Debtors outside England and Wales
by David Carter on 03 December 2010
If your company is involved in international business, it is quite likely you may come up against a debtor who is based outside England and Wales, as you would normally sue the defendant in their usual country of residence, regardless of nationality. If they are based in the EU, the system is quite straightforward. Outside the EU is a little more involved.
EU debtors
In December 2008 a new procedure was introduced called the European Order for Payment Procedure (EOP). This makes it quicker and easier to recover uncontested debts where the debtor lives in a different EU state.
The forms and processes have been standardised for all member states and can be used for commercial and civil cases. Once you have the order (which operates in a very similar way to a judgment) you don’t then have to take intermediate steps to enforce the decision in England or Wales.
To use the procedure there must be a contract in place, unless there was an agreement or the debt has been admitted. The defendant may not be bankrupt/insolvent to use this procedure.
To start your claim, you can download the forms from the Ministry of Justice website and complete Form A in Annex I to get started. Once you have submitted this to the appropriate court, there will be a court fee dependant on the amount of the claim (guidance is available in the Government leaflet EX50.
Normally the court issues the order within 30 days. If the defendant contests the claim, he must lodge a statement of opposition with the issuing court within 30 days of the order being served. If he doesn’t contest it, it becomes enforceable automatically. Enforcement is undertaken locally, according to the rules of that state,
Non EU judgments
If you obtain a final judgment for money against a defendant in a non EU country, you can have it enforced in England/Wales. You will normally apply for a Summary Judgment which recognizes the foreign judgment in England/Wales and obtains an English judgment that allows you to enforce the foreign judgment in England/Wales.
Without undertaking these proceedings, you will not be able to enforce the foreign judgment in England/Wales.
The defendant must agree to the jurisdiction of the court in England and Wales; this may be achieved through the personal serving of papers on the individual defendant or their solicitors (providing they have confirmed in writing that they are acting on behalf of the defendant).
Companies are considered to be present in jurisdiction if they have an office or a representative at a fixed address. Service can be to the registered office or to a senior employee/partner. If the company has no presence in the UK, the Court will need to give permission to serve the originating process out of the jurisdiction.
Once the summary judgment is obtained, enforcement can proceed as it would normally do for any judgment issued in England and Wales.
Legal advice
Before embarking on any of the above, I strongly recommend that creditors take advice from a solicitor experienced in this area.
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Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of Sheriffs High Court Enforcement Ltd, trading as The Sheriffs Office. Sheriffs High Court Enforcement Ltd does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site. Please note that this article does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of England and Wales frequently changes. The author strongly advises the reader to take legal advice before embarking on any enforcement action.
