Registration under the 1933 Act: substantive defences to registration

The substantive defences, which will lead to the non-registration, or the setting aside of registration, of the judgment are set out in Section 4(1), which appears above. The defences closely resemble those of the common law. The fraud defence is, presumably for the same reasons as were given in Owens Bank Ltd v Bracco, essentially identical with that of the common law as it applies to foreign judgments, and is not now open to judicial attenuation. The defence, which is based on a failure of natural justice, is framed simply in terms of failure to receive notice of the proceedings in time for the defendant to defend himself, but other varieties of breach of the rules of natural justice may well fall within the public policy defence, which is expressed in terms of enforcement being contrary to public policy; and in any event, the Human Rights Act 1998 will apply to registrations taking place under the 1933 Act. In addition, there is an express power to set aside registration if the judgment of the foreign court was given after the final and conclusive judgment of another court also having jurisdiction in the matter.

It is not a defence to registration that the judgment is subject to appeal in the foreign court, but this may provide a ground for either setting aside registration, or for staying proceedings on the application to set aside registration; and in any event, if the judgment is not liable to execution under the law of the State in which it was given, it may not be registered.^[1] This makes sense, as the basic scheme of the 1933 Act is to enforce the foreign judgment as a judgment, as distinct from the scheme of the common law, which is to allow the foreign adjudication to pave the way for an English judgment, which is then enforced.

Registration under the 1933 Act: procedural points

Registration, which is applied for without notice to any other party, may be applied for within six years of the judgment or of the final disposal of any appeal against the foreign judgment. Once the judgment is registered, notice of the registration is served upon the defendant, and the judgment takes effect as if it were a judgment of the English court. The defendant may thereafter apply to set aside the registration. Partial registration, in order to obtain partial enforcement, is permitted in appropriate cases. The judgment is registered in the currency in which it was given; if converted into sterling it will be converted at the date of payment, not at any other date.

If the judgment is one to which the Act applies, that is, one capable of being registered under the Act, section 6 prevents any action being brought upon the judgment itself at common law.

Brexit

As was explained earlier, after Completion Day, judgments from Austria, Belgium, France, Germany, Italy and the Netherlands, which are given in proceedings which were instituted prior to Completion Day will continue to qualify for recognition and enforcement under the Brussels I Regulation. The same will be true for judgments from Norway, where the effect of the judgment will be under the Lugano Convention.

For proceedings in civil and commercial matters instituted after that datejudgments from all these countries will be recognised and enforced under the Lugano Convention if there is agreement that the United Kingdom become a party to the Convention, but if that does not happen the Lugano Convention will be unavailable. Judgments from these seven countries which fall within the scope of the 2005 Hague Choice of Court

Convention will be registrable under the Civil Jurisdiction and Judgments Act 1982 (as amended), which is dealt with in the following Chapter.^[2] In all other cases, the 1933 Act will resume its place as the basis for giving effect in England to judgments from the recognised courts of Austria, Belgium, France, Germany, Italy, the Netherlands, and Norway.

• [1] Section 2(1), Proviso (b). The fact (if it is a fact) that the foreign law does not envisage or provide for enforcement outside its own jurisdiction is irrelevant: State Bank of India v Mallya [2018] EWHC 1084 (Comm), [2018] 1 WLR 3865. 2 Section 3(1 )(b); CPR r. 74.3. 3 Section 2(1). 4 Section 3(l)(c); CPR r. 74.6. Permission is not required to serve it out of the jurisdiction: CPR r. 74.6(2). 5 Section 2(2). 6 CPR r. 74.7. 7 Section 2(4), (5). 8 Section 2(3) was repealed by Section 4 of the Administration of Justice Act 1977. On a related point, a charging order may be made in respect of a judgment debt expressed in foreign currency or in sterling; and for issues relating to the date of conversion, or change of mind by the claimant who procured an order in terms of foreign currency but now wishes the order had been made in sterling, see Carnegie v Giessen [2005] EWCA Civ 191, [2005] 1 WLR 2510. 9 Section 34 of the 1982 Act prevents proceedings being brought on the underlying cause of action. 10 Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019, SI 2019 No 479, Pt 6, Reg. 92(3).
• [2] Civil Jurisdiction and Judgments Act 1982, Section 4B( 1) may be read as making registration under the 1982 the exclusive means of enforcing a judgment under Chapter III of the Hague Convention. It is not clear whether this would prevent such a judgment being registered under the 1933 Act, and perhaps it will not matter. Indeed, in cases of doubt, where for example the foreign court took jurisdiction but there is doubt whether the choice of court agreement was exclusive in the sense of the 2005 Convention, it may be prudent to register the judgment under the 1933 Act. 2 An Agreement (given effect by SI 2020 No 1338) proposes to amend the bilateral treaty with Norway to extend its scope to all judgments from the courts of the United Kingdom and Norway which would have been enforceable under the Lugano Convention.