Non-Recognition Non-EU

Judgments Enforced

A judgement outside the scope of the EU and similar Conventions may be enforced in an action based on the judgement in Ireland. The basic principle is that a judgement

• for a liquidated sum
• which is final and conclusive
• given by a competent court under domestic rules of private international law

is entitled to recognition at common law and may be enforced by action.

The above principles apply to a judgement in personam. Judgement in personam is an action between parties enforcing civil obligation such as a contract or tort or restitution.

A judgment in rem relates to proprietary interests. It determines the position as against the whole world and not just the parties.

Foreign Judgment as Defence

A person may rely on a foreign judgment as a defence in proceedings brought in Ireland. In order to be a defence, a foreign judgment must be on the merits.

Where the foreign court dismisses the claim because it does not have jurisdiction, this would not be on the merits. A decision on the merits is one that establishes the facts proved are in dispute and affirms the principles of law that apply to them based on the facts.

In order for a foreign judgment to operate as a defence, it must be between the same parties and relate to the same matter.  It must raise the same issues as have already been determined.

There are a number of defences to recognition. A judgment will not be recognised if it is obtained in a manner contrary to natural justice. This means that the defendant must have been given notice of the proceedings and have a proper opportunity to present his case.

Due Process Defence

A judgement given in breach of natural or substantial justice in a foreign court will not be enforced in Ireland. Procedural irregularity is not enough. It must be such as causes substantial injustice.

The foreign court must, at the very least, follow basic principles such as an independent judge, a right to participate, an adjudication on disputed facts and a judgment and order made by applying the law to the facts found.

The court will not investigate the proprietary of proceedings that substantially conform with basic principles of judicial determination. This ground may be invoked only if the proceedings are outside generally accepted norms in relation to adjudication upon rights.

It may be enough if a person receives notice in accordance with the terms of a contract, even though the method of service does not cause him to become actually aware of the proceedings.  In practice, it is difficult to succeed on this ground

Foreign Revenue & Penal

At common law, courts do not enforce judgements which have as their purpose, enforcing foreign penal, public law or revenue law. They do not assist in the collection of foreign tax or the enforcement of foreign policy.

Whether matter relates to foreign tax, public law or penal law depends on the substance of the matter concerned. If recognition  would lead indirectly to the enforcement of a foreign penal or tax law, the exception may apply.

The question whether the foreign judgement is one which involves the assertion of foreign sovereignty whether it be penal revenue or other public law is determined by domestic conflicts of law rules. The categorisation of the claim will depend on the purpose of the legislation in the foreign state and the its context in the case as a whole.

The fact that the right is public, revenue or penal in nature does not by itself prevent a person from enforcing the same in Ireland. If, however, the purpose of the action is the enforcement of a sanction, power or right at the instance of a foreign state in its sovereign capacity, it will not be enforced.

Some foreign Courts award multiple damages, which go beyond compensation. This may be penal damages. In this case, the excess or multiple damages element may not be enforced.

Fraud

A judgment will not be enforced if it is obtained by fraud. Fraud in this context includes where it was obtained by false evidence. It covers where the defendant has been deprived of an opportunity to take part in the proceedings by means of a device, trick or, violence or threats or where the foreign court was bribed.

A foreign judgment is impeachable for fraud on the part of a party or, indeed, the court itself. If evidence is disclosed of a triable issue that the foreign judgement has been obtained by fraud leave to defend the enforcement may be granted.

A bare allegation of fraud is insufficient. If the issue was not raised in the foreign jurisdiction in which the defendant participated, it is unlikely to be upheld. There is support for the view under an older case which has been criticised that fraud may be raised even though there is no new evidence and even though fraud may have been alleged and indeed rejected by the foreign court. It is suggested that it may depend on the reliability of the foreign legal system and the type of fraud concerned.

If the issue of fraud has been raised in fresh proceedings before the foreign court to have the judgment set aside, the defendant may be estopped from changing the judgment in the domestic court.

Public Policy Defence

Recognition may be denied where it is contrary to public policy.  Public policy in this context means policy reflected in the constitution statute.

The court will not assist that which is judged to be contrary to the public policy or public policy of the state. Judges may not import their own notions of policy in this context

Court may refuse to enforce a foreign judgement on grounds of public policy in respect of the matter to be enforced. This for example judgement on contracts which would be void in Ireland are contrary to statute or common law would not be enforced.An example may be the refusal to recognise a judgment to enforce a gambling debt.