Enforcement of a Foreign Judgment

It is effortless to get a Judgment always than enforcing it. An applicant who, for instance, successfully sues in Italy for breach of contract and is awarded damages may realize that the defendant has removed all his or her assets to England. The judgment can’t be enforced in Italy, because there are no assets there. The officers charged with the enforcement of judgments in the English legal system will not act on an Italian judgment. The Italian officials can’t act in England. What is the resort to the claimant to act? So to answer this question we need to know the enforcement regime in United Kingdom.

The applicable regime for the enforcement of the Italian judgement is the Brussels Regulation that needs to be considered in order to answer this question. And for better knowledge we should know an overview of the enforcement regime under the Brussels Regulation (i.e. chapter III).This is to help strongsteel Inc who wishes to enforce the Italian judgment against Tony in England.

The relevant Articles are listed below:

Articles 33 -36 of the Brussel Regulation give us opinion about the enforcement regime.

Chapter III sets out the procedures for the international recognition, enforceability and enforcement of judgments. Section 1 provides for the recognition, throughout the EU, of judgments obtained in a Member State. In doing so, this generally abolishes the requirement for exequatur (the need to obtain a declaration of enforceability in the Member State where recognition is sought). Section 2 provides the rules for the enforcement, throughout the EU, of judgments obtained in a Member State. The applicant, seeking enforcement, is required to supply various documents to the enforcement authorities and those authorities are required to refuse enforcement in certain circumstances. Provision is also made for enforcement to be made conditional in certain cases, for example on the provision of security by the applicant. Section 3 contains certain common provisions. In particular provision is made, in certain circumstances, for a review of a judgment given in default of the appearance of the defendant in the Member State of origin (Article 44) and in other cases in the Member State of enforcement where enforcement would be denied on the basis of a breach of the fundamental principles underlying the right to a fair trial (Article 45).

Article 33 gives us “the procedure for making the application shall be governed by the law of the State in which enforcement is sought. The applicant must give an address for service of process within the area of jurisdiction of the court applied to. However, if the law of the State in which enforcement is sought does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem. The documents referred to in Articles 46 and 47 shall be attached to the application”.

Article 34 gives us “The court applied to shall give its decision without delay; the party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application. The application may be refused only for one of the reasons specified in Articles 27 and 28.Under no circumstances may the foreign judgment be reviewed as to its substance”.

Article 35 gives us “The appropriate officer of the court shall without delay bring the decision given on the application to the notice of the applicant in accordance with the procedure laid down by the law of the State in which enforcement is sought”.

Article 36 gives us “If enforcement is authorized, the party against whom enforcement is sought may appeal against the decision within one month of service thereof. If that party is domiciled in a Contracting State other than that in which the decision authorizing enforcement was given, the time for appealing shall be two months and shall run from the date of service, either on him in person or at his residence. No extension of time may be granted on account of distance”.

From these articles it is fairly clear that strongsteel still has its merit to proceed further.

Case analysis:

Krombach v Bamberski [1] (Case for public policy)

The court of the Member State in which enforcement of the judgment was required in this case civil compensation ordered by the Paris Assizes, could not take account in relation to the ‘public policy clause’ of the fact that the court from which the judgment originated based its jurisdiction on the nationality of the victim of the relevant offence.

The court which sought enforcement could not, with respect to a defendant domiciled in the same State and prosecuted for an intentional offence, take account under the ‘public policy clause’ of the fact that the originating court refused to allow the defendant presentation of his defence unless he appeared in person.

Interdesco SA v Nullfire Ltd (Case for fraud )

This cases give us general opinion about Foreign judgment; allegation of fraud; registration of judgment in England; stay of English proceedings sought in France; whether appeal an “ordinary appeal”

Nullfire appealed against an order that a foreign judgment obtained by Interdesco against Nullfire should be registered in the High Court. Interdesco had been ordered, by the French Cour d’ Appel, to pay damages to Interdesco for wrongful termination of an exclusive distribution agreement. Nullfire argued that, as the judgment had been obtained by fraud, its recognition would be contrary to public policy under the ‘Convention on Enforcement of Judgments and jurisdiction in Civil and Commercial Matters 1968 Art.27’. Nullfire had instituted a special appellate procedure in France, “recours en revision” alleging fraud.

Appeal was dismissed in this case. The court could not apply the decision in Abouloff v Oppenheimer & Co (1882-83) L.R. 10 Q.B.D. 259 whereby a debtor could challenge a foreign judgment if there was fraud, because of the terms of Arts.29 and 34 of the Convention which precluded review of the substance of foreign judgments. However, if the defendant wished to bring a fresh action or provide fresh evidence the court might hear the case as long as there was no remedy available in the foreign jurisdiction, Owens Bank v Bracco Financial Times, April 12, 1991. In this case, Nullfire had a remedy in the recours en revision procedure which could take place at any time. This procedure was not an ordinary appeal and therefore stay of proceedings in terms of Art.30 was inappropriate.

Abouloff v Oppenheimer & Co

Where Lord Coleridge CJ said: “where a judgment has been obtained by the fraud of a party to a suit in a foreign country, he cannot prevent the question of fraud from being litigated in the courts of this country, when he seeks to enforce the judgment so obtained. The justice of that proportion is obvious; if it were not so, we should have to disregard a well established rule of law that no man shall take advantage of his own wrong”

This principle was reaffirmed by the House of Lords in Owens bank ltd V Bracco the claimant bank claimed to have lent nine million Swiss francs to the defendant, who received the money in cash against signed documents typed on the note paper of Geneva hotel. Braco resisted a claim in the courts of Saint Vincent for the capital lent and interest, denying that he had ever entered into the transaction. The bank succeeded, and sought to register the judgment in England under the administration of justice act 1920, to be met by an argument based on the banks alleged fraud in making the claim.

In Re Macartney

A Maltese judgment ordering the personal representatives of a deceased putative father to pay perpetual maintenance to the mother of his illegitimate child was refused enforcement in England on three grounds; it was contrary to public policy to enforce an affiliation order not limited to the Childs minority; the cause of action, a posthumous affiliation order, was unknown to English domestic law; and the judgment was not final and conclusive because the Maltese court could vary the amount of the payments.

Maronier v Larmer [2]

Action in negligence in Holland – Delay in proceedings leading to stay – Proceedings reactivated twelve years later – Defendant had no knowledge of reactivated proceedings until judgment registered in England – Defendant had been denied fair trial – Judgment was therefore contrary to English public policy and would not be enforced – ‘Civil Jurisdiction and Judgments Act 1982’ section 2 – European Convention on Human Rights Art 6 – Brussels Convention Art 27(1).

Hoffman v Krieg

A German wife obtained a maintenance order from a German court against her German husband, who was living in Holland. The husband subsequently obtained a divorce from a Dutch court. That divorce judgment, which fell outside the scope of the EEC Judgments Convention, was not recognized by Germany at the relevant time. The wife sought enforcement of the maintenance order and obtained a garnishee order against the husband’s employer. The husband sought the lifting of that order. The Supreme Court of the Netherlands asked the European Court for a preliminary ruling on the EEC Judgments Convention.

Held, that (1) “a foreign decision, which had been granted an enforcement order in one contracting state pursuant to the EEC Judgments Convention Art.31 and which was still enforceable in the state of origin, could not continue to be enforced in the state in which enforcement was sought where, according to the law of that state, enforcement could no longer take place for reasons which fell outside the scope of the Convention”; (2) “a foreign order requiring a husband to pay maintenance to his wife pursuant to his duty to maintain her arising out of marriage, was irreconcilable for the purposes of Art.27(3) of the Convention with a national decision decreeing a divorce between the parties”.For easy understanding we should have to look into New York declaration.

Administration of Justice Act 1920 or Foreign Judgments Act 1933 gives us what are enforceable and if so what defences, if any, can be successfully raised in relation to the declaration.

Defences include; Under the Administration of Justice Act 1920 [3] and subsequent legislation, Judgments achieved in the Superior Courts in many parts of Her Majesty’s Dominions outside the UK may be registered by a parallel procedure to that applicable to Europe.  Under the Foreign Judgments Act 1933 [4] , judgments obtained in the courts of specified foreign countries may also be registered in this country.  The 1933 Act allows the judgments of higher courts in the countries with which the UK has entered into bilateral treaties to be enforced by registration. The States falling under this Act include Guernsey, India, Australia, and Canada. Registration of a judgment pursuant to the 1933 Act will be set aside if the court is satisfied:  The judgment is not a judgment to which the Act applies or was registered in contravention of the provisions of the Act; or  The courts of the Country of the original court had no jurisdiction [5] in the circumstances of the case; or  The judgment debtor being the defendant in the proceedings in the original court did not [6] , receive notice of those proceedings in sufficient time to enable it to defend the proceedings and did not appear; or the judgment was obtained by fraud; or the enforcement of the judgment would be contrary to English public policy; or the rights under the judgment are not vested in the person by whom the application for registration was made.

The judgment may be set aside if the registering court is satisfied that the matter in dispute in the proceedings in the Original Court had previously been the subject of a final and conclusive judgment by a court having jurisdiction in the matter. A judgment of a foreign court recognized by the Act may be registered in England where the foreign judgment is: it should be final and conclusive judgment. For the payment of money, which is not derived from taxes or penal in nature. Given by a superior court of record in the foreign jurisdiction, and not simply arise from an appeal to a superior court. The judgment must not arise from enforcement proceedings stemming from a judgment in another jurisdiction.

English courts are deemed to have jurisdiction under the Act where the defendant in the foreign proceedings submitted to the jurisdiction of English courts, has its principal place of business in the jurisdiction, and has a place of business or an office in the jurisdiction, or agreed that English courts would be the forum for disputes.

Jurisdiction of the foreign court; whether the court that granted the judgment had jurisdiction to do so under English Law.

Adams v Cape Industries;

“the voluntary presence of an individual in a foreign country, whether permanent or temporary and whether or not accompanied by residence, is sufficient to give the courts of that country territorial jurisdiction over him under our rules of private international law”

For the purpose of enforcement of a foreign judgment, a defendant will only be regarded as falling under the jurisdiction of the foreign court where it was present within the jurisdiction or had submitted to such jurisdiction. Until 1979, Cape, an English company, mined and marketed asbestos. Its worldwide marketing subsidiary was another English company, Capasco. It also had a US marketing subsidiary incorporated in Illinois, NAAC. In 1974, some 462 plaintiffs sued Cape, Capasco, NAAC and others in Tyler, Texas, for personal injuries allegedly arising from the installation of asbestos in a factory. These actions were settled. Between 1978 and 1979, a further 206 similar actions were commenced and default judgments entered against Cape and Capasco. In 1978, NAAC ceased to carry on business and other subsidiaries replaced it. The plaintiffs sought to enforce the judgments in England. The defendants denied that the Texas court had jurisdiction over them for the purposes of English law.Held, that the defendants were neither present within the US, nor had they submitted to the jurisdiction there. The method of computing damages of the individual plaintiffs was contrary to the English law concept of natural justice. Accordingly, the actions would be dismissed, Pemberton v Hughes [1899] 1 Ch. 781, Okura & Co v Forsbacka Jernverks Aktiebolag [1914] 1 K.B. 715, Littauer Glove Corp v FW Millington (1920) (1928) 44 T.L.R. 746, Jacobson v Fraction (1928) 138 L.T. 386 and Vogel v R&A Kohnstam [1973] Q.B. 133 applied.

Emanuel v Symons

Buckley LJ set out a list of circumstances in which a foreign court would be regarded as having jurisdiction. One was “where was resident in the foreign country when the action began”. It is natural for the claimant to sue in the defendant’s home country, and it is well settled that the residence of the defendant is a sufficient basis for recognition.

Where jurisdiction does not exist

In Schibsby v westenholz

The claimant brought an action in England on a French judgment. The defendant was in France when the writ was issued, nor did he appear or submit to the jurisdiction. It was argued that as the English court would have power to order service of the jurisdiction on similar facts, it should enforce the French judgment. In rejecting this argument, Blackburn J. Said:

“If the principle on which foreign judgments were enforced was that which is loosely called “comity”, we could hardly decline to enforce a foreign judgment given in France against a resident in Great Britain under circumstances hardly, if at all, distinguishable from those under which we, mutatis mutandis, might give judgment against a resident in France; but it is quite different if the principle be that which we have just laid down”

The actions in personam English courts claim a wider jurisdiction than they concede to foreigh courts.

An excellent answer will also consider steps to ensure that

Article 33 (1) of the regulation provides simply that “a judgment given in a member state shall be recognized in the other member states without any special procedure being required”. If an interested party raises the recognition of a judgment as the principal issue in a dispute, the Regulation provides that party may apply for a decision that the judgment be recognized [7]