Navigating international disputes: enforcing French judgments in England and Wales

Posted: 09/08/2022

Prior to the UK’s departure from the EU, the enforcement of French judgments in England and Wales was exclusively governed by the so-called ‘European Regime’ for claims instituted after January 2015. Despite the UK’s exit from the EU in January 2020, the European Regime remains relevant today for parties that seek to enforce judgments obtained in proceedings issued prior to the UK-EU transition period ending on 31 December 2020.

For proceedings instituted after 1 January 2021, there are two alternative methods of enforcement. Enforcement under these alternative methods is more technical than under the European Regime. As such, it is important that English legal advice is sought at the earliest opportunity. Failure to adopt the correct approach can result in serious consequences in both France and England.

Under one method, a failure to take steps in the French proceedings can result in the judgment being enforceable in England whereas, under another method, a failure to take steps in the foreign proceedings can result in the judgment being unenforceable.

This article examines the requirements and procedure governing enforcement of French judgments in England and Wales after 10 January 2015. Judgments obtained in France prior to 10 January 2015 are outside the scope of this article as these cases are now increasingly rare and are governed by different rules.

Enforcement in England under the European Regime

Requirements for enforcement in England under the European Regime

In order to enforce a French judgment in England and Wales under the Recast Brussels Regulation (Council Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) (the Regulation), the following will need to apply:

• The underlying proceedings must have been instituted between 10 January 2015 and 11am GMT / midnight CET on 31 December 2020.
• The judgment must be about a civil and commercial matter thus excluding the following: customs or administrative matters, personal status, matrimonial matters, wills and succession, insolvency or arbitration. Separate regimes outside the scope of this article apply to these exceptions.
• French judgments are automatically recognised in England and Wales (Article 36 of the Regulation) unless one of the limited exceptions in Article 45 of the Regulation applies.

Exceptions to recognition and enforcement in England under the European Regime

The exceptions are very limited as the purpose of the Regulation is to ensure ease of enforcement of judgments between EU Member States. Nonetheless, some notable exceptions are as follows:

• The judgment is manifestly contrary to English public policy. This is fairly rare but when it does occur a common situation can be where the monetary award given in the judgment is phrased as a ‘penalty’.
• Default of Appearance: This exception may apply where a defendant was not served with the underlying French proceedings in sufficient time to enable him/her to prepare a defence, unless the defendant failed to challenge the judgment when it was possible to do so. That is, if the defendant was served with the default judgment in sufficient time. As such, there is a positive obligation on a defendant to challenge a judgment if possible in circumstances where they were not properly served. This step should not be taken where the underlying proceedings were instituted after the UK-EU transition period (more on that below).
• The judgment is irreconcilable with another judgment. This exception may apply where a judgment conflicts with a prior English judgment between the same parties or a prior judgment in a third country in the same cause of action and between the same parties, provided the judgment meets the requirements for recognition in England.
• The judgment conflicts with certain sections of the Regulation relating to insurance, consumer and employment cases.
• The French court accepted jurisdiction in conflict with sections of the Regulation relating to rights in rem of immovable property.

Method of enforcement

Where the requirements stipulated by the Regulation are satisfied, the enforcing party will need to:

• obtain a certificate in the standard form set out in Annex 1 to the Regulation from the French Court;
• serve the judgment, certificate and translations on the debtor; and
• enforce the judgment as if it were an English judgment.

Debtors who wish to challenge enforcement should make an application to the court without delay together with a request to suspend enforcement of the judgment.

Enforcement under the Hague Convention

Requirements for enforcement

For proceedings instituted after 1 January 2021, the Hague Convention on Choice of Court Agreements (the Hague Convention) will apply:

• Where there is an exclusive French jurisdiction agreement between the parties (if not, see common law rules below).
• To civil and commercial matters excluding, for instance, family law, wills and succession, insolvency, arbitration, consumer law, employment, some insurance matters, many intellectual property matters, rights in rem in land, and company law matters.
• To judgments on the merits (final judgments, default judgments, non-monetary awards but not interim measures or procedural awards).

Defences to enforcement under the Hague Convention

Article 9 of the Hague Convention sets out various circumstances in which recognition or enforcement may be refused, including where:

• The agreement was null and void under the law of the French court.
• The defendant was given insufficient notice of the original proceedings.
• The judgment was obtained by fraud. This is a rare occurrence.
• The judgment is contrary to English public policy.
• The judgment is inconsistent with another judgment between the same parties or with an earlier judgment in a third country.

Method of enforcement

Where the Hague Convention applies, the creditor must apply to the English court for registration of the judgment without giving notice to the debtor. Under Article 13 of the Regulation, the judgment creditor must provide the court with:

• a certified copy of the judgment;
• a copy of the exclusive jurisdiction agreement;
• in the case of a default judgment, a document proving that the defaulting party was notified of the document which instituted the proceedings;
• any documents necessary to establish that the judgment has effect or is enforceable in France or to verify that the conditions for enforcement have been met; and
• English translations of all of the above.

The judgment debtor can appeal the registration of the judgment if there are grounds under Article 9 of the Hague Convention.

Enforcement in England under common law rules

Where the European Regime or the Hague Convention do not apply, enforcement will be under the common law rules. There is an argument that enforcement could be under the Foreign Judgments (Reciprocal Enforcement) Act 1933. However, it seems unlikely that reciprocity under this Act could revive post-Brexit absent specific agreement between the two countries. It is more likely that the default common law rules will apply. This will remain uncertain until it is tested in the English courts or the UK government legislates.

Requirements of enforcement

For the common law regime to apply, the following must be satisfied:

• The judgment must be final and conclusive (injunctions and interim measures are not enforceable).
• The judgment must be for a debt or definite sum of money.
• The foreign court must have had jurisdiction on a territorial or consensual basis. For example, the defendant was present in France at the time the proceedings were instituted or otherwise submitted to the jurisdiction of the French court by making an appearance in the proceedings.
• The judgment must not have been obtained by fraud.
• The judgment must not be contrary to English public policy. For example, some damages awards expressed as a penalty can infringe English public policy and render the judgment unenforceable.
• The judgment must not be contrary to the rules of natural justice, such as not having a proper opportunity to defend the claim.

If the six conditions above are not met, the judgment is not enforceable in England.

Method of enforcement

Where the above conditions are met, the enforcing party will need to:

• issue a new claim in England to enforce the judgment;
• apply for summary judgment to expedite enforcement; and
• where relevant, seek permission from the English court to serve proceedings on the foreign debtor.

Enforcement can be defended if one of the six criteria above are not met.

Conclusion

The common law rules are likely to apply to most judgments enforced in England. This method of enforcement can, however, be more difficult and costly than that of the European Regime. It may be that, in the future, there will be reciprocal agreements between England and France or England and Europe for the enforcement of judgments between the respective two countries.

Until then, parties seeking to enforce a French judgment in England would be well advised to seek local advice at an early stage.

For a version of this article in French, please see here.

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