RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS PART-2

THE 1933 ACT

Scope: Part I of the 1933 Act applies to most Commonwealth countries not covered by the 1920 Act, including Australia (federal and state courts), Canada (federal courts and provincial courts except Quebec), India, Pakistan, the Channel Islands and the Isle of Man. It applies to certain other states and formerly applied to most Western European states, although between those states it is now superseded by the Brussels Regulation discussed below.

Criteria for enforcement: Under s.2(1) a judgment creditor may apply to the High Court within six years of the date of the judgment (or of any appeal) for the judgment to be registered in England. The Court must order the registration of the judgment, subject to proof of the matters prescribed by the Act. This does not apply to judgments which have been wholly satisfied or could not be enforced by execution in the foreign country. The Act covers judgments or orders made in civil proceedings and those in criminal proceedings for the payment of a sum of money as compensation or damages to the injured party: s.11(1). Unlike the position at common law, this covers both final and conclusive judgments, and also judgments for interim payments: s.1(2)(a). A registered foreign judgment has the same effect as an English judgment: s.2(2).

Section 4(2) provides the grounds on which the foreign court has jurisdiction, which are very close to those at common law except for three matters. First, presence in the country at the time of the proceedings is not sufficient to found jurisdiction under the Act. Secondly, there is only jurisdiction founded on the presence of a company's office in the foreign state where the cause of action against a company arises out of a transaction carried out by that office (unlike at common law where it does not matter if the transaction relates to that office). Thirdly, the Act allows for jurisdiction over an individual with a place of business in that country.

Defences to enforcement: Section 4(1) provides for the grounds on which registration of the judgment must be set aside which are the same as the defences at common law.

Recognition: Section 8 provides that judgments to which the Act applies (whether or not they are registered or are capable of registration) will be recognised as conclusive between the same parties founded on the same action, and can be relied on as a defence or counterclaim. However, this does not apply where the registration of the judgment was been or could be set aside on the compulsory grounds (such as lack of jurisdiction, fraud, lack of notice or public policy). The House of Lords decided in Black Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] A.C. 591 that these provisions were intended to cover recognition of foreign judgments dismissing a claim, so long as the dismissal was on the merits and not on a procedural ground.

BRUSSELS REGULATION

Scope: The Brussels Regulation applies to the recognition and enforcement all judgments in civil and commercial matters given by courts of EU member states. The identical Lugano Convention applies to the same judgments from courts in Iceland, Norway and Switzerland. (See Conflict of laws: jurisdiction for a discussion of the scope of the Regulation and Convention in general.) The Regulation is not restricted to final judgments ordering the payment of money but also covers non-money judgments and interim judgments, such as for final or interim injunctions.

Recognition: Article 33 provides that all judgments covered by the Regulation shall be recognised in all other member states without any special procedure being required. Once recognised, a foreign judgment should be afforded the same effectiveness and authority as a judgment as it has in the member state of origin: Hoffmann v Krieg (145/86) [1988] E.C.R. 645. The member state recognising it should make an order which most closely resembles the order which would be made in the original state.

The judgment shall not be recognised on the following grounds:

  • it is manifestly contrary to public policy of the member state in which recognition is sought: art.34(1);
  • it is a default judgment, the defendant was not served with the document instituting the proceedings in sufficient time so that he could defend the claim, unless the defendant failed to start proceedings to challenge the judgment when it was possible to do so: art.34(2);
  • it is irreconcilable with a judgment given between the same parties in the member state in which recognition is sought: art.34(3);
  • it is irreconcilable with an earlier judgment in another state (an EU member state or not) on the same cause of action and between the same parties, which fulfils the criteria for recognition in the relevant member state: art.34(4);
  • it conflicts with one of the exceptional grounds for jurisdiction under the Regulation, Ch II s.3 (insurance contracts), s.4 (consumer contracts), s.6 (exclusive jurisdiction): art.35(1), or art.72 which preserves pre-existing treaties with third party countries which prevent recognition of judgments based on 'exorbitant' jurisdiction.

Public policy: The public policy defence under the Regulation is intended to apply only in exceptional circumstances, as shown by the use of "manifestly". Recognition and enforcement of the judgment must infringe a fundamental rule of law in the recognising member state: Apostolides v Orams (C-420/07) [2011] Q.B. 519. Where the original court had refused to hear a defendant who was in contempt of court, the recognising court was entitled to consider this a breach of art.6 of the ECHR and refuse recognition of the judgment on the grounds of public policy: Bamberski v Krombach (C-7/98) [2001] Q.B. 709. There is no separate "fraud" defence to recognition under the Regulation. Alleged fraud by the original court could theoretically infringe public policy of the recognising state, but this will be very difficult in practice, since all member states allow a party who alleges fraud to bring proceedings to challenge the judgment. It will therefore not be manifestly contrary to public policy to recognise the judgment in another state. For this reason in Interdesco SA v Nullifire Ltd [1992] 1 Lloyd's Rep. 180, it was held that the English court would not refuse enforcement of a French judgment for alleged fraud, even with evidence newly discovered since the trial, because the debtor had a remedy in the French courts.

Right to defend: Article 34(2) applies to all judgments in default of appearance, which is judged autonomously and not defined with strict reference to the law of the original court: Hendrikman v Magenta Druck & Verlag GmbH (C-78/95) [1997] Q.B. 426. The Court considers the way in which service was effected (whether or not it complied with the law of the original state on service) and whether the defendant had sufficient time and opportunity to conduct his defence. If the defendant has found out about the proceedings, the onus is on him to apply to set aside the judgment in the original court, where such a procedure exists and could be used.