 of the Recast Brussels Regulation). Translations into English are also required by the Civil Procedure Rules (CPR 74.4). There is no need to register the judgment, but the judgment must be served on the judgment debtor before the first domestic enforcement measure is taken.

For judgments that fall under the Brussels 2001 or Lugano regimes, a judicial order registering the judgment must first be obtained before domestic enforcement action can take place. An application must be made to the High Court for an order that the judgment be registered. An authenticated copy of the judgment is required, with a standard form certificate that it is enforceable under the law of the state of origin. The courts also require notarised translations into English and written evidence in support of the application (the evidence required varies depending on which regime applies). No notice of the application to register needs to be given to the judgment debtor.

Hague Convention 2005

For judgments falling within the Hague Convention 2005, an application must be made for registration in the same way as set out in the previous paragraph. The evidence required in support of the application is set out in Article 13 of the Hague Convention 2005. No notice of the application to register needs to be given to the judgment debtor.

Statutory Regimes

Judgments falling under the AJA 1920 or the 1933 Act must also be registered. The 1933 Act prescribes in more detail than the AJA 1920 what evidence is required to support the application. The requirements for applications under both Acts are set out in the Civil Procedure Rules at CPR 74.4. There are strict time limits.

Post-registration Requirements – European, Lugano, Hague Convention and Statutory Regimes

In all cases where a foreign judgment is registered, the order giving permission to register must be served on the judgment debtor. It must include:

• the full details of the judgment registered;
• the name of the creditor and their address for service;
• the right of the debtor to apply to set the registration aside or to appeal, depending on which regime applies; and
• the period within which a challenge, if any, must be made and state that no enforcement measures may be taken until the end of that period (other than protective measures).

Common Law Enforcement – Where No Other Regime Applies

Under the common law, a fresh claim in the courts of England and Wales must be started and a domestic judgment obtained before any enforcement can take place. The judgment creditor will usually apply for summary judgment (a form of early determination) in the new domestic proceedings (under Part 24 of the Civil Procedure Rules), on the grounds that the defendant’s liability has already been decided, so the debtor should have no defence to the claim. In response, the defendant may argue that one of the grounds to challenge recognition applies. These are dealt with in more detail under 3.6 Challenging Enforcement of Foreign Judgments.

Under the Recast Brussels Regulation, the necessary steps to take in order to be in a position to start enforcement action in England and Wales should be relatively inexpensive and swift. This is, however, always subject to any challenge by the judgment debtor that can change the position. If there is no challenge, it should be possible to start English enforcement proceedings almost immediately.

If registration is required (all other EU/EFTA judgments, the Hague Convention 2005 and the statutory regimes), it may take a few weeks for the registration process to complete before enforcement procedures can be started.

If the common law regime applies and fresh proceedings are required, even if an application for summary judgment is successful, the minimum period for an enforceable judgment is likely to be several months from the date of issue of the new claim, and could be longer.

Under any of the routes outlined above, challenges by a judgment debtor, even if ultimately unsuccessful, will delay the process and increase the cost.

The routes to challenge enforcement depend on which regime applies to the particular judgment.

Under the European Regime (Judgments Given in Proceedings Issued in EU Member States Before the End of the Brexit TP) and Lugano Convention

There are limited grounds for challenging enforcement. A judgment will not be recognised if recognition is manifestly contrary to UK public policy, nor if the judgment:

• is given in default (if the defendant was not served with the proceedings), unless the defendant failed to challenge the proceedings when it was possible for them to do so;
• is irreconcilable with a judgment given between the same parties in the UK;
• is irreconcilable with an earlier judgment in another member state including the same cause of action and between the same parties;
• conflicts with the special protection for consumers, employees or insureds (weaker parties) under the European Regime; or
• is under challenge in the state of origin, or an application has been made in the UK to refuse enforcement.

Under the Hague Convention 2005

Fraud is a ground for refusing recognition. Other grounds for refusing recognition include the following.

• The choice of court agreement was null and void, unless the court of origin determined that it was valid.
• A party lacked the capacity to conclude the choice of court agreement.
• The document that instituted the proceedings:
1. was not notified to the defendant in sufficient time and in such a way as to enable the defendant to arrange its defence, unless the defendant presented its case without contesting notification in the court of origin, provided that the law permitted notification to be contested; or
2. was notified to the defendant in the requested state in a manner that is incompatible with the fundamental principles of the requested state concerning service of documents.
• Recognition or enforcement would be manifestly incompatible with UK public policy, including where the proceedings leading to the judgment were incompatible with the fundamental principles of procedural fairness of the state of origin.
• The judgment is inconsistent with a judgment given in the UK in a dispute between the same parties or is inconsistent with an earlier judgment given in another state between the same parties on the same cause of action, provided that the earlier judgment fulfils the conditions necessary for its recognition in the UK.

Under the Statutory Regime

Examples of grounds for challenging registration are set out below.

Under the AJA 1920

No judgment may be registered (or any registration may be set aside) if:

• the application is made more than 12 months after the date of the original judgment (or longer if the English court permits);
• the original court had no jurisdiction over the matter;
• the judgment debtor was not resident or carrying on business in the original jurisdiction and did not voluntarily submit to that jurisdiction;
• the debtor was not served with the original proceedings and did not appear or submit to the original jurisdiction;
• the judgment was obtained by fraud;
• enforcement would be contrary to UK public policy;
• an appeal is pending in the original court, or the debtor is entitled to appeal and intends to do so; or
• the judgment is in respect of a cause of action that could not have been brought in England.

Under the 1933 Act

No judgment may be registered (or registration may be set aside) if:

• the judgment does not fall within the types of judgments covered by the 1933 Act;
• the original court had no jurisdiction;
• the defendant did not receive notice in sufficient time to enable them to defend the proceedings, and did not appear to defend them;
• the judgment was obtained by fraud;
• enforcement would be contrary to UK public policy; or
• the rights under the judgment are not vested in the applicant for registration.

Registration may be set aside if, prior to the date of the original judgment, the matter had been the subject of a final judgment by a court with jurisdiction over the matter.

Under the common law

Examples of grounds for defending a fresh claim based on a foreign judgment include the following.

• The defendant was not “present” in the foreign jurisdiction when the original foreign proceedings started and did not agree to abide by the outcome.
• The judgment:
1. is not for a sum of money, but some other remedy, or is for liability only;
2. represents an award of multiple damages (which are prohibited in the UK under Section 5 of the Protection of Trading Interests Act 1980);
3. relates to the enforcement of foreign taxes;
4. is in relation to foreign property rather than against a natural or legal person (ie, is a judgment in rem);
5. is not final and conclusive;
6. is contrary to UK public policy;
7. is obtained by fraud; or
8. is in breach of contract (for example, in breach of an agreed jurisdiction agreement).
• The trial was unfair and/or Article 6 of the European Convention on Human Rights obliges the courts of England and Wales not to give effect to it.

When considering the enforcement of arbitral awards in England and Wales, different considerations apply depending on whether the arbitral award in question was made outside England, Wales and Northern Ireland (termed a foreign award) or within these territories (termed a domestic award).

Domestic Awards

The Arbitration Act 1996 governs the recognition and enforcement of arbitral awards in England, Wales and Northern Ireland. Section 66(1) of the Arbitration Act provides that an award made by a tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect. Furthermore, where leave is so given, judgment may be entered in terms of the award (Section 66(2)). Accordingly, following obtaining leave, it is open to a party to enforce a domestic award in England and Wales, and the same considerations set out in 2. Domestic Judgments apply.

It is important to note that Section 66 of the Arbitration Act is mandatory and cannot be contracted out of. Furthermore, this section of the Arbitration Act applies to arbitrations seated both inside and outside England and Wales or Northern Ireland (Schedule 1 and Section 2(2)(b) of the Act) – ie, this provision can also be used for enforcing foreign awards.

Foreign Awards

The UK’s withdrawal from the European Union has had no impact on the enforcement of EU arbitral awards within the UK, by virtue of the fact that the UK and the EU are signatories to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. This convention is unrelated to the UK’s former membership of the EU.

Foreign awards tend to fall into three distinct categories.

New York Convention awards

Under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (commonly termed the New York Convention), any signatory state may, on the basis of reciprocity, declare that it will apply the New York Convention to the recognition and enforcement of awards made in the territory of another contracting state. The New York Convention entered into force in the UK on 23 December 1975. It applies to awards made, in pursuance of an arbitration agreement, in the territory of another state that is a party to the New York Convention. Furthermore, the Arbitration Act expressly caters for the recognition and enforcement of New York Convention awards (Sections 100 to 104).

In particular, pursuant to Section 101(2) of the Arbitration Act, an award that falls under the New York Convention may, by leave of the court, be enforced in the courts of England and Wales. If leave is so given, judgment may be entered in the terms of the award (Section 101(3) of the Arbitration Act). An award is treated as being “made” in the same place as the seat of the arbitration (Section 100(2)(b) of the Arbitration Act). (It is also open to seek to enforce the award under Section 66 of the Arbitration Act as well, but, generally, enforcing the award pursuant to Sections 100 to 103 of the Arbitration Act is the usual route.)

As of June 2023, there are in excess of 170 state parties to the New York Convention. Accordingly, in practice, the majority of foreign awards enforced in the courts of England and Wales relate to awards enforced under the New York Convention.

Geneva Convention awards

The Geneva Convention was effectively the New York Convention’s predecessor and there are a relatively small number of countries that have not yet signed and/or ratified the New York Convention but are a party to the Geneva Convention. Awards to which the Geneva Convention relates are enforced under Section 99 of the Arbitration Act.

Other foreign awards

• ICSID awards – the UK is also a party to the International Centre for Settlement of Investment Disputes Convention 1966 (ICSID). The enforcement of ICSID awards, which typically relate to investment treaty arbitrations, is governed by this convention, usually referred to as the Washington Convention.
• The Foreign Judgments (Reciprocal Enforcement) Act 1933 – this relates to the enforcement of awards made in certain former Commonwealth nations.
• Under the common law, which in theory provides a route for the enforcement of any foreign award.

In general terms, the variation in approach depends on whether the award is a domestic or foreign award and, if it is a foreign award, whether a particular convention applies, allowing for recognition and enforcement.

Other than this, the main variation in approach depends on the form of the arbitral award and whether the award falls within a category of award that will not be enforced (see 4.3 Categories of Arbitral Awards Not Enforced).

The starting point when considering whether an award will be enforced is to consider the form of the award and whether it meets the requisite criteria for enforcement.

Domestic Awards

The parties to an arbitration agreement are free to agree on the form of an arbitral award. To the extent that there is no such agreement, Section 52 of the Arbitration Act provides that the award must:

• be in writing and signed by all the arbitrators or all those assenting to the award;
• contain the reasons for the award (unless it is an agreed award or the parties have agreed to dispense with reasons);
• state the seat of the arbitration; and
• state the date when the award is made.

If an award does not comply with these requirements, it cannot be enforced.

Foreign Awards

If a particular convention or statute applies to the enforcement of a foreign award, the award must meet the requirements of that convention or statute. For example, in relation to a New York Convention award to be enforced in England and Wales, the award must meet the New York Convention’s requirements – namely, the award must be in writing and signed.

Partial or Interim Awards

It is not uncommon for there to be debate about the enforceability of interim or partial awards made by a tribunal (or a tribunal’s partial or interim decision or order). Ultimately, this question will depend on whether there is an “award” for the purposes of Section 66 or Section 100(1) of the Arbitration Act.

Under Section 47(2) of the Arbitration Act, a tribunal in an arbitration seated in England and Wales can make an order relating to part of the claims or cross-claims submitted to it for decision – ie, a partial award not dealing with all of the issues before the arbitral tribunal. Pursuant to Section 58 of the Arbitration Act (unless otherwise agreed by the parties), such a partial award made under Section 47(2) of the Arbitration Act will be final and binding on the parties and therefore capable of enforcement pursuant to Section 66 of the Arbitration Act. That said, the court may adjourn any attempt to enforce pending a resolution of the entire dispute.

In contrast, provisional orders that can be subject to further review will not be enforced but will be viewed as a peremptory order by the tribunal. In this regard, and when considering the effect of a decision by a tribunal, the court will look at the substance of the tribunal’s decision and not the label.

Declaratory Awards

The courts have enforced declaratory awards by entering judgment in terms of the award, recognising that this would make a positive contribution to the securing of the material benefit of the award.

Enforcing an arbitral award in the courts of England and Wales (ie, in order to be in a position to take the domestic enforcement steps set out in 2. Domestic Judgments) will usually involve an application to the High Court (it is also possible to apply to the County Court). The application is normally made under Section 66(1) of the Arbitration Act (in respect of awards made in England and Wales or Northern Ireland) or Section 101(2) of the Arbitration Act (in respect of New York Convention awards).

The application is relatively straightforward and needs to include the following:

• a completed arbitration claim form;
• an affidavit or witness statement in support, which will need to include a copy of the award and the arbitration agreement (in relation to enforcement steps under Sections 100 to 104 of the Arbitration Act, this needs to be the original or a certified copy) as well as confirmation that the award has not been complied with (or detailing the extent to which the award has not been complied with);
• a draft order granting permission to enforce the award; and
• a statement of interest, if the award includes post-award interest.

Permission to serve the arbitration claim form outside the jurisdiction may also be required, depending on where the defendant(s) is/are based.

The application can be made ex parte. The court will then grant leave to enforce the award or direct that the arbitration claim form is served on the defendant(s) before the order is made, in which case the enforcement proceedings will then continue as adversarial proceedings. If the court grants leave to enforce the award, the defendant will then be served with the order and have a period of 14 days (or longer, as specified by the court) to apply to have the order set aside.

Time

As discussed in 4.4 Process of Enforcing Arbitral Awards, making an application to the courts of England and Wales for leave to enforce an arbitral award is a relatively straightforward process. It will then depend on how quickly the court deals with the application and whether it decides to make the order for leave to enforce (which could happen in days) or direct that the arbitration claim form be served on the defendant and enforcement then be disputed. A summary procedure is available to a party seeking to enforce when there are no objections.

Costs

The costs include the applicable court fee (as of July 2023, GBP71 in the High Court or GBP47 in the County Court) as well as legal costs. Additional court fees will be payable when applying for execution against the award debtor’s assets. The legal costs will depend on the amount of work involved and whether enforcement is disputed.

Grounds for Refusing Recognition and Enforcement of New York Convention Awards Under Section 103 of the Arbitration Act

Unless there is a recognised ground for refusing enforcement under Section 103 of the Arbitration Act, the courts of England and Wales are bound to recognise and enforce foreign awards under the New York Convention. The grounds for refusal to recognise and enforce a foreign award include the following.

• A party to the arbitration agreement was under some incapacity, or the arbitration agreement was not valid (Section 103(2)(a) and (b) of the Arbitration Act).
• Proper notice of the appointment of the arbitrator or the arbitration proceedings was not given (or the other party was otherwise unable to present their case) (Section 103(2)(c) of the Arbitration Act).
• The award deals with a difference not contemplated by, or not falling within, the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration (Section 103(2)(d) of the Arbitration Act). This is subject to Section 103(4) of the Arbitration Act, which provides that an award that contains decisions on matters not submitted to arbitration may be recognised or enforced to the extent that it contains decisions on matters submitted to arbitration that can be separated from those matters not submitted.
• The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, with the law of the country in which the arbitration took place (Section 103(2)(e) of the Arbitration Act).
• The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made (Section 103(2)(f) of the Arbitration Act).
• The matter was not capable of settlement by way of arbitration or it would be contrary to public policy to recognise or enforce the award (Section 103(3) of the Arbitration Act) – for example, criminal matters or where there is a statutory right to be heard before a different tribunal (such as an employment tribunal) – or the objective under the contract that was the subject of the award was illegal under English law. These grounds may be raised by the court on its own initiative.

The Arbitration (International Investment Disputes) Act 1966

The courts of England and Wales are obliged to recognise an ICSID award as if it were a final judgment of their own courts. The exception is where the enforcement of the ICSID award would give rise to a breach of any English law that the courts of England and Wales are required to apply.

Grounds for Refusing Enforcement of an Arbitral Award Made in England and Wales

Leave to enforce an award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the tribunal lacked substantive jurisdiction to make the award (Section 66(3) of the Arbitration Act). This mandatory ground for refusing enforcement is, however, subject to the loss of the right to object (provided for at Section 73 of the Arbitration Act). This is on the basis that the party to the arbitral proceedings takes part, or continues to take part, in the proceedings without making an objection to jurisdiction or failure to comply with the arbitration agreement or improper conduct/irregularity affecting the tribunal or proceedings (either forthwith or within such time as allowed by the arbitration agreement or the tribunal). Leave to enforce shall also not be given if the tribunal has ruled on its jurisdiction and the party has not questioned the ruling (or within the allowed time).

Section 66 of the Arbitration Act does not provide grounds for refusing enforcement as provided for at Section 103 of the Arbitration Act. However, in practice, the courts of England and Wales have exercised their discretion in refusing enforcement for similar reasons.

Stay of Enforcement Proceedings Pending Set-Aside Proceedings

The courts of England and Wales have the discretion to adjourn enforcement proceedings pending the conclusion of set-aside proceedings at the seat of the arbitration. If permission to enforce the award has already been granted, the court also has the power to order a stay of execution.

The approach taken by the courts of England and Wales for granting an adjournment is discretionary, involving the consideration of a number of factors, including:

• whether the application for adjournment is bona fide and not merely to delay enforcement;
• whether the set-aside application before the seat has realistic prospects of success; and
• any delay or prejudice likely to arise from the granting of the adjournment.