In Part 2 of this two-part series on recognition and enforcement of foreign judgments, Alex Cornelius provides practical guidance on how judgments obtained in foreign courts can be enforced in England and Wales under the pre-Brexit European provisions, specific statutory regimes and the common law.

Part 1 of this series, considering the decision of Kerr J in Olsen v Finansiel Stabilitet A/S [2025] EWHC 42 (KB), which sets the backdrop for the issues discussed in this Part is available here.

A Practical Guide to Enforcement of Foreign Judgments

Enforcement of judgments under the Judgments Regulation / Brussels Recast

There will undoubtedly be very few cases remaining where the 2001 Brussels Regulation EC 44/2001 (“the Judgments Regulation”) remains applicable. Any such proceedings would need to have been commenced prior to 10 January 2015. However, there may very well be a few more claims yet to be concluded which are governed by the 2012 Brussels (Recast) Regulation EC 1215/2012 (“the Recast Regulation”). This will include proceedings which were commenced in a Member State after 10 January 2015 but prior to 1 January 2021.

The principles applicable under the Judgments Regulation (Brussels 1) apply equally to the Recast Regulation (Brussels 1A) with the only difference when it comes to enforcement of judgments being the abolition of the exequatur procedure. Instead, the judgment creditor is merely required to produce a copy of the judgment and a certificate from the court of origin containing some basic details about the case (Article 42 and Annex 1). The Recast Regulation removed the requirement for registration of EU judgments before they can be enforced.

As Kerr J noted in paragraph 88 of Olsen a distinction is to be drawn between enforceability in principle and enforcement in practice. The fact that a judgment cannot be practically enforced in the state of origin through execution does not prevent it being enforceable as a matter of EU law.

It may be wise to obtain expert evidence on foreign law if there is any doubt about the relevant limitation period to ensure that there are no nasty surprises when it comes to enforcement.

It is the old CPR 74 that applies to enforcement of EU judgments, and this can be found in the 2020 White Book (or the 2014 White Book for the applicable CPR 74 when it is a 2001 Regulation case). The judgment creditor must serve the Annex 1 certificate and a copy of the judgment on the judgment debtor and then they are entitled to enforce the judgment as if it were an English one. It is for the judgment debtor to then apply for refusal of enforcement if they consider they can establish one of the available defences under the Regulations. Either party can then appeal as of right against a decision on such an application.

Enforcement of foreign judgments under the common law

Given the limited number of proceedings to which the Brussels regime will now apply, this article would not be complete without consideration of the procedure for enforcement of foreign judgments under the post-Brexit (or pre-Brussels) regime. Outside of the Brussels Regulations (unless a specific statutory regime applies – as to which, see below) it is necessary to refer to the common law rules. Here the position differs significantly because a foreign judgment cannot be enforced directly in England. As Professor Adrian Briggs KC (Emeritus Professor of Private International Law, University of Oxford) has said “judicial adjudication is an exercise of state sovereignty” (Briggs, The Conflict of Laws, 5th Ed. at 112) and state sovereignty generally ends at the border of the state.

Instead, it is the obligation to pay the sum for which judgment has been given that forms the basis of an action on the judgment in England (Rubin v Eurofinance [2012] UKSC 46). The resulting English judgment is what can then be enforced. Alternatively, the foreign judgment may be relied upon as a defence to an action or as creating an issue estoppel on a matter of law or fact in any separate proceedings brought within this jurisdiction (The Sennar (No 2) [1985] 1 WLR 490).

The judgment must be for a definite sum of money, but not a judgment for taxes or penalties (Government of India v Taylor [1955] AC 49) and it must be final and conclusive on the merits. Being final simply means that the judgment cannot be varied by the court that gave it, and it will still be final even if it can be appealed (Blohn v Desser [1962] 2 QB 116).

The foreign court that gave judgment must have had jurisdiction according to English private international law and this is defined narrowly to require that the judgment debtor was “present” in the foreign county when proceedings were commenced or submitted to the jurisdiction (Adams v Cape Industries Plc [1990] Ch 443). Therefore, the concept of international jurisdiction is significantly more restrictive than the jurisdiction English courts afford themselves.

For a company to be present in a jurisdiction, Adams establishes that this requires a fixed place of business where the company carries outs its own business or a fixed place of business where a representative carries out the company’s business (not its own). Note that this concept has not been affected by the internet because having a website accessible in a country where orders from consumers are accepted does not make a company present in that country (Lucasfilm Ltd v Ainsworth [2009] EWCA Civ 1328).

Submission to the jurisdiction is a factual question determined by English law (Rubin v Eurofinance SA [2012] UKSC 46) and requires a party to have voluntarily taken part in the foreign proceedings or to have agreed to submit in advance to the foreign court’s jurisdiction. However, by virtue of s.33 of the Civil Jurisdiction and Judgments Act 1982 a party that appears in proceedings solely to contest jurisdiction is not taken to have submitted to the jurisdiction.

Defences

There are a number of defences that can be pleaded by a judgment debtor. Not included amongst them are allegations that the foreign court made a bad decision and got the facts or the law wrong. As with the former EU rules, it is not open for the English court to review the merits of the foreign decision (Godard v Gray (1870) LR6 QB 139).

A foreign judgment can be impeached for fraud, whether it is fraud on the court (such as a party forging evidence) or fraud by the court (such as a judge receiving a bribe) and it does not matter that this argument was raised and dismissed in the foreign court or that there is no new evidence available (Owens Bank Ltd v Bracco [1992] 2 AC 443).

A judgment debtor can also try to argue that it would be contrary to English public policy to recognise the judgment, but this is very difficult to establish and there are very few cases where this argument has been successful. For an example of the kind of facts needed to establish the defence, see Kuwait Airways v Iraqi Airways (Nos 4&5) [2002] 2 AC 883 where it was held to be contrary to English public policy to recognise an Iraqi resolution annexing Kuwait because it was a gross violation of international law.

A defence which is related but distinct, because it arises by virtue of primary legislation, arises where recognition of the foreign judgment would put the English court in breach of the Human Rights Act 1998. This is most likely to arise if the foreign proceedings leading to the judgment were conducted so unfairly that the right to a fair trial under Article 6 ECHR was violated. It can apply even if the foreign country is not a signatory to the Convention, but the breach of Article 6 would have to be “flagrant” before recognition could be refused: Government of the United States of America v Montgomery (No.2) [2004] UKHL 37.

Another defence which is difficult to untangle from public policy and the Human Rights Act 1998 is the defence on grounds that the foreign proceedings were contrary to natural justice. The Court of Appeal in Adams held that this goes beyond receiving no notice of proceedings or having insufficient time to prepare a defence to include any situation that was contrary to an English court’s conception of substantial justice. In that case, the Texan judge had not assessed damages based on the evidence for each Claimant but instead determined that the average recovery should be at a given level and left it to Claimant counsel to allocate Claimants to bands to determine how much they should receive. Adams left open the question of whether it matters that a remedy could be sought in the foreign court.

Procedure

As the judgment creditor is bringing an action on the foreign judgment they will need to issue and serve proceedings in the normal way. Most likely, permission to serve out of the jurisdiction will be required under CPR PD 6B, but there is a specific gateway for the enforcement of judgments in paragraph 10. Satisfying the Court that England is the proper place to bring the claim is unlikely to pose any obstacle as there is no requirement that the underlying dispute have any connection to England or that there are even any assets in England to execute against: Al Hamed and others v Al Hamed and another company [2024] EWHC 2448 (Comm).

If the judgment debtor fails to file a defence or an acknowledgment of service, then the judgment creditor can proceed to apply for default judgment in the usual way. If a defence is filed, then the judgment creditor’s best bet would be to apply for summary judgment leaving it to the debtor to try to argue they have a real prospect of successfully raising one of the available defences.

Since an action on the judgment is being brought, the judgment creditor must ensure they do not fall foul of the six-year limitation period in s.24 of the Limitation Act 1980.

Specific statutory regimes

If you have obtained a judgment in your favour, then it is advisable to check whether the country of origin is one to which either of the two relevant statutes applies, each is dealt with in turn. These are based on the fundamental principle of reciprocity where judgments of foreign courts will only be recognised if the county where judgment was given has made reciprocal arrangements to give effect to English judgments. Unlike the position at common law, the foreign judgment is enforced directly as if it were an English judgment once it has been registered. Parliament has decided that foreign judgments that meet the statutory criteria are entitled to be enforced directly in England and Wales.

The Administration of Justice Act 1920

A full list of countries covered by the Administration of Justice Act 1920 (“the 1920 Act”) can be found in Annex 9 of the King’s Bench Guide, but it notably includes New Zealand, Nigeria, Singapore, the Cayman Islands and Malaysia. The judgment creditor may apply to the High Court for registration within 12 months of the date of judgment or such longer period as the court may allow.

A judgment is defined as any judgment or order given or made by a court in any civil proceedings where a sum of money is made payable: section 12(1), but the Act does not permit registration of a judgment on a judgment (see Strategic Technologies PTE Ltd v Procurement Bureau of the Republic of China Ministry of National Defence [2020] EWCA Civ 1604, where an appeal was allowed against the decision to register a Cayman Islands judgment given in a common law action on a Singaporean judgment).

Registration is not as of right but discretionary with the Act providing that registration may be ordered if the court thinks it just and convenient to do so: section 9(1). The available defences broadly mirror the common law approach such that registration will not be ordered if the judgment debtor establishes fraud, if judgment was entered in default and the debtor was not served with proceedings, if registration would be contrary to public policy, if an appeal is pending in the court of origin or if the court is satisfied that the judgment debtor is entitled to and does intend to appeal in the court of origin: section 9(2). Natural justice is not mentioned as a separate defence, but such a breach would no doubt be dealt with under public policy or it would be concluded that it was not just or convenient to register the judgment.

The fact that registration must be refused if an appeal is pending could be problematic and open to abuse by judgment debtors if the country of origin has a slow civil justice system and the debtor is able to lengthen the appeal process through delaying tactics. However, there is no “entitlement to appeal” if leave is required and an appeal cannot be said to be pending until leave is granted (Tenaga Nasional Bhd v Frazer-Nash Research Ltd [2019] 1 WLR 946).

Once the judgment has been registered, it takes effect in England as if it were an English judgment from the date of registration: section 9(3)(a), so it can be enforced in the same manner. The judgment creditor is given a statutory entitlement to recover their reasonable costs of and incidental to registration: section 9(3)(c)).

One point to be aware of is that if a judgment creditor brings a common law action on the judgment when they could have registered it under the Act then they would not be entitled to recover their costs of that action unless they had tried but failed to get it registered or the court orders otherwise: section 9(5). So, if you are seeking to enforce a judgment from one of the countries covered by the Act then make sure registration is your priority.

Procedure

Part 74 governs applications for registration and states that an application for registration must be made to the High Court and may be made without notice (CPR 74.3) It will need to be accompanied by written evidence exhibiting the judgment or an authenticated copy (an authenticated translation will be required if the judgment is not in English) alongside an explanation of why the judgment creditor is entitled to enforce the judgment and a breakdown of any interest recoverable under the law of the country of origin: CPR 74.4(1)-(2).  Under CPR 74.4(3) the written evidence must also state that the judgment is not one which cannot be registered under s.9 of the Act or is caught by s.5 of the Protection of Trading Interest Act 1980 (which prohibits the registration of judgments for amounts arrived at by multiplying the sum assessed as compensation for damage suffered).

If the registration order was obtained without notice it must be served on the judgment debtor and contain a statement of the right to apply to set it aside alongside the period in which such an application can be made. No enforcement measures can be taken before the end of that period save to preserve property: CPR 74.6. If the judgment debtor wants to extend the time period for applying to set aside registration they must apply before that period expires: CPR 74.7(2). When considering a set aside application the court is entitled to conduct a full re-hearing and exercise its discretion to order registration afresh (Tenagaat [31]).

Foreign Judgments (Reciprocal Enforcement) Act 1933

The Foreign Judgments (Reciprocal Enforcement) Act 1933 (“the 1933 Act”) applies to certain courts in countries to which the Act has been extended by bilateral treaty which means that the details of which courts it applies to cannot be found in the Act itself but rather the bilateral treaties and the statutory instruments that give effect to them.

The 1933 Act applies to judgments of certain courts in Guernsey, Jersey, the Isle of Man, Australia, Canada (except Quebec), Israel, India, Pakistan, Suriname, Tonga, Austria, Belgium, France, Germany, Italy, the Netherlands and Norway.

A judgment is defined by s.11 as a “judgment or order given or made by a court in any civil proceedings, or a judgment or order given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party” but the width of that definition is then cut down by s.1(2) and s.1(2)(A), which exclude from the scope of the 1933 Act judgments that are not final and conclusive (except interim payments), judgments for the payment of taxes and fines, judgments on judgments and judgments on appeal from non-recognised courts.

A judgment must not be registered if it has been wholly satisfied or could not be enforced by execution in the country of origin: section 2(1). On the latter point, the 1933 Act differs from the Brussels regime where the fact that a judgment cannot be executed does not mean it is unenforceable (as discussed above).

Unlike the 1920 Act, the court is given no discretion to refuse registration on the basis that it would not be just and convenient to do so.

Once the judgment has been registered and the judgment debtor has been served with notice of registration, they may apply to have registration set aside on the basis of one of the grounds in s.4 of the 1933 Act.

Registration must be set aside if  judgment is not one within the definition given by the 1933 Act, if the court of origin had no jurisdiction, if judgment was obtained by fraud, if enforcing the judgment would be contrary to public policy, if the judgment debtor was not given sufficient notice to enable them to prepare a defence and did not appear or if the rights under the judgment are not vested in the person who applied for registration. Once again, natural justice is not mentioned expressly but no doubt this would be dealt with under public policy.

Registration may be set aside if the subject matter of the judgment is inconsistent with an earlier judgment given by a court with jurisdiction.

Jurisdiction is defined by s4(2) such as to make it clear that the statutory regime is aligned with the common law concept of international jurisdiction rather than being concerned with whether the court of origin had jurisdiction under its own law. Albeit residence rather than presence is the key concept and for a company it must have its principal place of business (not just a place of business) in the foreign country or else a regular place of business through or at which a transaction with which proceedings were concerned was effected.

Importantly, if the 1933 Act applies a judgment creditor must use it pursuant to s.6, which states that no common law action can be brought if registration could be sought.

Procedure

Like with the 1920 Act, the judgment creditor can apply without notice to the High Court for registration of the judgment under CPR 74 attaching the evidence required by CPR 74.4 to the application. It is then for the judgment debtor to apply to have the registration order set aside if they consider they can establish one of the statutory grounds for doing so.

Pursuant to s.2(1), the judgment creditor has six years from the date of judgment or from the date of the last judgment in appeal proceedings to apply to the High Court for registration.

Conclusions

Before deciding what enforcement avenue to pursue make sure you have determined what regime applies. If proceedings were instituted within the EU before midnight on 31 December 2020, then the EU regime is still applicable. Remember that the judgment must be enforceable in the state of origin so watch out for limitation, or any other restrictions on enforceability in the state of origin.

Outside of the EU, or for proceedings within the EU instituted post-Brexit, consider whether a judgment you are seeking to enforce was obtained in a country that is subject to either the 1920 or 1933 Acts because there are clear costs advantages to registration under the 1920 Act and registration under the 1933 Act is mandatory if applicable.

If you are required to fall back on the common law, then remember that the circumstances in which a foreign court will be considered to have had jurisdiction are narrowly defined and do not mirror the circumstances in which English courts will assert jurisdiction.