Procedure under the Recast Brussels Regulation
The enforcement provisions in the Recast Brussels Regulation will apply to the enforcement in England and Wales of judgments from other EU member states in proceedings instituted on or after 10 January 2015. One of the most important changes made on that date by the Recast Brussels Regulation was the abolition of exequatur, or the declaration of enforceability, which had to be obtained in the enforcing state under the 2001 Brussels Regulation. The changes, therefore, in principle make the enforcement procedure less time-consuming and costly. Reference to Articles in this section are to the Articles of the Recast Brussels Regulation. (Note as of November 2018: This post obviously explains with the pre-Brexit situation. Changes through Brexit are not yet clear as we write this note)
Enforcement of foreign judgments in Britain
The procedure is prescribed in Articles 39 to 44, and CPR 74.4A and CPR 74.9. It is as follows:
• The judgment creditor must obtain a certificate from the court of origin in the standard form set out in Annex 1 to the Recast Brussels Regulation certifying that the judgment is enforceable and containing details of the judgment, plus information about interest and costs.
• He must serve the certificate and judgment on the judgment debtor, and a translation (if requested), before enforcing the judgment.
• The judgment creditor is entitled to enforce the foreign judgment as if it were an English judgment. Consequently, he can utilise all the usual procedures, such as writs of control (which have replaced writs of fieri facias) third party debt orders, charging orders, etc.
When seeking enforcement, the creditor must provide the enforcing authority with an authenticated copy of the judgment and the certificate from the court of origin. The authority may require a translation of the certificate or judgment. The creditor must also certify compliance with the requirements about service on the debtor (CPR 74.4A).
Article 54 provides that if the foreign judgment contains a measure or an order which is not known in the enforcing state, it should be adapted to the extent possible to a measure or order known in the law of the enforcing state which has equivalent effects and which pursues similar aims and interests. However, such adaptation shall not result in effects going beyond those provided for in the law of the enforcing state. Applications for an order for such an adaptation, or challenging the adaptation of a measure, are dealt with in CPR 74.11A. The court may make such an order on its own initiative, or on application by any party.
The application must be made to the High Court under CPR 23.
Application for refusal of enforcement under the recast Brussels Regulation
The procedure for refusal of enforcement is set out in Articles 44 to 51, CPR 74.7A to C and PD 74A, paragraph 6B.1:
• The judgment debtor can apply for the enforcement of the judgment to be refused on any of the grounds set out in Article 44 as defences to enforcement under the European Regime.
• The application must be made in accordance with CPR 23, to the court in which the judgment is being enforced. If the debtor is unaware of any enforcement proceedings, the application should be made to the High Court.
• The application must be supported by a copy of the judgment, any other documents relied upon and any necessary translations. A witness statement should set out the grounds why enforcement should be refused (see PD 74A paragraph 6B.1).
• The court must reach a decision without delay. After the order is made, the debtor must serve it on all affected persons and courts.
The enforcing court’s decision may be appealed by either party, in accordance with CPR 52 (though permission is not required).
– – –
The British-German legal team of Lyndales Solicitors (London) and Graf & Partners LLP (Munich) specialise in international legal matters including English-German divorces and other family law cases. The law office Graf & Partners was established in 2003 and focuses on British-German business and private law. If you need advice please contact German solicitor Bernhard Schmeilzl, LL.M. (Leicester) at +49 941 463 7070.