By Christopher Charlesworth
Ford & Warren
1 The special relationship between the UK and U.S. has been a source of comfort to those who conduct business across the Atlantic but caution is needed when it comes to enforcing American judgments in the UK.
2 Like the U.S. the UK is not a single jurisdiction. There are three distinct jurisdictions: (1) England and Wales, (2) Scotland and (3) Northern Ireland. This article covers the rules relating to England and Wales.
3 England and Wales has different procedures for enforcing foreign judgments depending on their country of origin. The first method applies to countries who are signatories to the Brussels Regulations 2001 or the Lugano Convention 1998. The second applies to countries that have a bilateral agreement with the UK for reciprocal enforcement rights. Neither of these apply to the U.S. As a result U.S. creditors are required to rely on the English Common Law. English Common Law recognises a U.S. judgment as an implied contract to pay.
4 The first step is for the judgment creditor to commence proceedings by issuing proceedings by issuing a Claim Form, usually in the High Court (in England there are two courts, the High Court and the County Court, the High Court is generally used for higher value claims.
5 Once the proceedings are served the Defendant has 14 days to acknowledge the claim and state whether he intends to defend. If he fails to do so then the creditor is entitled to a judgment by default because the debtor is deemed to have admitted the claim. If the debtor indicates he is going to defend then the creditor can apply for summary judgment. This is a relatively fast procedure for determining claims. To succeed the creditor must persuade the court that the Defendant does not have reasonable grounds for defending the claim. If there is genuine doubt then this will be exercised in favour of the debtor.
6 In deciding whether to enforce a U.S. judgment the English Court will consider whether the U.S. court had jurisdiction. This will involve considering whether the debtor submitted or consented to U.S. jurisdiction, this can be demonstrated by the voluntary appearance of the debtor in the U.S. court. If the debtor did not appear then the English court will infer acceptance in one of three ways. Firstly if the debtor was resident at the commencement of the proceedings (a company will be deemed to be present within the jurisdiction if it was trading in the U.S. at the material time), secondly it can be inferred that if there was an exclusive jurisdiction clause in writing between the parties. Finally contractual clauses relating to the acceptance of service of process will usually be interpreted as the judgment debtor consenting to the foreign jurisdiction.
7 Once jurisdiction is established the English courts must be satisfied that the judgment debtor was aware of the original proceedings. The judgment creditor will be required to produce evidence of this.
8 To be enforceable the U.S. judgment must be conclusive on the merits i.e. the U.S. court must have given and final and reasoned decision. Judgments that are subject to an ongoing appeal are not capable of registration until the relevant appeal judgment has been delivered. The English courts will not accept interim awards or judgments that are not for defined sums. A witness statement from a qualified attorney is generally required to demonstrate that the judgment is a final award.
9 The English approach to damages is different to that of the U.S. courts. Awards for general damages follow judicial guidelines and as a consequence awards are substantially lower than their U.S. equivalents. Crucially in England, awards for punitive damages are rare and courts will not enforce awards for damages that are punitive or penal in nature.
10 In addition to the above the debtor can also raise a number of generic defences. It will be a defence if the debtor can demonstrate that the judgment was obtained by fraud. A debtor may also argue that it would be contrary to public policy to register and enforce the judgment in the UK. Finally, a judgment debtor may plead that the original proceedings were contrary to the rules of natural justice.
U.S attorneys should be aware of the limitations on enforcing judgments in the English courts. A client who has invested considerable costs in obtaining a judgment assuming that it can be enforced will naturally be disappointed if he finds that it is not the case.
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