Recognition and enforcement of judgments in civil and commercial matters in the UK jurisdictions

Appeals to the UK Courts

Foreign judgments must be brought to the relevant UK courts before enforcement proceedings can begin. The High Court of England and Wales (Queen’s Bench Division), Court of Session in Scotland and High Court of Northern Ireland are the relevant courts in which to bring an application for the recognition and enforcement of a foreign judgment in each respective part of the UK.

Rules in England and Wales

Common law relating to recognition and enforcement of judgments applies where the originating jurisdictions do not have applicable treaties in place with the UK, or in the absence of any applicable UK statute.

At common law, a foreign judgment is not directly enforceable in the English or Welsh courts, but can be the subject of a fresh action. In the High Court, summary judgment procedures will usually be available. Any judgment obtained will be enforceable in the whole of UK in the same way as any other judgment of a court in the UK.

Courts in England and Wales will not give judgment in such an action where the original court lacked jurisdiction according to the relevant English and Welsh conflict of laws rules (which require the defendant’s assent or submission to the foreign jurisdiction or presence within its territory), nor if the judgment was obtained by fraud or is contrary to public policy or the requirements of natural justice. The judgment must be for a definite sum, be final and must not have been issued in respect of taxes, penalties or multiple damages awards. The leading case on enforcement of judgments at common law, and which summarises the key requirements, is Adams v Cape Industries plc (1990) Ch 433. The Court of Appeal recently issued further guidance on the principle of finality, saying that a foreign judgment will be considered final and binding ‘where it would have precluded the unsuccessful party from bringing fresh proceedings in the [foreign] jurisdiction’ (Joint Stock Company ‘Aeroflot-Russian Airlines’ v Berezovsky and Glushkov [2012] EWHC 317).

Rules in Northern Ireland

Northern Ireland applies the relevant Common Law principles as in England and Wales. The relevant court to bring enforcement action is the High Court of Northern Ireland.

Rules in Scotland

Judgments of countries not falling under one of the treaties are enforced under common law. The process involves raising a fresh action in the Court of Session seeking Decree Conform. This gives effect to the foreign judgment by means of the Scottish Court pronouncing a decree in terms which conform to that of the foreign judgment, for example, in the case of a foreign decree for payment, the Scottish Decree Conform would be a decree for payment of the same amount

A foreign decree is enforced in Scotland only if it is final.

The Court of Session will first decide if the foreign court had jurisdiction. The Court will assess this in an international rather than Scots law context and determine whether the jurisdiction of the court of origin was acceptable or exorbitant and thus not acceptable. The acceptable categories include: jurisdiction on the basis of the residence or presence of the Defender, with temporary physical presence considered sufficient. In the case of a corporate Defender, it will be deemed acceptable if the corporation carries out business in the territory of the court of origin, or if there is prorogation, submission or reconvention (counterclaims).

Exorbitant or unacceptable grounds of jurisdiction include: domicile (in its traditional form) as a ground of jurisdiction in an action of a patrimonial nature, such as an action for payment; nationality; the arrestment of moveables ad fundandam jurisdictionem; the ownership of immovable property in the foreign jurisdiction as grounds for asserting jurisdiction in a case not involving that property.

Another potential exorbitant or unacceptable grounds for jurisdiction is ‘personal service in the foreign jurisdiction where there are no other grounds for jurisdiction’. However, there is an element of doubt as to whether the judgement in Zigal v Buchanan [2018] CSOH; 2020 SCLR 94, is inconsistent with this proposition. The judgement in this case stated ‘This court … recognises that the judgment of a foreign court, which has jurisdiction over a defender by reason of residence in the foreign country at the material time, may be enforced by decree conform … the onus is on the challenger to demonstrate that the service or decree is not valid’.

This was also discussed in the case of Wendal v Moran 1992 S.C.L.R 636, in particular in the commentary provided by the S.C.L.R. at p.642 et seq importantly notes ‘It is respectfully submitted that proceedings for a decree conform are proceedings concerned with the enforcement of a judgment, and so—of course only insofar as enforcement in Scotland was contemplated—the Court of Session had jurisdiction regardless of the domicile of the defender. This would be a potential issue which would need to remain under review moving forward.

Further grounds to refuse recognition and enforcement of a foreign decree include: if a foreign decree is granted in a penal or revenue action; where the decree was obtained by fraud; or the decree is contrary to public policy or the requirements of natural justice. Fraud includes circumstances where the fraudulent behaviour is attributable to the foreign court, the other party to the proceedings, or both.

In considering whether a foreign judgment was obtained by fraud or in circumstances contrary to natural justice, the Court of Session may examine the merits of the case and will apply Scots law in ascertaining fraud, rather than the law of the foreign jurisdiction.

This article was drafted by the UK delegation to the Council of Bars and Law Societies of Europe (CCBE): Law Society of England and Wales, Law Society of Scotland, Law Society of Northern Ireland, Bar Council of England and Wales, Faculty of Advocates and Bar Council of Northern Irel