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The last post discussed the enforcement of Chinese judgments in the United States. In this post, I’ll head across the pond to discuss the implications of a recent English High Court decision on the enforcement of judgments and Freezing Injunctions.
EU Enforcement Law
In D’Hoker v Tritan Enterprises Limited [2009] EWHC 948 (QB), the High Court examined the problem encountered with the "Brussels Regulation" in the context of Freeze Orders. The Brussels Regulation is the principle mechanism for the enforcement of judgments between Member States within the European Union and requires Member State to recognize and enforce judgments of other Member States. The circumstances in which such reciprocal enforcement of judgments is not required include the following:
- Where enforcement of the relevant judgment would be manifestly contrary to public policy in the Member State in which recognition is sought (Article 34(1) Brussels Regulation); and
- Where the judgment in question was granted ex parte and is intended to be executed without notice (Denilauler v SNC Couchet Fréres (1980) ECR 731).
As discussed in D’Hoker, these exceptions can create difficulties when enforcing freezing injunctions under the Brussels Regulation because the public policy of each Member State must be examined and ex parte orders are not permitted. So how does one enforce a Freeze Order in the United Kingdom while avoiding these pitfalls?
Public Policy
In considering the public policy exception outlined, above potential claimants should first determine whether the terms of the proposed injunction would offend public policy in any Member State in which it is anticipated that the injunction might need to be enforced.
Second, Claimants should determine whether the injunction was modified after it was initially filed because the Brussels Regulation provides no mechanism for dealing with an order or a judgment that was subsequently modified. The implication of this is that claimants must, upon the modification of a freezing injunction, re-register it as if it were a fresh judgment.
Ex Parte Orders
Orders made without notice fall outside the Brussels Regulation (see Denilauler above) and ex parte freezing injunctions will therefore continue to be treated as unenforceable in England.
An alternative for claimants wishing to enforce a European freezing injunction in England, is to apply for a free-standing injunction in support of foreign proceedings. In England, section 25 of the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997) provides that courts may grant interim relief in support of foreign court proceedings.
An application for such a free-standing injunction is not necessarily straightforward, however, and in most cases will be more expensive and time-consuming than enforcement under the Brussels Regulation.
Conclusion
The D’Hoker case demonstrates that the enforcement of freezing injunctions raises particular difficulties under the Brussels Regulation. As a result of those difficulties it is not always a simple matter to ensure the reciprocal enforcement of freezing injunctions within the European Union.
Trend to Watch: Look for the English High Court to Clarify the Brussels Regulation as they apply to Freezing Injunctions