Enforcement of judgments
Cross-border enforcement of judgments between Ireland and the UK has until now also been governed by the Brussels Recast Regulation. This provides for enforcement of judgments essentially 'as of right' between EU member states.
While the Brussels Recast Regulation generally ceases to apply to enforcement of judgments in or from the UK on 31 December, in practice the transitional arrangements under the EU/UK Withdrawal Agreement mean that the existing regime will continue to apply to the enforcement of judgments between the UK and Ireland for some considerable time to come. This is because the Brussels Recast Regulation will continue to apply in cases where proceedings were commenced before 11pm on 31 December 2020.
For cases begun after that date enforcement will take place under a combination, again, of common law rules and Hague 2005. These rules do provide for enforcement of foreign judgments, both in the UK and Ireland, but the procedure is likely to be more costly and in some cases less reliable than under the Brussels Recast Regulation.
This is because, for example, Hague 2005 facilitates the enforcement of judgments given by a court specified in an exclusive jurisdiction clause, but is a less robust regime than the Brussels Recast Regulation. The Irish courts may not apply it to UK judgments given by a UK court specified in a pre-1 January 2021 jurisdiction clauses as they may choose not to apply Hague 2005 to those clauses.
Hague 2005 also has subject matter limitations; it cannot be used to enforce interim remedies such as interim injunctions, and it contains wider grounds for refusing enforcement.
The common law rules both in Ireland and the UK permit enforcement of foreign judgments, but the requirements are narrower than under Brussels Recast. In both Ireland and England, for example, for a foreign judgment to be enforceable in common law: it must be for a sum of money, be final and conclusive and be given by a court of competent jurisdiction; parties must commence fresh legal proceedings, essentially suing on the judgment as a debt, and there are wider grounds for refusing to recognise and enforce a foreign judgment than under the Brussels Recast Regulation.
Again, if the UK could become a party to the Lugano Convention, that would have benefits in terms of the enforcement of judgments between the UK and Ireland as it is a similar regime to the Brussels Recast Regulation, albeit less robust in certain respects.
The uncertainty in this area makes it important for parties entering future contracts to consider carefully where they wish their disputes to be heard and if and where they may need to enforce judgments.
Ultimately, in most cases the issues which arise from Brexit are likely to amount to procedural delays rather than substantive issues in the disputes. . Therefore, in some cases arbitration may be a suitable alternative option to litigation. Arbitration awards are readily enforceable under the New York Convention on the Recognition and Enforcement of Arbitration Awards, to which the UK and Ireland are both parties, and which is unaffected by Brexit.
What is essential, however, is that specialist advice is sought where disputes between UK and Irish parties arise, particularly in the early post-transition period where some uncertainties will persist.