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. These include the following.
Having identified that a judgment debtor has assets in the jurisdiction, it is also possible to obtain post judgment a freezing order. This is an order that restrains the judgment debtor from dissipating its assets as well as requesting the judgment debtor to deliver up information regarding its assets.
Judgments – General Overview
A number of different types of judgments are available from the Courts of England and Wales. Such judgments usually follow a trial of the dispute and commonly take the form of:
These types of judgments are executory-type judgments in which the court determines the respective rights of the parties ordering the defendant to act in a certain way.
In addition to obtaining judgment following a full trial, it is also possible to obtain:
It is also possible to obtain a judgment whereby the court pronounces upon the status of a legal state of affairs in an attempt to resolve uncertainty between litigants. This is called a judgment for declaratory relief. In this situation, the judgment itself does not order the defendant to act in a certain way that can be enforced. However, if, for example, the defendant acts contrary to the declaration, the claimant may be able to commence proceedings for damages or seek to enforce his rights on the basis of the declaration.
There are a number of ways to enforce a domestic judgment.
This involves obtaining an order from the court putting in place a charge over specific property owned by the judgment debtor (land, securities or certain other assets). This charge attempts to stop the judgment debtor from selling the property without reference to the judgment creditor. The charge also allows the judgment creditor to apply to court seeking a sale of the asset and, if successful, use the proceeds to pay the debt owed (enforced by obtaining an order for sale).
The process of applying for the initial charging order is usually relatively straightforward involving a prescribed form for making the application. The application is usually first made without notice to the judgment debtor and dealt with by the judge without a hearing. Following this, the applicant will apply for a final charging order that will at this stage involve the judgment debtor (who may dispute the charging order) and any other third party who claims an interest in the asset. There will be a hearing at this stage.
Attachment of Earnings
Where the judgment debtor is an individual, the party seeking enforcement may also be able to apply to the court seeking a direction that the judgment debtor's employer must pay an amount of the judgment debtor's salary to that party (to be paid first to a collecting officer, who will then pass this on to the judgment creditor).
It is important to note that such an order cannot be used against a judgment debtor who is unemployed, self-employed or in the armed forces (nor where the judgment debtor is a company).
A Third-party Debt Order
It is also possible to obtain a third-party debt order whereby monies owed to a judgment debtor from a third party are instead ordered to be passed to the judgment creditor. This is often obtained in respect of the judgment debtor's bank account.
Similar to an application for a charging order, this involves a two-stage process whereby the judgment creditor first seeks an interim third-party debt order (without notice to the judgment debtor) and, following this, a hearing will take place where the court determines whether to make the debt order final. In this regard, the third party is able to object to the order and able to intervene to attempt to prevent the order being made. It is usually not possible to obtain a third-party debt order in respect of debts that the debtor does not have full entitlement to (such as a joint debt or future debt) or the court does not have jurisdiction over (such as a debt owed in another country).
Enforcement by Taking Control of Goods
The judgment creditor may be able to apply to the court to seek to take control of the judgment debtor's goods with the purpose of selling those goods to pay the judgment debt. This involves instructing an enforcement agent to collect and sell the goods (by entering the judgment debtor's premises).
Monies owing under a judgment are a debt and it may also be open to seek to instigate insolvency proceedings for non-payment (applying to make an individual bankrupt or a corporate entity insolvent).
In relation to an individual, the process involves first serving a statutory demand requiring the judgment debtor to pay the debt. The debt would need to be above a prescribed amount, at the time of writing £5,000. 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 their 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 £750 (at the time of writing) and, 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 creditor may also 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 power 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 are different depending on the circumstances of each case but there are typically time limits so early assessment of the benefits of this strategy is very important.
Appointment of a Receiver
Whilst a relatively unusual enforcement option, a judgment creditor may be able to apply to the court seeking 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 the 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 and so often it is 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 Proceedings
It may also be open 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 the 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 often viewed as a last-resort remedy where there is a history of disobedience of court orders in ongoing proceedings.
As discussed above, a judgment creditor may apply to the court seeking an order freezing the judgment debtor's assets pending enforcement. This is in an attempt to avoid the assets being dissipated (used where it can be shown there is a risk of dissipation).
The typical costs involved and 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 a relatively straightforward process and can usually be achieved in a relatively cost-effective manner.
What can increase the time and expense is any challenge to the method of enforcement and the rationale for that challenge. This is particularly the case in relation to seeking an order of sale having obtained a charging order. Whilst a charging order may assist to safeguard the asset in question (and is therefore likely worth considering obtaining for this reason), in order to sell the asset, the judgment creditor will also need to apply for an order of sale. Such an application can often be hotly disputed. This is particularly the case if the application for an order of sale involves a family home, there is limited equity in the property or the property is jointly owned.
Equally, it is important to note that insolvency proceedings require a professional person to be appointed (the trustee in bankruptcy, administrator or liquidator), who will be paid out of the estate of the judgment debtor, reducing the amount of assets available for distribution. There may be other calls on the debtor's assets by other parties who have priority; for example, secured or preferential creditors. The assets that are available for distribution to unsecured creditors are then distributed pari passu (ie, pro rata to the level of debt). Often in insolvency proceedings unsecured creditors only receive a small proportion of the debt they are owed.
Ultimately, in deciding the correct options for enforcement, it is essential to understand the nature and value of the judgment debtor's assets and to consider the size of 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 then that may make it 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 the property. 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.
It is for this reason that a judgment creditor may pursue a number of enforcement routes to best protect itself and maximise its prospects.
As discussed in 1 Identifying Assets in the Jurisdiction, a judgment creditor has the option to seek an information order from the court to ascertain the judgment debtor's financial position. This will require the judgment debtor (or director of a company) to attend court and give disclosure of their financial position. This will take place under oath. The court order requiring attendance will, however, need to be personally served on the judgment debtor.
There are two main ways of challenging enforcement on the basis: (i) challenging the enforceability of the judgment itself and (ii) challenging the application for enforcement by a particular route.
Challenging the Enforceability of the Judgment
A main way to challenge the enforceability of the judgment is along the basis that the court either did not have jurisdiction over the matter or the judgment is not final and still being considered by the court. The following are by way of example.
Challenging the Method of Enforcement
Such challenges often take place on the basis that either there are questions over the ownership of the asset and/or the prejudice that will be caused to the judgment debtor if the method of enforcement is allowed (allowing the judgment debtor further time to pay).
A judgment of the Courts of England and Wales that requires a defendant to pay a sum of money or requires the defendant to act in a certain way is a form of judgment that can be enforced in the Courts of England and Wales (subject, of course, to any challenges to enforcement).
Further, whilst a judgment for declaratory relief cannot itself be enforced (on the basis that there is nothing to enforce), in practice it may be possible to enforce the judgment if the defendant acts contrary to the declaration. As discussed above, this would usually take place by way of commencing new proceedings on the basis of the court's declaration and then seek to enforce the judgment in those new proceedings.
There exists a central register of judgments. The relevant register is called the Register of Judgments, Orders and Fines for England & Wales. Both County Court and High Court judgments stay on the register for a period of six years. However, if the judgment debtor pays within one month, it is possible to get the judgment removed from the register. Further, if the judgment debtor pays after one month, it is possible to have the record of the judgment marked 'satisfied'.
There are broadly four different regimes for the enforcement of foreign civil and commercial judgments in England and Wales. The state of origin of the judgment, the date of the judgment and the subject matter of the judgment determine which regime applies.
European Regime for EU/EFTA Court Judgments
The main European regime comprises three (very slightly) different instruments:
The applicability of these European regimes going forward will depend upon the terms by which the UK leaves the EU. In particular, if the UK leaves the EU without a withdrawal agreement, it may no longer be possible to enforce foreign judgments in England and Wales using any of these regimes.
Hague Choice of Court Convention 2005 (Hague)
This convention provides for enforcement of judgments based on exclusive choice of court agreements, concluded on or after 1 October 2015, from signatory states. The ratified signatories to the convention are currently the EU, Singapore, Mexico and Montenegro."
The Statutory Regimes
In this regard, the Administration of Justice Act 1920 deals with enforcement of judgments from a large number of Commonwealth states. For example, Bermuda, British Virgin Islands, Kenya, Malaysia, New Zealand, Singapore, Tanzania and Zimbabwe. Further, the Foreign Judgments (Reciprocal Enforcement) Act 1933 deals with enforcement of judgments from Austria, Canada, Isle of Man, Israel, Jersey, India, Pakistan, Suriname and Tonga.
The Common Law Position
Enforcement of judgments from states with which the UK has no treaty arrangements for enforcement – notably the USA, China and Russia – will need to be enforced in England and Wales under English common law.
Following applying the relevant regime and obtaining a judgment that is enforceable in England and Wales, it is then open to consider the same domestic enforcement options discussed above.
Currently it is usually easier to enforce a judgment under Brussels (recast) than under any other regime (this may, however, change following the UK leaving the EU). Under Brussels (recast), there is no requirement for judicial oversight before domestic enforcement steps are taken. Further, recognition of judgments under that regime is an administrative process, undertaken by court staff.
Under Brussels 2001, Lugano, Hague 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 position, no foreign judgment may be enforced. Instead, the party enforcing the judgment will first need to commence new proceedings in England or Wales suing on the foreign judgment as a debt (usually applying for summary judgment on the debt claim). Further, 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. It is therefore difficult to generalise. However, there are certain categories of judgment that will not be enforced or that will likely cause difficulties (in terms of enforcement).
For judgments that fall under Brussels (recast), the process for creating a judgment that can be enforced is administrative, with usually 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, that the judgment is enforceable (Article 53 of Brussels (recast)). Translations into English are also required by the English 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 (which varies depending which regime applies). No notice need be given to the judgment debtor.
For judgments within Hague, an application must be made for registration, as set out in the previous paragraph. The evidence required in support of the application is set out in Article 13 of the convention. No notice of the application to register need be given to the judgment debtor.
Judgments that fall under the 1920 or 1933 Acts must also be registered. The 1933 Act prescribes in more detail than the 1920 Act the evidence 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 also strict time limits that need to be adhered to.
Post-registration Requirements – European, Hague 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:
Common Law Enforcement – Where No Other Regime Applies
Under the common law, a fresh claim in the Courts of England and Wales must be commenced and a domestic judgment obtained before any enforcement can take place. The judgment creditor will usually apply for summary judgment in the new domestic proceedings (under Civil Procedure Rule 24), 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 one of the objections to recognition. These are dealt with in more detail under 3.6 Challenging Enforcement of Foreign Judgments. Examples are that the defendant was not present within the jurisdiction of the foreign court and did not submit to its jurisdiction, the judgment is contrary to English public policy or resulted from an unfair trial or recognition is prevented by the European Convention on Human Rights and the judgment was obtained by fraud or in breach of contract.
Under Brussels (recast), taking the necessary steps to be in a position to start domestic enforcement action should in theory be relatively inexpensive and swift. This is, however, subject always 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/European Free Trade Association judgments, Hague and the statutory regimes), it may take a few weeks before enforcement procedures may 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 to 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 defendant, even if ultimately unsuccessful, will delay the process significantly, and increase the cost.
Routes to challenge enforcement depend on which regime applies to the particular judgment.
Under the European Regime
There are limited grounds for challenging enforcement. A judgment will, by way of example, not be recognised if (i) recognition is manifestly contrary to UK public policy, or (ii) the judgment:
Under the Hague Regime
Fraud may be a ground for refusing recognition. Other grounds for refusing recognition are as follows.
Under the Statutory Regime
Examples of grounds for challenging registration include the following.
Under the 1920 Act
No judgment may be registered (so registration may be set aside) if:
Under the 1933 Act
Registration must be set aside if:
Registration may be set aside if the matter had, prior to the date of the original judgment, 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.
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).
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. Further, 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. Further, 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.
In terms of foreign awards, these 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 State may, on the basis of reciprocity, declare that it will apply the 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. The New York Convention 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. Further, 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 '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 2019, there are 160 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
In general terms, the variation in approach depends on whether the award is a domestic or foreign award and, if 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 below).
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.
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 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.
In terms of enforcing a foreign award, if a particular convention or statute applies to the enforcement, 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 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 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.
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 either 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:
Permission to serve the Arbitration Claim form out of the jurisdiction may also be required depending on where the defendant(s) are based.
The application can be made ex parte. The court will then either (i) grant leave to enforce the award or (ii) 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.
As discussed above, making an application to the Courts of England and Wales for leave to enforce an 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 defendants and enforcement is then disputed. A summary procedure is available to a party seeking to enforce when there are no objections.
The costs involve the applicable court fee (at the time of writing, currently £66 in the High Court or £44 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.
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 EU 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). Or 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 a consideration of a number of factors, including (i) whether the application for adjournment is bona fide and not merely to delay enforcement, (ii) whether the set-aside application before the seat has realistic prospects of success and (iii) any delay or prejudice by the granting of the adjournment.