FOREIGN JUDGMENTS AND THE RULES OF COMMON LAW

Common law rules on the effect of foreign judgments

We saw in Chapter 33, and will see in Chapters 35 and 36, the schemes made by various statutes for giving effect in England to the judgments of certain courts in certain foreign countries. What these have in common is that the foreign judgment may be registered in England for enforcement in England as though it were a judgment of the High Court; it is more or less true to say that the foreign judgment itself can be enforced in England. It is little wonder that such a thing can only be justified and put in place by statute, and that these statutes generally serve as the vehicle to give effect in England to the provision of an international agreement, whether informal,^[1] or bilateral, or multilateral.

The rest of the law, which really means most of law, is found in rules of common law. These rules and principles were formulated, mostly in the nineteenth century but with limited modern embellishment, to apply, in principle and equally, to all judgments from foreign courts. That is to say, they apply to judgments from foreign courts from the United States to North Korea, from Red China to Darkest Peru. These are the rules examined in this Chapter.

Despite the similarity of the Parliamentary Acts of 1920 and 1933 to the rules of the common law, it is important to understand that, in relation to the registration schemes, the common law is as chalk is to cheese. For as a matter of common law, a foreign judgment cannot be enforced or executed upon in England. On the footing that judicial adjudication is an exercise of sovereign power, the common law understands that only an English judgment can be enforced in England. So far as the common law is concerned, the principal function of a foreign judgment is to furnish the cause of action, relied on in English proceedings, to obtain an English judgment; it is that English judgment which may then be enforced in England.

General

In principle, the recognition and enforcement of judgments at common law is applicable and available to all final judgments from all courts, wherever they are, without limitation of geography or subject matter, except where legislation has removed the possibility of enforcement in accordance with the common law.

The traditional principles of the common law can be summarised shortly. For a judgment to be entitled to be recognised as res judicata in England, it must be the final and conclusive judgment of the court which pronounced it, and it must have been given by a court regarded by English law as being competent to do so. In order to be enforceable as a debt, it must be a judgment for a fixed sum of money.

A party who opposes the recognition of the judgment against him as res judicata may rely upon a number of defences provided by common law or created by statute. So far as the enforcement of foreign money judgments is concerned, the method of enforcement is to bring an action at common law to enforce the obligation, the debt, which is created by the foreign judgment, and as often as not to seek summary judgment on the claim; but this just goes to make the point that the judgment creditor then enforces, by way of execution, an English judgment, not a foreign one.

In general, the common law is not concerned with whether the foreign court had, or did not have, jurisdiction according to its own law. What matters is whether it had ‘international jurisdiction’ as this is defined by English private international law. The common law likewise takes the view that it is irrelevant that the foreign court decided the case differently from the way an English court would have decided it. Once the foreign court has given a judgment which is entitled to recognition as a matter of common law, proceedings may no longer be brought on the original, underlying, cause of action, which is superseded by the obligation created by the foreign judgment: legislation provides that the underlying cause of action is spent.

To explain the common law scheme for foreign judgments, it is necessary to examine four broad issues: first, what counts as a judgment from a foreign court; second, what makes the foreign court one with ‘international jurisdiction’; third, the defences and other grounds for objection to recognition of the judgment; and fourth, the various consequences, as these affect the judgment creditor and the judgment debtor, of a judgment being entitled to recognition: these include enforcement, but are not restricted to that.

• [1] The scheme in the Administration of Justice Act 1920 proceeded from ideas presented at the Imperial Conference of 1911 and the Report (1919, Cmd 251) of the Committee under Lord Sumner. No treaty was necessary. 2 The scheme in the Foreign Judgments (Reciprocal Enforcement) Act 1933 is based on bilateral treaties between the United Kingdom and a foreign State and reflects a broad principle of reciprocity. 3 The Civil Jurisdiction and Judgments Act 1982, and instruments made under it, provided for the effect of judgments from courts in the European Union, originally to give effect to a multilateral treaty and then to reflect multilateral schemes operating within the framework of EU law which was also multilateral in nature. As will be seen in Chapter 36, it has other functions as well. 4 A benign exercise, which English law will treat with respect and support; but still an exercise.