In Part 1 of this two-part blog series on recognition and enforcement of foreign judgments, Alex Cornelius outlines the recent decision of Kerr J in Olsen v Finansiel Stabilitet A/S [2025] EWHC 42 (KB). Part 2 will provide a helpful practical guide to the main avenues for enforcing foreign judgments in England and Wales.

Olsen v Finansiel Stabilitet A/S [2025] EWHC 42 (KB), Kerr J, 16 January 2025

One aspect of this case that will not be discussed is the attempted reliance on a case that did not exist. On this point, the reader is referred to paragraph 102 of the judgment onwards. A number of cases involving similar errors have been publicised recently. It is not clear how the appellants came across this fictional case, but it was likely AI-generated. Although Kerr J declined to cause a summons for contempt of court to be issued, he did indicate that litigants in person cannot expect to be treated any differently to represented parties when it comes to checking the authenticity of authorities they seek to rely upon.

Background

The appellants had set up a renewable energy company in Denmark in 2003 and borrowed money from a bank. The loans were subsequently transferred to the respondent bank and the appellants were guarantors of those loans. The business later failed and went into compulsory liquidation. The respondent commenced proceedings in Denmark in November 2011 seeking to enforce the guarantee.

Although the appellants had already moved to London in May 2011, they participated in the Danish proceedings and gave evidence. On 16 August 2013, the court found them liable under the guarantees and entered judgment against them. Importantly, they gave their full London address, and this was recorded in the judgment.

The appellants attempted to appeal but never paid the fee such that their appeal did not proceed. However, it seems that the appeal was not actually dismissed until May 2015. After its dismissal, the respondent attempted to enforce the judgment but apparently its enquiry agents could not locate the appellants’ permanent residential address in England. Therefore, they decided to wait until the appellants had returned to Denmark, but it was seemingly only when the limitation period for the debt was fast approaching that they realised was this not going to happen and sought to enforce the judgment in England.

Two days before the Danish limitation period expired an ex parte application was made in the King’s Bench Division. Master Cook granted the registration order on 16 August 2023, giving the appellants two months from service of the order to appeal and providing that the judgment could not be enforced in that period. The order was eventually served on the appellants at their flat in Guildford on 25 March 2024. They duly appealed within the two-month period.

Unfortunately, some confusion was created by the respondent overlooking the fact that the appellants did not need permission to appeal, leading to an unnecessary permission to appeal hearing. Pursuant to CPR 74.8(2) they could appeal as of right because they had no right to make representations to the court below and the appeal against the registration order was the only way to challenge it.

The applicable EU Law

The Danish proceedings had been commenced before 10 January 2015 meaning that the 2001 Brussels Regulation EC 44/2001 (“the Judgments Regulation”) applied. As a reminder to the reader, the Judgments Regulation was designed to assist the free movement of judgments by providing a quick and efficient way to recognise and enforce judgments in other Member States. The rationale behind the regime was that the principle of mutual trust justifies a virtually automatic recognition process where the court asked to recognise a judgment merely checks that the documents are in order and is forbidden from reviewing the substance of the judgment (Recital 17 and Article 36).

Accordingly, Article 38 of the Judgments Regulation provides that:

  • “(1) A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.”

Article 40 sets out the procedure for applying for a declaration of enforceability and specifies the documents which must be included with the application. The required documents are an authentic copy of the judgment and a certificate of enforceability from the court that gave the judgment containing some basic information about the case (Articles 53 to 55 and Annex V). If required, these must be accompanied by a certified translation.

Articles 34 & 35 contain the only defences to recognition, and it is for a defendant to raise them on an appeal against enforceability. The grounds for non-recognition under Article 34 are (1) public policy, (2) default judgments where service of the originating process was not validly effected, (3) an irreconcilable judgment given in the Member State where recognition is sought or (4) an earlier irreconcilable judgment given in any other state involving the same cause of action between the same parties which itself meets the criteria for recognition. Article 35 prevents recognition or enforcement of judgment which do not otherwise comply with the jurisdiction provisions of the Judgments Regulation.

The grounds of appeal

The first grounds of appeal were (1) alleged non-compliance with the formal requirements and (2) public policy arguments. The appellant’s challenge to the formalities of registration was unsuccessful as the required documents had been produced before Master Cook. Failures such as the use of the wrong logo and lack of notarisation and ‘apostille’ did not invalidate the registration because the same did not breach the requirements laid down by the Judgments Regulation or CPR Part 74. Furthermore, the appellants’ public policy arguments failed as there was nothing unfair about the proceedings in which the judgment was given. The public policy defence is interpreted strictly and requires infringement of a fundamental principle that amounts to a manifest breach of a rule of law regarded as essential in the legal order of the receiving state. Readers are referred to the case of Krombach v Bamberski C-7/98 (2000) for an illustration of the defence and how it is to be applied. In that case, the French Court had refused to allow Mr Krombach to be defended by a lawyer because he did not appear in person at the hearing. The Court of Justice stated that the right to a fair trial was a fundamental right, and the German court (where recognition was sought) was entitled to take this infringement into account when applying the public policy defence.

Limitation under Danish law

These determinations left only the argument on whether the Danish limitation period had expired and what effect this had. Article 38 stipulates that a judgment will only be enforced in another Member State when it is enforceable in the Member State where it was given. It was common ground that the Danish Limitation Act 2015 provided for a 10-year limitation period for the enforcement of a debt established by a judgment. The Danish judgment was given on 16 August 2013. The day on which judgment is given counts as part of that period but there was a dispute as to whether the 10-year-period expired at midnight on 15 August 2023 or whether enforcement was permissible on 16 August 2023 (the day on which Master Cook granted the registration order). After careful consideration of the text of the Danish Limitation Act, Kerr J held that 16 August 2023 was included within the limitation period. This is comparable to the position under the CPR where, for example, the 4-month period for serving a claim form issued on 1 January would expire on 1 May, rather than 30 April. This meant that the respondent had until midnight on 16 August 2023 to seek a registration order. Therefore, the registration order had been properly made by Master Cook because the Danish judgment was enforceable at the time it was made. However, the Danish judgment had ceased to be enforceable in Denmark from 17 August 2023.

The respondent argued that this was irrelevant because they wanted to enforce the registered English judgment which was enforceable like any other English judgment and now subject to the English rules of limitation under Section 24 of the Limitation Act 1980. Reference was made to the case of Coursier v Fortis Bank SA C-267/97 (1999) where the Court of Justice decided that a judgment given in France could potentially be enforced in Luxembourg even though French insolvency law prevented execution of the judgment in France. There was no suggestion in that case that the debt had been extinguished by limitation. Enforceability in formal terms was to be distinguished from execution which was left to the domestic law of the Member State addressed.

If the respondent’s argument was correct, then they would have acquired an extra six years to enforce the judgment and would have escaped the consequences of leaving matters to the last minute.

Note that there appeared to be some confusion regarding limitation and the enforcement of judgments. Perhaps this stemmed from considering the difference between enforcing a foreign judgment under the common law rules which requires a fresh action on the judgment and enforcement under the EU rules which does not (a point returned to below).

Section 24 of the Limitation Act 1980 provides:

“Time limit for actions to enforce judgments.

  • (1) An action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.

  • (2) No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.”

Despite the title of the section, the text makes it clear that it refers only to an action on a judgment, which is not the same as enforcement of a judgment. As the House of Lords made clear in Lowsley v Forbes [1998] UKHL 34, s.24 prevents the recovery of interest on a judgment debt after six years, but it does not prevent execution of a judgment which is not subject to a limitation period. Instead, judgment debtors are protected, at least for some methods of enforcement, by CPR 83 which provides that no writ of execution can be issued without permission of the court after six years from the date of judgment. Permission will only be granted in exceptional circumstances (see Patel v Singh [2002] EWCA Civ 1938.)

This only made the respondent’s arguments more unpalatable because it would have meant that obtaining registration of the Danish judgment would have stopped the limitation clock and given the respondent potentially unlimited time to enforce it, depending on the assets of the appellants and the corresponding means of enforcement pursued. This is of significance to a judgment creditor because the requirement for permission does not apply to applications for charging orders or third-party debt orders. Instead, the lapse of time is merely a factor for the court to consider when exercising its discretion to make a final order (see Westacre Investments Inc v Yugoimport SDPR [2009] 1 All ER (Comm) 780).

Outcome of the appeal

Ultimately, the respondent’s arguments on this point were rejected by the judge. Article 38 means what it says, “A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there” (emphasis added).

Kerr J held that it was “clear” that enforceability of a judgment in the originating state was “a pre-condition” of recognition in the receiving state. Although a slightly different procedure was provided for the United Kingdom under Article 38(2) requiring registration of the judgment rather than the exequatur procedures of the civil law Member States, this did not change the substantive law. In accordance with paragraph 2 of Schedule 1 of the Judgments Regulation, once a judgment is registered, the registering court is deemed as having given it on the date of the original judgment, in this case 16 August 2013. Therefore, on 17 August 2023, the judgment ceased to be enforceable in both Denmark and England.

The Foreign Limitation Periods Act 1984 was irrelevant because it applies only to proceedings ‘brought’ in England and Wales. Seeking to register a foreign judgment under the Judgments Regulation does not amount to ‘bringing proceedings’.

This final conclusion, the only issue decided in favour of the appellants, meant that the respondents had succeeded in establishing that the registration order was validly made but gained no benefit from it because, almost as soon as it had been registered, the judgment had ceased to be enforceable. As Kerr J pointed out, it is difficult to feel any sympathy for the respondents who had had many years to try to enforce the judgment in England. The lesson to be learned from the numerous decisions on service of claim form applies equally here: do not leave things to the last minute.

Further lessons and practical guidance will be given in the forthcoming Part 2 of this series on recognition and enforcement of foreign judgments – coming soon.