Posted: 17/01/2024
The UK and the United States of America have long enjoyed a special and valuable relationship. According to the Office of the United States Trade Representative, US goods and services trade with the UK totalled an estimated $295.6 billion in 2022. The US exported $158.2 billion in goods and services to the UK in 2022 and it imported $137.4 billion worth of British goods and services.
In the same year, US foreign direct investment in the UK reached an all-time high of $1077.5 billion and UK foreign direct investment in the US totalled $663.4 billion.
This valuable economic relationship is set to continue as trade negotiations between the two countries continue.
So, big numbers and big business but where there is business there will also be disputes. Cross-border disputes are inevitably more complex, time-consuming and expensive to resolve. And it is not just a question of where to bring proceedings. Potential litigants also need to consider where any judgment will need to be enforced.
The good news for businesses involved in transatlantic trade is that the UK has now signed the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague 2019). The US is already a signatory of this convention which provides for the recognition and enforcement of judgments between contracting states. While neither the US nor the UK have yet ratified Hague 2019, it is a major step forwards in the ease of enforcement of judgments between the two nations.
While in future the position may be simpler, it is important to note that currently, there is no reciprocal agreement in place between the US and the UK for the mutual recognition and enforcement of judgments. It is therefore essential for the parties to understand what this means from the outset to ensure that any judgment obtained can be enforced where it matters – for example, where the defendant has readily realisable assets.
This article examines the enforcement of a judgment obtained in the US in the English courts.
Due to the absence of a reciprocal enforcement agreement, a US judgment can only be enforced in England at common law by bringing a new action under which the judgment is seen as a simple contractual debt. New proceedings are therefore issued in the English court for payment of the ‘debt’.
For the court to consider enforcing the debt, it must be satisfied of six elements. The burden of proving that one of these elements has not been satisfied is on the party resisting the enforcement proceedings (ie the judgment debtor).
Final and conclusive
The US judgment to be enforced must be final and conclusive in the court which handed down the judgment. If the decision is subject to an appeal, the English court will likely stay the enforcement proceedings pending the outcome of the US appeal. It should also be noted that the judgment cannot be inconsistent with a prior judgment on the same subject matter and between the same parties. Interim and provisional orders, as well as forms of injunctive relief, are not enforceable.
Ascertainable and definite sum of money
The judgment to be enforced must be for an ascertainable and definite sum of money. For example, a US judgment that is for a declaration rather than payment of a sum of money cannot be enforced in England. Furthermore, it must not relate to taxes, a fine, or any other form of penalty usually - but arguably not always - payable to the state.
Jurisdiction
The English court must be satisfied that the US court had jurisdiction to hear the claim. This will be decided according to English private international law.
The US court will be considered to have had jurisdiction if the judgment debtor:
Parties should also be aware that there are certain steps that do not amount to submission to an overseas court's jurisdiction. In particular, the judgment debtor shall not be regarded as having submitted to the overseas court's jurisdiction if they have only appeared (conditionally or otherwise) in the proceedings for any one or more of these reasons:
The question of whether a party has submitted to jurisdiction is to be inferred from all the facts.
In considering jurisdiction, it is also important to assess whether a statutory defence may be available under section 32(1) of the Civil Jurisdiction and Judgments Act 1982. In summary, this states that a foreign judgment will not be recognised or enforced in the UK where it was obtained contrary to any agreement under which the dispute in question was to be settled. This may apply where an agreement contains an arbitration or jurisdiction clause, for example.
Fraud
An English court will refuse to recognise or enforce a judgment obtained by fraud where the judgment would not have been made but for the fraud. This is a rare exception to the general rule that the English courts will not re-open and re-examine the merits of the underlying case.
Public policy
An English court will not recognise or enforce a US judgment if to do so would be contrary to English public policy or the European Convention on Human Rights. It is rare that a US court will hand down a judgment that goes against English public policy. One such example, however, is an award that is punitive or penal in nature.
Natural justice
A judgment will not be enforced if it was awarded in a manner contrary to natural or substantive justice. Arguments on this point most frequently arise in relation to whether the judgment debtor was given sufficient notice of the underlying US proceedings to enable them to defend the claim.
A judgment obtained without one party having a proper opportunity to defend itself could potentially, depending on the facts of the case, be deemed a breach of natural justice rendering the judgment unenforceable. Similarly, the English court might refuse to enforce a judgment where no due service has been made. That said, the UK courts will look at the individual facts of each case.
If the judgment debtor is located in the US, the first step for the enforcing party on issuing new proceedings will be to apply to the English court for permission to serve the claim form on the judgment debtor out of the jurisdiction. If the judgment debtor has assets in the UK, permission will likely be granted.
It should be noted that the deadlines to file an acknowledgement of service, an admission or a defence are extended when the defendant is located outside the jurisdiction. If the defendant files an acknowledgement of service, admission or a defence without first filing an acknowledgement of service, then it must do so no more than 22 days after service of the particulars of claim. If it files an acknowledgement of service, the deadline for then filing a defence is extended to 36 days after service of the particulars of claim.
As mentioned above, the court will not usually reconsider the merits of the underlying judgment, even if it disagrees with it, unless there is a compelling reason to do so. Consequently, the usual approach will be for the claimant under the new proceedings to apply for summary judgment, which the court will usually grant. Summary judgment enables a party to enforce a US judgment in the English courts quickly, without having to go through the hassle and expense of full blown proceedings and a full trial.
Pursuant to section 24(1) of the Limitation Act 1980, any action to enforce a foreign judgment must be brought within six years of the date on which the judgment became enforceable.
By contrast to the common law process, Hague 2019 would provide an automatic right to recognition and enforcement of US judgments in the UK. To be enforceable under Hague 2019, judgments must fall within a list of jurisdictional filters. If at least one of these is met, the judgment can be recognised and enforced. The UK government has indicated it intends to implement Hague 2019 using a ‘registration model’, meaning that judgment creditors would apply to register the foreign judgment. Should both the US and the UK ratify Hague 2019, this would be a significant simplification of the current requirements that need to be met to enforce a US judgment in the UK.
Given the ‘special relationship’ between the US and the UK (and the existence of the New York Convention which provides for the extensive enforcement of international arbitration awards), it is surprising that, until now, there has been no reciprocal agreement in place between the US and UK to enforce court judgments. Ratification of Hague 2019 by both countries would provide a much simpler and more cost-effective way to enforce judgments.
In the meantime, and pending ratification, the procedure for enforcing a US judgment in the UK is less straightforward and potentially more expensive than it might otherwise be. However, these factors are mitigated somewhat by the availability of summary judgment or judgment in default if no response is forthcoming from the judgment debtor.
Parties seeking to enforce a US judgment against a judgment debtor with assets in the UK (or indeed a UK judgment in the US) would be well advised to seek local advice at an early stage.
This is an updated version of an article previously published on 15 November 2021.
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