Manage international disputes: enforce Spanish judgments in England and Wales
Prior to the UK’s departure from the EU, the enforcement of Spanish judgments in England and Wales was exclusively governed by the so-called “European regime” for actions brought after January 2015. Despite the UK’s exit United Kingdom of the EU in January 2020, the regime remains relevant today for parties seeking to enforce judgments obtained in proceedings issued before the UK-EU transition period ending on December 31 2020.
For lawsuits initiated after January 1, 2021, there are two alternative modes of execution. Enforcement under these alternative methods is more technical than under the European regime. As such, it is important that legal advice in English is sought as soon as possible. Failing to take the right approach can lead to serious consequences in Spain and England. According to one method, the absence of measures in the Spanish proceedings may render the judgment enforceable in England while, according to another method, the absence of measures in the foreign proceedings may result in the non-execution of the judgment.
This article examines the requirements and procedure governing the enforcement of Spanish judgments in England and Wales after 10 January 2015. Judgments obtained in Spain before 10 January 2015 fall outside the scope of this article as these cases are now of increasingly rare and are governed by different rules. .
Execution in England under the European regime
Conditions of execution in England under the European regime
In order to enforce a Spanish judgment in England and Wales under the recast Brussels Regulation (Council Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil matters and commercial) (the regulations), the following shall apply:
- The underlying proceeding must have been initiated between January 10, 2015 and 11 a.m. GMT / midnight CET on December 31, 2020.
- Judgment must relate to a civil and commercial matters (excluding, for example, customs or administrative matters, personal status, matrimonial matters, wills and estates, insolvency or arbitration. Separate regimes outside the scope of this article apply to these exceptions.
- Spanish judgments are automatically recognized in England and Wales (Rule 36) unless one of the limited exceptions in Rule 45 of the Rules applies.
Exceptions to recognition and enforcement in England under the European regime
Exceptions are very limited as the purpose of the Regulation is to ensure ease of enforcement of judgments between EU Member States. However, some notable exceptions are:
- The judgment is manifestly contrary to English public policy. This is quite rare, but when it does happen, a common situation may be where the pecuniary award given in the judgment is worded as a “penalty”.
- Failure to appear: this exception may apply when a defendant has not been informed of the underlying Spanish proceedings in sufficient time to allow him to prepare his defence, unless the defendant has not challenged the judgment when it was possible to do so. For example, if the defendant was served with the default judgment in sufficient time. As such, there is a positive obligation for a defendant to challenge a judgment if possible in circumstances where it was not properly served. This step does not need to be taken where the underlying procedure has been initiated after the UK-EU transition period (more details below).
- The judgment is irreconcilable with another judgment. This exception may apply where a judgment conflicts with a previous English judgment between the same parties or a previous judgment in a third country in the same cause of action and between the same parties, provided that the judgment meets the conditions of recognition in England.
- The judgment conflicts with certain sections of the rules relating to insurance, consumer and employment cases.
- The Spanish court recognized its jurisdiction in conflict with the sections of the regulations relating to rights in rem over immovable property.
When the requirements stipulated by the regulations are met, the enforcement party shall:
- obtain a certificate according to the standard form set out in annex 1 of the regulations from the Spanish court;
- serve the judgment, certificate and translations on the debtor; and
- enforce the judgment as if it were an English judgment.
Debtors who wish to contest the execution must make a request to the court without delay, accompanied by a request for suspension of the execution of the judgment.
Enforcement under the Hague Convention
Terms of execution
For proceedings initiated after 1 January 2021, the Hague Convention on Choice of Court Agreements (the Hague Convention) will apply:
- Where there is an agreement of exclusive Spanish jurisdiction between the parties (if not, see common law rules below).
- Civil and commercial matters excluding, for example, family law, wills and inheritance, insolvency, arbitration, consumer law, labor, certain insurance matters , numerous questions of intellectual property, property rights and corporate law.
- Judgments on the merits (final judgments, default judgments, non-monetary awards but not interim measures or procedural awards).
Defenses to enforcement under the Hague Convention
Article 9 of the Hague Convention sets out various circumstances in which recognition or enforcement may be refused, including where:
- The deal was null and void under Spanish court law.
- The defendant received insufficient notice of the original proceedings.
- The judgment was obtained by fraud. It is a rare event.
- The judgment is contrary to English public order.
- The judgment is incompatible with another judgment between the same parties or with a previous judgment rendered in a third country.
Where the Hague Convention applies, the creditor must ask the English court to register the judgment without notifying the debtor. Under section 13 of the regulations, the judgment creditor must provide the court with:
- a certified copy of the judgment;
- a copy of the exclusive jurisdiction agreement;
- in the event of a judgment by default, a document proving that the defaulting party was notified of the document initiating proceedings;
- any document necessary to establish that the judgment has effect or is enforceable in Spain or to verify that the conditions for enforcement are met; and
- English translations of all of the above.
The debtor may appeal against the registration of the judgment if there are grounds under Article 9 of the Hague Convention.
Enforcement in England under common law rules
When the European regime or the Hague Convention does not apply, the execution will be done according to the rules of common law.
Terms of execution
For the common law regime to apply, it is necessary that:
- The judgment must be final and without appeal (injunctions and provisional measures are not enforceable).
- The judgment must relate to a specific debt or sum of money.
- The foreign court must have had jurisdiction on a territorial or consensual basis. This means that the defendant was present in Spain at the time the proceedings were initiated or otherwise subject to the jurisdiction of the Spanish court by appearing in the proceedings.
- The judgment must not have been obtained by fraud.
- The judgment must not be contrary to English public policy. For example, certain awards of damages expressed as a penalty may breach English public order and render the judgment unenforceable.
- The judgment must not be contrary to the rules of natural justice, such as not having had the opportunity to defend the claim.
If the above six conditions are not met, the judgment is not enforceable in England.
When the above conditions are met, the executing party shall:
- make a new claim in England to enforce the judgment;
- seek summary judgment to expedite enforcement; and
- if necessary, ask the English court for permission to serve the proceedings on the foreign debtor.
Execution can be defended if one of the above six criteria is not met.
Common law rules are likely to apply to most judgments executed in England. However, this method of enforcement can be more difficult and costly than the European system. It may be that in the future there will be reciprocal agreements between England and Spain or England and Europe for the enforcement of judgments between the two respective countries.
Until then, parties seeking to enforce a Spanish judgment in England would be well advised to seek local advice at an early stage.