Recognition and enforcement of foreign judgments in an English court

The issue in this case is whether Libyan bank which has obtain judgment in United States against the company registered in England, sue for the return of the deposits before an English court. The company is London branch of a New York bank. By looking to the facts of the case, it can be said that it is the matter of the recognition and enforcement of foreign judgments in an English court.

From the perspective of English law, a foreign judgment is a decision of a court in a jurisdiction other than England, which includes Scotland and Northern Ireland. Decisions of foreign courts exercising civil jurisdiction may be enforced in England provided that specified conditions are met, which are defined by principles of private international law. Foreign judgments have no direct application or force in England as (from the perspective of English law) judgments are territorially limited to the jurisdiction of the Court in which the judgment was made; accordingly foreign judgments cannot be directly enforced by execution in England, as if it were a judgment of an English Court.

In order to be enforced, a foreign judgment must first be recognized by an English Court; this is not to

say that an English Court will enforce every judgment which it recognizes. A prior litigant in another c

ountry may wish to apply to an English Court to prevent reitigation of a dispute which was previously

determined in another country. [1] 

Libyan bank can sue for the return of the deposits before an English court because the English court recognized and have the power to enforce foreign judgments. English courts exercise a supervisory jurisdiction of judgments to be enforced here. Because United States do not have a treaty or convention with United Kingdom, foreign judgments are enforced by commencing fresh proceedings in England that are focused upon ;

recognition of the foreign judgment in England,

obtaining an English judgment for the purposes of enforcing the foreign judgment in England. Those fresh proceedings are commenced with a view to applying and obtaining Summary Judgment.

The foreign judgment can be recognized and be enforced in English court if the decision is res judicata of the issues dealt in the foreign litigation. Accordingly, the defendant to fresh litigation in England may plead ;

If the claimant was unsuccessful in foreign litigation, it is precluded from commencing fresh litigation against the defendant in England for further, alternative or other relief;

If the claimant was successful in the foreign litigation and received an award of damages, the defendant defends the fresh litigation on the basis that the sum of damages has been determined by the foreign court, and the claimant is not entitled to relitigate the issues in England to attempt to obtain a higher award of damages;

In order for the Libyan bank to get the foreign judgment to be recognized, they must first register to the English court. English court have the discretion to enforce the foreign judgment subject to the conditions and the enforcement is not automatically enforceable.

The procedure for the registration of foreign judgments ;

1) The Libyan bank must lodge the judgment or certified copy, together with a translation into English of the original judgment if it is in a foreign language, to the High Court of Justice in England, together with an affidavit in support of the application for the judgment to be registered.

2) The application is made without notice (ex-parte) by lodging papers with the Master's Secretary's Department. The conditions of the applicable Act must be complied with (see 3.1 – 3.3 below). Assuming those conditions are met, an order will be given for the judgment to be registered.  Notice is then given to the defendant that the judgment has been registered and that the defendant has 21 days in which to apply to set aside the registration.

3) The Notice must be served personally on the defendant. If an application is made there will be a hearing before the Master in the Queen's Bench Division of the High Court.

It is important to keep in mind that the English rules of procedure apply when a party is seeking to enforce a foreign judgment. [2] 

Foreign judgments may be enforced in the UK in one of three different ways, as follows: -

European Judgments - Judgments of foreign States signatories to the Judgments Regulation 2000 (which replaced the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters of 1968 for all EU countries save for Denmark) and the Lugano Convention which applies to EFTA countries;

Judgments of Commonwealth States and States with which the UK has a bilateral Treaty; and

Judgments from courts of foreign States with which there is no treaty. [3] 

Once the judgment is registered, or declared enforceable, it is treated for the purposes of English law as equivalent to a High Court judgment.

The judgment is treated for the purposes of English law as equivalent to a High Court judgment after being registered and declared enforceable.

Since the Libyan bank is claiming from United States, it will falls under judgments from courts of foreign States with which there is no treaty. United States has no reciprocal enforcement treaty with United Kingdom and not a party to convention. In this situation, Libyan bank has to bring an action to enforce the judgment and it is considered as an action at common law. The foreign judgment is the cause of action and an application can be made for summary judgment on the grounds that there is no defence to the action. The English court must first look whether the US court has the jurisdiction to render the judgment according to the English rules of private international law for the purpose of enforcement of foreign judgment.

In a nutshell, the English courts' requirements for jurisdiction are that:-

The defendant in the enforcement proceedings in England was resident or, if a body corporate, had a place of business (or perhaps was present) in the country of the foreign court which gave judgment;

The defendant to the enforcement proceedings was the plaintiff or counterclaimed in the proceedings in the foreign court;

The defendant agreed to submit to the jurisdiction of the foreign court;The defendant submitted to the jurisdiction of the foreign court (by taking an active step in the proceedings other than in relation to (i) property which had been seized or (ii) disputing the jurisdiction of the foreign court);

The foreign judgment is final and conclusive; The claim in the English proceedings is to enforce a judgment for a definite sum of money (this includes a final order for costs). This does not include taxes, fines or penalties (s1 (2) and s 11(1) of the Foreign Judgments (Reciprocal Enforcement) Act 1933);

The defendant was served with the process of the foreign court and judgment was not obtained by fraud or any cause of action which is contrary to the public policy of England. [4] 

The Libyan bank must make sure that the New York bank comply with all the requirements in order for the foreign judgment to be enforced and the first requirement is met where the New York bank is the resident and body corporate, had a place of business (which is the London branch of New York bank)in the country of the foreign court which gave judgment.

There are several defences that can be invoked by the New York bank in order to set aside the registered judgment. First by questioning the existence of jurisdiction clause in the contract, whether the foreign court has the jurisdiction and whether the judgment was obtained by fraud.

The Libyan bank can also recover the deposits money under the foreign judgment through the insolvency and bankruptcy. Since the enforcing a foreign judgment in England is quite complex and costly, the recovering method by insolvency and bankruptcy is an alternative way that can be used by the Libyan bank. The Libyan bank can serve the Statutory Demand on the New York bank under the Insolvency Act 1986, and the New York bank is deemed under statute unable to pay its debts if it is served with a Statutory Demand and fails to pay its debts or challenge the Statutory Demand within 3 weeks of being served and an application to wind up the company can be made. The amount of alleged indebtedness must exceed £750. This option is a useful and powerful tool for foreign creditors.


The Libyan bank can choose to recover in the ordinary way of claiming or through the insolvency and the bankruptcy method which will affected more on the New York bank's position and reputation. In my suggestion, I would advice to Libyan bank to recover the substantial deposits through the method of insolvency and bankruptcy because the enforcement of the foreign judgment in the English court is a complex procedure since the basis and requirements for enforcement can be found in various legal sources (conventions, statutes, common law) depending on the State in which the judgment was obtained. It is also to save time and money for the Libyan bank in using this method and also considered as a great tool for foreign creditor such as the Libyan bank.