RESISTING ENFORCEMENT: WHAT A DIFFERENCE A DAY MAKES
Armed with a judgment in its favour, a judgment creditor has a number of enforcement options at its disposal. This article, however, addresses the options available to a judgment debtor who seeks to resist such enforcement.
It is crucial for a defendant to be aware, from the outset, of the possible enforcement scenarios that are available to a claimant. Firstly, this will facilitate the defendant’s preparation of his/her grounds for challenge in the original proceedings. Secondly, this will enable the defendant to decide whether to raise a challenge to the proceedings in the forum of the original proceedings or to challenge the judgment at the enforcement stage.
Two of the most commonly used routes to enforce foreign judgments in England are the European regime and common law. Each presents different possibilities for challenging enforcement.
The European regime is contained in four different instruments, the two most utilised being: (i) the Recast Brussels Regulation (Council Regulation (EU) 1215/2012)(Recast Brussels), for proceedings commenced on or after 10 January 2015; and (ii) the 2001 Brussels Regulation (Council Regulation (EC) 44/2001(2001 Brussels), for proceedings pre-dating 10 January 2015.
The grounds for challenge under this regime are limited to the following: (i) recognition would be manifestly contrary to public policy; (ii) in cases where there is a judgement in default, if the defendant was not served with the claim form in sufficient time to prepare his/her defence (unless he/she failed to challenge the judgement where possible); (iii) if the judgment is irreconcilable with a judgment given between the same parties in the member state where enforcement is sought; and (iv) if the judgment is irreconcilable with a judgment in another member state or third state involving the same cause of action and between the same parties (provided the earlier judgment fulfils the conditions necessary for its recognition) (see Article 34-35 of 2001 Brussels or Article 45 of Recast Brussels).
Jul-Sep 2016 issue
Kirkland & Ellis International LLP