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Obtaining Judgement According To The British Legal System

If you or your client has obtained Judgement in Spain and the appeal has been rejected or not adopted you may find the following procedure of interest. If the UK resident has a property or assets in the UK then it is a worthwhile consideration.

Conditions

Jurisdiction:

The Spanish court (hereafter referred to as the "foreign court") must have had jurisdiction over the defendant. This can have been achieved in many ways: (1) the defendant, at the date of the commencement of the proceedings, must have been present in the foreign country; or (2) the defendant submitted, or agreed to submit, to the jurisdiction of the foreign court. Also, the foreign court must have ruled it had jurisdiction and accordingly decided on the cause of action, without the possibility of its decision being varied, reopened or set aside by that court especially if the court was unsure about jurisdiction.

Claimed sum:

The claim must be for a definite sum or for a sum ascertainable by a simple calculation.

NOTE: We have seen in the past that a defendant can resist the claim by raising a number of defences. The defendant may argue that the foreign judgment was obtained by fraud whether on the part of the foreign court or the successful party (see the case of Jet Holdings Inc. v Patel [1990] 1 QB 335). The defendant may claim that the judgment is contrary to public policy (see the case of Soleimany v Soleimany [1999] QB 785). The defendant may contend that the proceedings leading to the foreign judgment were contrary to natural or substantive justice (see the case of Adams v Cape Industries plc [1990] Ch 433). In deciding whether to recognise a foreign judgment, an English court will have regard to its obligation to act in a manner consistent with the right to a fair trial guaranteed by the European Convention on Human Rights, art. 6, in the Human Rights Act 1998, sch. 1 (see the case of Al-Bassam v Al-Bassam [2004] EWCA Civ 857, [2004] WTLR 75).

Registration

Our rules that govern civil litigation set out the procedure for registering foreign judgments in England and Wales for the purposes of enforcement. For this purpose, the rules provide that a 'judgment' means any judgment of a foreign court or tribunal, whatever it may be called, and includes decrees, orders, decisions, writs of execution and costs determinations. I have summarised the procedure below to give you some idea of what to expect.

(1) Applications for registration are made to the Queen's Bench Division of the High Court, London.

(2) Applications are made without notice to the defendant but and must be supported by written evidence.

(3) Written evidence in support of applications to register an order/judgment in the High Court must:

• (a) State an address for service within the jurisdiction;
• (b) State details of any interest recoverable on the judgment, including the rate, dates and amounts;
• (c) Exhibit a copy of the judgment in a form establishing its authenticity;
• (d) Exhibit a translation of the judgment (if not in English) into English certified by a notary;
• (e) Public or other qualified person, or which is confirmed to be accurate;
• (f) Exhibit a certificate;
• (g) Exhibit a certified translation of the certificate.

Once the application is granted an order, known as a European enforcement order ("EEO"), it will be sealed by the court and will grant permission to enforce the foreign judgment in England and Wales.

The EEO must then be served on the debtor/defendant. At this point the debtor/defendant may apply to have the judgment set aside, which may delay matters.

Enforce

To enforce an EEO expressed in a foreign currency, where an application is made to the High Court (for a charging order, a writ of fiery facials or an attachment of earnings order etc) or to the county court (for a warrant of execution or an attachment of earnings order), the application must contain a certificate of the sterling equivalent of the judgment sum.

Enforcement options include:

Third party debt order - this has the effect of transforming a debt payable by a third party to the judgment debtor into an obligation to pay the debt to the judgment creditor. Third party debt orders are an effective method of enforcement where the debt to be attached is owed by a responsible body, such as a bank or building society or employers.

Attachment of earners - this is where a judgment debtor is employed, but has no other substantial assets. The court will order the employer to pay a percentage of the debtor's earnings to the creditor before the debtor’s salary is paid into his/her bank account.

Charging orders: these are placed on the property of the debtor for securing (long term) the payment of any money due or to become due under the judgment. Not appropriate if the UK resident has no property or asset (to the value of the debt) to place the charge against.

Bailiffs/High court enforcement officers - these are officers of the court, equipped with the power to enter the property of the debtor and to seize goods up to the value of the debt. The goods are sold and the money realised and then used to settle any judgment debt. This may not be appropriate if the judgment is in the high thousands.

Insolvency proceedings (bankruptcy/company liquidation).

Call us now on 023 8023 5979.

For more information and free advice, please contact us at spain@lawdit.co.uk