Individuals who are worth suing usually have their business interests and their assets in more than one jurisdiction. However, the jurisdiction adjudicating a dispute may not necessarily be the jurisdiction in which the defendant has their assets. This makes enforcing a judgment in a different jurisdiction a key consideration when deciding whether to pursue litigation or not.
This article is the first in a series of articles that will explore enforcing foreign judgments and arbitral awards in England and Wales. Let’s start with the enforcement of foreign judgments under the common law, which is a process available to enforce most foreign judgments.
The general rule of enforcing foreign judgements
A foreign court with jurisdiction to make a judgment against the defendant may be enforced by the courts of England and Wales. This involves bringing a fresh action in this jurisdiction against the individual who is resident (and will have assets) for the amount due, provided the judgment is for a debt or definite sum of money and is final and conclusive.
A foreign judgment cannot be impeached (or reopened) for any error either as to fact or law. Note that the grounds on which the foreign judgment may be impeachable include fraud; contrary to public policy; and proceedings in which it was obtained were opposed to natural justice.
The fraud ground
This covers fraud on the part of the party in whose favour the judgment is given or fraud on the part of the court pronouncing the judgment. It extends to every kind of fraudulent conduct.
A foreign judgment can be impeached for fraud even though no newly discovered evidence is produced and even though the fraud was alleged in the foreign proceedings.
Moreover, it is immaterial that the fraud could have been raised in the foreign proceeding but was not raised at that point.
Explaining the public policy ground
The public policy ground extends to an English court’s refusal to recognise or enforce a judgment where the foreign court is corrupt, or the judgment was obtained by the exercise of improper influence on the judges.
However, the principle of comity demands caution against interfering with the procedures of foreign courts. Accordingly, cogent evidence will be required if a foreign judgment is said to be infected in this way.
Natural Justice
It is not contrary to English public policy to refuse to recognise a judgment which is obviously wrong. However, if there is evidence of a perverse refusal by the foreign court to apply the law in a judicial manner, it may be possible to oppose recognition on the ground that the behaviour of the court infringed natural justice.
There are two common challenges relating to this.
First, a defendant must be given the opportunity so that they can put their case in response. A mere procedural defect in the proceedings will not be sufficient. What is required is a substantial denial of justice. However, it is for a defendant to take all available defences in the foreign court. If they are at fault in not doing so, this may not impeach the foreign judgment in England.
Second, the defendant must be given notice of any hearings. If there was service of the notice of hearing on the party in accordance with the relevant foreign law, but actual notice was not given, the question will be whether substantial injustice was caused by the lack of notice. This includes identifying whether the defendant had a remedy in the foreign court.
Human Rights
In addition to the position at common law, there is a right to a fair trial under Article 6 (1) ECHR. There is a duty directly on an English court not to give effect to the judgment of a foreign court where to do so would violate fair trial standards. There is a strong presumption that a country who is a party to the ECHR (or similar) comply with the procedures of the Convention.
This article does not constitute legal advice and you must rely on specific advice that is applicable to your own circumstances. Child & Child has preserved and recovered hundreds of millions of pounds for its clients and is part of a wider network of international lawyers who handle complex, difficult litigation cases.
If you are an individual or international lawyer enquiring as to the enforcement of a foreign judgment, please contact Nick Goldstone, Vikash Savani or Philip Cohen in our Dispute Resolution Team.
If you are an individual enquiring as to the protection of your existing wealth, please contact Rhea Rughani, Colin Glass or Vincenzo Mazzone in our Private Wealth Team.