Determining which scheme or schemes may be resorted to

These are not just matters for a judgment creditor to consider, for the decision where to sue will, for the claimant, be significant when it comes to enforce any judgment which may be obtained. And it is not just the claimant who needs to address these questions. It is often just as important for a defendant to consider whether a judgment from one foreign State would be enforceable against his assets in another foreign State. It will be unsafe to suppose that, just because a foreign judgment - suppose, a default judgment - will not be enforceable in England, it will not be enforceable anywhere else. A State may have bilateral or other treaty arrangements to make its judgments enforceable in another State which is friendly with it: one only has to think about judgments from a court in South America, which could not be enforced in England, being enforced in other South American States to see that there may be a point. Quite apart from that, the judgment debtor may have assets within, or accessible by reaching out from, the territory of the adjudicating court. These may be vulnerable if the law of that State has adventurous powers of garnishment or debt-seizure, or power to make ‘turn-over orders’, and the defendant has debtors^[1] who owe him money and who are vulnerable to such measures of enforcement or execution ‘hijacking’ the funds they owe to the judgment debtor. In deciding whether to let judgment be entered in default, a defendant will need to be attentive: where international disputes are concerned, enforcement in England is most unlikely to be the only risk. But one must start somewhere, so the principal concern of this Part is recognition and enforcement of foreign judgments in England.

The principal factors which determine the set of recognition and enforcement rules which apply are the identity of the court which gave judgment, the nature of the claim, and the date of the institution of proceedings.

If, for example, the judgment was in a civil or commercial matter from a French court, in proceedings which were instituted before Completion Day, the answer will depend primarily upon one or other of the Brussels I Regulations, though if judgment was on an uncontested claim for a specific sum of money the judgment may qualify for speeded-up enforcement under the European Enforcement Order (EEO) procedure as well. If the proceedings were instituted after Completion Day, the answer will depend primarily on the Lugano Convention if the United Kingdom accedes to it; if not, the bilateral Convention between France and the United Kingdom given effect under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (or, indeed, the common law).

If the judgment was in a civil or commercial matter from a Swiss court, the answer will be found in the Lugano Convention; but if that is not available, the common law.

If the judgment was from an American court, the rules of the common law alone will give the answer.

If the judgment was from a court in New Zealand, the Administration of Justice Act 1920, which is in large measure a codification of common law principle, will probably apply. If the judgment was from an Australian court, the Foreign Judgments (Reciprocal Enforcement) Act 1933, which is in essence an approximate codification of the common law, will probably govern.

And if the judgment is from the courts of a Hague State which took jurisdiction pursuant to the Hague Choice of Court Convention, Chapter III of that Convention may also be applicable.

Although the English statutory schemes do not usually prevent the alternative of seeking recognition of the judgment by recourse to the rules of the common law, and although it is technically possible to enforce by action at common law a judgment to which the statutory schemes of registration do not extend, the cases in which this will need to be done are few and rare.^[2]

From the point of view of a defendant, it is important to notice from the outset that there is a sharp distinction between the enforcement of European civil and commercial judgments under the Brussels and Lugano rules, on the one hand, and under the common law, on the other. Under the European schemes, there is straightforward, almost automatic, recognition and enforcement of judgments as between the States which is hard, sometimes impossible, to derail. In particular, it is generally no defence for the judgment debtor to assert that the adjudicating court was in error in considering that it had jurisdiction, or to seek to show that it decided the case wrongly. Once the judgment has gone against him, the defendant is very much on the back foot. It follows from this that the defendant runs a substantial risk by letting the original proceedings in the courts of a Member State or Lugano State go against him by default, or by not contesting them with vigour whether on jurisdiction, or on the merits, or both. Where these schemes may apply there is little to be gained from keeping one’s powder dry; indeed, there may be everything to lose.

By contrast, if the foreign judgment will take its effect in England under the common law rules, or under the Parliamentary statutes which are derived from it, the judgment debtor will be allowed to contend that the adjudicating court did not have what English private international law considers to be ‘international jurisdiction’ over him. As one of the only two acknowledged bases of such ‘international jurisdiction’ is submission to the foreign court, a defendant who is not present within the jurisdiction of the foreign court" on the relevant date may consider it relatively safe to allow the proceedings to go by default. Moreover, the range of non-jurisdictional objections to the recognition and enforcement of a judgment which are made available by the common law rules is wider than is permitted under the Brussels and Lugano rules. For these reasons, the tactics which a defendant should deploy will depend upon whether the judgment is likely to be presented for recognition and enforcement under the Brussels or Lugano scheme, on the one hand, or take its effect as a matter of common law or its derivative statutes, on the other.

• [1] A bank, for example. 2 This Part deals with the general rules of private international law for the recognition and enforcement of judgments. It does not deal with subject-specific statutory schemes creating a statutory framework for allowing cross-border enforcement of orders made for the prevention of crime, as for example in the Proceeds of Crime Act 2002 and the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005, SI 2005/3181, as amended by SI 2013 No 2604: for illustration, see Blue Holdings (1) Pte Ltd v United States [2014] EWCA Civ 1291, [2015] 2 All ER 237. 3 And the case falls within the material scope of the Brussels I Regulation. 4 The rules on recognition are substantially one and the same: the mechanisms for enforcement are to some extent different, as is shown below. 5 If the case falls within the material scope of the Convention.
• [2] Because the registration schemes either codify the common law, or extend recognition beyond its limits. But the particular court may not be one which is specified in the treaty, given the force of law by the relevant Order, and in the case of judgments from such excluded courts, enforcement at common law will still be possible. It follows that it is always necessary to look at the particular bilateral treaty to see which judgments from which courts are covered. 2 Regulation 1215/2012 makes judgments given in proceedings which were commenced on or after 3 January 2015 even more obstacle-free than Regulation 44/2001 did and does; Regulation 44/2001, on which the Lugano Convention is closely based, had removed some obstacles which were contained in the Brussels Convention. 10 Administration of Justice Act 1920; Foreign Judgments (Reciprocal Enforcement) Act 1933. 4 Presence being the other basis of ‘international jurisdiction’ so far as the common law is concerned. 5 Though he will need to consider whether there is still a threat of enforcement in another country in which he has, or may later have, assets, before deciding to take this step.