In non-EU cases, recognition of judgments is not automatic. An application must be made to court. The common law rules in relation to recognition and enforcement apply where one of the parties is not EU domiciled. The recognition is not between EU and where the recognition does not relate to an EU judgment.
Recognition of a judgment / court order is required for enforcement. The claimant may wish to take steps against the defendant personally or against his assets within the jurisdiction. It may be desired for example to take steps to enforce a judgment against in multiple different jurisdictions where assets are available.
Recognition of the foreign judgment in a non-EU case, involves the Irish court authorising the claimant or other person with a judgment given in a foreign place to take enforcement steps to have it satisfied within Ireland. This chapter is relevant to enforcement of non-EU judgments in Ireland. If the claimants were to take the same claim again in Ireland, the foreign judgment may be raised as a defence.
There are various Conventions and rules which apply to recognition of judgment given in countries other than EU countries. The common law rules apply unless there is a treaty or legislation providing for recognition of judgments. There is legislation in respect recognition of the Commonwealth judgments in the United Kingdom. There is separate legislation for mutual recognition of English, Scottish and Northern Ireland judgments within the United Kingdom.
At common law, the following is generally required in order for a judgment / court order to be recognised:
- Original Court must have had competent jurisdiction.
- Judgment must be final and conclusive.
- Judgment must be for fixed sum of money.
- Must not be tax or a penalty.
If the foreign judgment satisfies these criteria, it is presumptively enforced. It is then a matter for the defendant or person who is liable on the judgment to show a defence by which the judgment should not be enforced.
The question of whether the foreign court was competent depends on whether it was entitled to hear the proceedings under Irish conflict of law rules. This would be the case where the defendant submitted to jurisdiction or whether there are sufficient connections between the debtor and the relevant country. Other connections such as the mere fact that the dispute arose in the particular country or that mee fact that the defendant has assets are insufficient.
A submission to the jurisdiction can take place in several ways.
If the defendant consented to the jurisdiction. This could happen by way of contractual clause in an agreement submitting to that particular jurisdiction.
If the defendant submitted to jurisdiction by voluntarily appearing. This covers appearing and defending the claim on its merits. Entering an appearance even if he took no further steps, may be sufficient. It is not sufficient that he submitted it in the eyes of the Court. There must be proof that he accepted jurisdiction. Appearing to contest the jurisdiction or asking the court to stay the proceedings would not be sufficient.
An appearance is not voluntary if it s due to duress. This may include appearing to release properties seized or threatened with seizure.
The territorial connection must be in the nature of presence or residence. Where a person is resident and present this is a sufficient connection. Where a person is present but not resident the modern approach is that a person voluntarily present has a sufficient connection even if they are not long-term residents. It is not clear if the person is resident but not there at the time proceedings are commenced if this is sufficient.
Some countries may purport to allow a person to be sued on the basis of presence of property in that country only. The defendant will be regarded as submitting to the Court if he took part as a claimant in the proceedings.
In relation to a company the question is whether it is economically present in the country where the judgment was given, by doing business there. The mere fact that a company carries on business in a country is not enough to make it subject to that country\’s jurisdiction for this purpose. A presence would mean it has established a fixed place of business for more than the minimal period and carries on such business through employees or agents.
Indirect presence may arise where there is a representative of the company present for more than a minimal period, in carrying on the company\’s business in that other country at or from some fixed place of business. He must carry on the company\’s business and not his own.
In the case of property, the country in which the property is situate will be regarded as the competent jurisdiction.
The judgment must be final and conclusive. If it may be challenged by the losing party in the same court, it will not be regarded as final and conclusive and will not be enforced.
At common law, orders for delivery of goods, specific performance or injunctions were not enforced. There must be and order for a fixed sum of money. The Courts do not enforce each other’s revenue law at common law, unlike the position under the EU regulations.
An order by a criminal court that a defendant must compensate the victim is enforceable. However a punishment or tax is not enforceable.
The judgment must be final and conclusive. It must be on the merits. The same parties must be involved as are parties to the application for recognition.
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.
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.
If the judgment was not obtained in accordance with basic principles of justice, then it may not be recognised. 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 an and a judgment and order made by applying the law to the facts s found.
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 Curt was bribed.
Recognition may be denied where it is contrary to public policy. This would be unusual in commercial cases. Public policy is narrow in scope. An example may be the refusal to recongnise a judgment to enforce a gambling debt.
A prior Irish judgment may be a defence. A judgment in breach of an arbitration clause would generally not be recognised. This will not apply to an illegal or void arbitration clause.
Some foreign Courts award multiples damages, which go beyond compensation. This may be penal damages. In this case, the excess or multiple damages element may not be enforced.
There is legislation allowing for reciprocal enforcement of money judgments as between the UK and Commonwealth jurisdiction. The enforcement operates by registration of the foreign judgment with the English Court.
The criteria are similar to those with common law. The foreign Court must have had competent jurisdiction. It is enough if the defendant carried on a business in the country.
The judgment is not enforced if it was not duly served, it was obtained by fraud, and appeal pending or it is against public policy,
Judgments obtained in Scotland, Northern Ireland or England can be registered and enforced in the order jurisdiction. It applies to money judgments, specific performance. The defences of fraud, natural justice, public policy is not available.
Relief must be applied for to the local Court. However a judgment cannot be enforced if it conflicts with an existing judgment on the same subject.