ENFORCEMENT OF JUDGMENTS 2021 - IRELAND JON LEGORBURU, MARK O'SHAUGHNESSY, MONA COSTELLOE AND ROBERT MCDERMOTT BYRNEWALLACE LLP
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Definitive global law guides offering comparative analysis from top-ranked lawyers Enforcement of Judgments 2021 Ireland Jon Legorburu, Mark O’Shaughnessy, Mona Costelloe and Robert McDermott ByrneWallace LLP practiceguides.chambers.com
IRELAND
Law and Practice
Contributed by:
Jon Legorburu, Mark O’Shaughnessy,
Mona Costelloe and Robert McDermott
ByrneWallace LLP see p.20
CONTENTS
1. Identifying Assets in the Jurisdiction p.3 4. Arbitral Awards p.16
1.1 Options to Identify Another Party’s Asset Position p.3 4.1 Legal Issues Concerning Enforcement of
Arbitral Awards p.16
2. Domestic Judgments p.4
4.2 Variations in Approach to Enforcement of
2.1 Types of Domestic Judgments p.4 Arbitral Awards p.17
2.2 Enforcement of Domestic Judgments p.5 4.3 Categories of Arbitral Awards Not Enforced p.17
2.3 Costs and Time Taken to Enforce Domestic 4.4 Process of Enforcing Arbitral Awards p.17
Judgments p.6
4.5 Costs and Time Taken to Enforce Arbitral
2.4 Post-judgment Procedures for Determining Awards p.18
Defendants’ Assets p.7
4.6 Challenging Enforcement of Arbitral Awards p.18
2.5 Challenging Enforcement of Domestic
Judgments p.8
2.6 Unenforceable Domestic Judgments p.9
2.7 Register of Domestic Judgments p.9
3. Foreign Judgments p.10
3.1 Legal Issues Concerning Enforcement of
Foreign Judgments p.10
3.2 Variations in Approach to Enforcement of
Foreign Judgments p.11
3.3 Categories of Foreign Judgments Not
Enforced p.12
3.4 Process of Enforcing Foreign Judgments p.13
3.5 Costs and Time Taken to Enforce Foreign
Judgments p.14
3.6 Challenging Enforcement of Foreign
Judgments p.14
2
IRELAND Law and Practice
Contributed by: Jon Legorburu, Mark O’Shaughnessy, Mona Costelloe and Robert McDermott,
ByrneWallace LLP
1. IDENTIFYING ASSETS IN has been appointed, or whether the company
THE JURISDICTION has been dissolved.
• Tracing agent – a tracing agent can carry out
1.1 Options to Identify Another Party’s an investigation into the asset position of
Asset Position another party. For example, a tracing agent
It is important that an assessment of an oppos- might establish the details reflecting the
ing party’s asset position is an ongoing process actual property of the debtor, or establish
and is carried out prior to, during and after pro- whether the debtor has any offshore property
ceedings have concluded. The opposing party’s and assets.
asset position will often inform both litigation • The Aircraft Register – the Irish Aviation
strategy and the enforcement options most Authority, which is the sole authority for the
likely to yield a return for the judgment holder. registration of civil aircraft in Ireland, provides
In addition, even where acting for a defendant, a register of civil aircraft registered within the
it is important to consider a plaintiff’s financial state.
position. Where concerns arise about a plaintiff’s • The Personal Bankruptcy Register – the Per-
ability to discharge a defendant’s costs should sonal Bankruptcy Register contains details of
the plaintiff’s claim be unsuccessful, a defendant bankruptcies declared by the High Court of
may apply to court for an order for security for Ireland, and is kept in the Examiner’s Office
costs against that plaintiff. If an order for security of the High Court. While this Register will not
for costs is made, the plaintiff will be required to provide exact details on the asset position
lodge a sum of money into the court to meet the of another party, it will give information as to
costs of the defendant in the proceedings if the whether a party has been adjudicated bank-
defendant is successful. rupt.
• The Register of Personal Insolvencies – the
There are a number of steps that a party can Register of Personal Insolvencies is subject
take to assist in identifying an opposing party’s to statutory instrument S.I. No 334 of 2002,
asset position. the European Communities (Personal Insol-
vency) Regulations 2002. It contains details of
Information that Is Publicly Available personal insolvencies declared by the courts
The asset position of an opposing party may be of the other member states of the European
publicly available in some instances, including Union. While this Register will not provide
the following. exact details on the asset position of another
party, it will give information as to whether
• The Irish Land Registry – the Irish Land Reg- a party has entered a personal insolvency
istry sets out the ownership of land or prop- arrangement.
erty, and confirms whether any charges are
registered over the land or property. Interim Options to Identify the Asset Position
• The Companies Registration Office (CRO) of Another Party
– the CRO provides details about a com- Where a judgment holder has identified the
pany’s directors, shareholders and registered assets of a judgment debtor within the jurisdic-
charges relating to a company. The CRO also tion, they can then consider obtaining a court
confirms the status of the company and pro- order to freeze the judgment debtor’s assets, or
vides the date on which a company has gone to identify the judgment debtor’s assets. The fol-
into liquidation, the date on which a receiver lowing orders may be obtained.
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Law and Practice IRELAND
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• Mareva injunction – this is a freezing order, judgment debtor by commencing examina-
which is granted to prevent a debtor from tion proceedings in the District Court, pursu-
dissipating or removing assets before or after ant to Order 53 of the District Court Rules and
a judgment, and will allow for the creditor to the Enforcement of Court Orders Act, 1926, as
recover the debt owed. A creditor may apply amended. The court may also consider granting
to the High Court for a Mareva injunction. an instalment order against the judgment debtor
• Asset disclosure orders – this type of order is in the amount in which the debtor can afford
usually ancillary to Mareva injunctions, and is to pay. This is discussed in more detail in 2.4
a means to compel a debtor to disclose the Post-judgment Procedures for Determining
full extent and location of their assets. Defendants’ Assets.
• Anton Piller order – this order is granted
where there are concerns that a party might
move assets or conceal evidence; search 2. DOMESTIC JUDGMENTS
orders may also be granted to search a prem-
ises. 2.1 Types of Domestic Judgments
• Court order – a creditor may obtain an order The types of judgments that may be obtained
to compel the judgment debtor to disclose in Ireland are wide ranging. A money judgment,
the location, identify assets or reveal the whereby the defendant is ordered by the court to
extent to which funds are available. pay a sum of money to the plaintiff, is the most
• European account preservation orders common form of judgment. A money judgment
(EAPOs) – these orders can be granted in Irish may arise in the form of an order to pay a spe-
courts pursuant to Regulation (EU) 655/2014. cific sum in damages, or where the proceedings
An EAPO will prevent the transfer or with- are to recover a debt or liquidated sum.
drawal of funds held by a debtor in a bank
account located in another member state. In addition, judgment may take the form of:
In order for such an order to be granted, the
creditor must establish that there is a real and • declaratory relief, whereby the court will
urgent risk that the subsequent enforcement determine the legal relationship between the
of the creditor’s claim against the debtor will parties;
be impeded or made substantially more dif- • an order of specific performance of an agree-
ficult if the order is not granted. ment or contract;
• an order for possession of property; or
Post-judgment Options to Identify the Asset • an injunction either prohibiting a party from
Position of Another Party taking a particular action or requiring a party
Pursuant to Order 42 of the Rules of the Superior to perform a particular action.
Courts, a judgment holder may apply to the court
for discovery in aid of execution. The purpose of There are various other specific types of judg-
this is to examine the judgment debtor’s asset ments/orders that may be obtained depending
and financial position to assist in the execution on the type of reliefs sought in the proceedings;
of the judgment debt. This process applies to for example, in judicial review proceedings, an
both money and non-money judgment. order quashing a decision of a public body.
Where a party has obtained judgment, they Broadly speaking, judgment may be granted in
may also determine the asset position of the one of the following manners.
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IRELAND Law and Practice
Contributed by: Jon Legorburu, Mark O’Shaughnessy, Mona Costelloe and Robert McDermott,
ByrneWallace LLP
• Judgments can be granted in default; for enforce. The sheriff may seize and sell the
example, where a defendant has failed to goods and property of a judgment debtor to
enter an appearance, or has failed to deliver discharge the judgment debt. Once issued,
its defence within the timeframe prescribed in execution orders are generally valid for one
the Rules of the Superior Courts. year and may then be renewed.
• An interim or interlocutory order is typically • A judgment mortgage can be registered
one that relates to matters in the proceed- against the property of the judgment debtor.
ings that are procedural in nature, with final Once registered, this judgment remains a
determination to be made at the substantive charge on the title for a period of 12 years,
hearing of the matter. This could include an and the debtor cannot deal with the property
interim injunction ordering or prohibiting the within that period unless the debt is dis-
performance of certain acts, or freezing a per- charged.
son’s assets so they are available to a plaintiff • Where a judgment mortgage has been regis-
to enforce against if judgment is ultimately tered against the property, the creditor may
obtained. make an application for a well-charging order
• A final judgment may be obtained and a full and an order for sale to compel the sale of
trial on the merits. This will determine the the property, the proceeds of which would
rights between the parties and will dispose of go towards discharging the debt owed to the
the proceedings, or a part of the proceedings creditor.
(for example, an application for discovery), • A garnishee order can be obtained where
subject to any right of appeal. the debtor has no assets but there is money
• A summary judgment may be obtained where due and owing from a third party. The court
the proceedings relate to a debt or liquidated may order that the third party pay the creditor
sum. The summary judgment procedure is a directly. This type of judgment is only used in
simplified and (ordinarily) quicker means of cases where there are no goods to be seized
obtaining judgment. In such proceedings, the to satisfy the judgment.
matter is heard and determined on affidavit • Bankruptcy proceedings may be brought
evidence only; however, summary judg- against the judgment debtor in the High
ment will only be awarded where the court is Court. During this process, the property and
satisfied that the claim against the judgment assets of the debtor are transferred to the
debtor is easily quantifiable, and the defend- official assignee in bankruptcy to be sold by
ant has no bona fide defence to the claim. them for the benefit of those to whom the
individual owes debts. A debtor will be dis-
2.2 Enforcement of Domestic charged from bankruptcy after a year.
Judgments • Make a petition to wind up the judgment
The procedures adopted when enforcing a debtor’s company pursuant to the Compa-
domestic judgment are dependent on the nature nies Act, 2014. Where the court finds that the
of the judgment. The following methods can be company is deemed unable to pay its debts
used to enforce a domestic monetary judgment. (or where the court is of the belief that it is
just and equitable to do so), it will grant an
• Enforce the execution against goods – a order to wind up the company. If the order is
plaintiff with a monetary judgment can obtain granted, an official liquidator will be appoint-
an execution order against goods, which ed. The role of the official liquidator is to take
is sent to the sheriff or county registrar to possession of the company’s property, sell
5Law and Practice IRELAND
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ByrneWallace LLP
the company’s assets, list the debt owed to pay, and the court will generally not grant an
by the company, and pay the debts owed order for committal where the judgment debtor
to creditors in order of the list of preferential is unable to discharge the debt.
creditors.
• Apply to the court to appoint a receiver over Section 53(1) of the Companies Act, 2014, as
the judgment debtor’s assets by way of equi- amended, provides for the enforcement of judg-
table execution. This procedure involves the ments against companies and their officers. This
appointment of a receiver by the court over, section operates by putting the officers of the
for example, proceeds of the sale of an asset company on notice that if the company fails to
by the debtor with a view to satisfying the comply with an order or judgment of the court,
debt. The decision to appoint a receiver is at then attachment and committal proceedings
the court’s discretion, and this type of appli- may be commenced by the judgment holder.
cation can be made by way of an ex parte Alternatively, the assets of the directors or com-
application, without notice to the judgment pany officials, or the assets of the company,
debtor. may be sequestered. This section is coercive
• Registering the judgment will not automati- in nature, rather than punitive, and seeks to
cally enforce it, but is a means of encouraging encourage compliance with orders and judg-
the debtor to seek to discharge the judgment ments of the court.
debt.
Section 53(2) of the Companies Act ensures
Where the court has granted injunctive or that company officers are put on notice of the
declaratory relief against the judgment debtor, potential application for attachment, or seques-
or has granted an order for specific performance tration of company property, by putting a penal
to enforce a judgment, and should the debtor endorsement on the order or judgment prior to
fail or refuse to abide by an order of the court, service thereof. To successfully apply for an order
the judgment holder may issue attachment and for attachment and committal, or to apply to
committal proceedings against the judgment have the company’s assets sequestered, penal
debtor. This is set out in the Enforcement of endorsement must be included on the order or
Court Orders Act, 1926, as amended. With leave judgment. The court will require evidence of ser-
of the court, a writ of attachment is issued and vice of the order or judgment on the judgment
directs the sheriff to attach the judgment debtor debtor containing the penal endorsement.
and bring them before the court.
2.3 Costs and Time Taken to Enforce
The court may issue an order for attachment to Domestic Judgments
be directed at the judgment debtor, to compel Generally, the cost and the length of time
them to come before the court. An order for com- involved in enforcing a judgment will depend on
mittal may be granted, resulting in the judgment the enforcement methods adopted, the com-
debtor being imprisoned should they not comply plexity of a particular case, and the nature and
with the court order. This is another method to value of the assets involved, as well as the extent
enforce a judgment, the purpose of which is to of any challenge to the enforcement method.
compel the judgment debtor to comply with the
directions of the court. However, this method For example, while it is relatively straightforward
should be used as a last resort, and the court to issue an execution order and engage the
will look to the ability of the judgment debtor sheriff to seek to levy execution, the procedures
6IRELAND Law and Practice
Contributed by: Jon Legorburu, Mark O’Shaughnessy, Mona Costelloe and Robert McDermott,
ByrneWallace LLP
involved to issue and prosecute proceedings to by another party, the court may order against
obtain a well-charging order and sell the proper- this other party. The application may be made
ty of the judgment debtor on foot of a judgment ex parte grounded on an affidavit, and generally
mortgage is far more complex and itself may be examination will take place before the master of
defended, thus increasing the length of time and the High Court, or in the Circuit Court. The court
costs to enforce the judgment. may make an order that the judgment debtor will
attend for examination as to whether any debts
The Rules of the Superior Courts further provide are owed to the judgment holder, and what prop-
that an execution order or an order of commit- erty or other means the debtor has of satisfying
tal, if unexecuted, shall remain in force for one the judgment. The judgment debtor may also
year only from its issue, unless renewed. The be required to produce books or documents
Rules also provide that a party must seek leave relevant to those matters.
of court to enforce a judgment beyond six years
from the date of judgment. Therefore, prelimi- Examination in the District Court
nary applications may be required, depending The application should be made in the district
on the length of time that has passed, before any court area in which the judgment debtor resides.
steps to have the judgment enforced are taken. A creditor may summon a judgment debtor to
appear before the District Court. The District
Court fees will also be incurred in stamp duty Court will direct that the debtor then deliver a
on court documents. Where the sheriff has been statement of means, which sets out their assets
engaged to enforce a judgment, there may be and liabilities, as well as any other income and
additional fees payable as set out in the Sheriff’s expenditure, or persons to whom the debtor is
Fees and Expenses Order 2005, made under the morally or legally obliged to support financially.
Enforcement of Court Orders Act 1926. Sher- The judgment debtor must then appear again
iffs are self-employed and compensated on a before the District Court and can be cross-
commission basis known as poundage. The fee examined on the contents of the statement of
payable at the time of lodgement with the sheriff means. Where the debtor is a company, any
of an execution order will vary according to the officer of the company may be examined.
contents of the execution order.
Instalment Orders
2.4 Post-judgment Procedures for At the examination, if it is concluded that the
Determining Defendants’ Assets judgment debtor is able to pay their debts, but
A judgment holder may apply to the court to seek cannot pay the debt in a single instalment, the
information as to the judgment debtor’s assets, court may grant an instalment order whereby the
or their financial position generally. If successful, debt will be discharged in a number of instal-
the court will then order the judgment debtor to ments as directed by the court. Such an order
disclose their financial position. will not be made if it is determined that the debt-
or cannot pay the debt owed. Either the creditor
Discovery in Aid of Execution or the debtor can make an application for an
The court has a wide discretion in respect of instalment order before the District Court, with
such an application, and it is not confined solely a right of appeal to the Circuit Court against the
to the judgment holder; it may be made against making of the order.
any interested party. For example, where the
assets of the judgment debtor are co-owned
7Law and Practice IRELAND
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ByrneWallace LLP
2.5 Challenging Enforcement of ing a clear breach of constitutional rights or
Domestic Judgments justice.
Issuing an Application to Set Aside a • Other special circumstances – the court has
Judgment jurisdiction to set aside a judgment or order in
A defendant may challenge the enforcement of a special or unusual circumstances. The court
judgment by applying to set aside the judgment may decide to set aside a judgment even
obtained against them. Such an application can where there has been no accidental slip in the
be made under the following circumstances. judgment as it was drawn up, and it correctly
states what the court decided and intended.
• Where a judgment or order was obtained This would only happen in very rare cases
following non-appearance at trial – Order 36, where it is deemed to be in the interests of
Rule 33 of the Rules of the Superior Courts justice to set aside the judgment or order.
sets out that where a judgment or order is
obtained where one party does not appear, Appealing the Judgment or Order
the judgment or order may be set aside by A judgment or order may also be appealed to a
the court as it sees fit, once the application higher court that has jurisdiction to deal with the
is made within six days of the trial. The court appeal. In civil matters, appeals are dealt with in
may set aside the judgment on the basis the following ways.
that in the interests of justice, the defendant
should be given a chance to present their • Appeals from the District Court are heard in
case, and also that the defendant has a good the Circuit Court, and must be made within
defence and a reasonable prospect of suc- 12 days of the judgment or order.
cess. A defendant will generally have to show • Appeals from the Circuit Court are heard in
that there has been some irregularity or short- the High Court, and must be made within ten
coming in the judgment. Where the absence days of the judgment or order.
of the defendant was deliberate, the court will • Appeals from the Master’s Court are made to
not set aside the judgment. the High Court within six days from the date
• Where a judgment or order does not correctly of perfection of the order, or if the order was
record the decision of the court – at common made ex parte, from notice of the said order,
law, the courts have jurisdiction to amend a or if refused, from the date of such refusal.
previous court order or judgment, even where • Appeals from the High Court are made in the
it has been deemed final and has been per- Court of Appeal, either 10 or 28 days from the
fected, so that it will correctly reflect the order date of perfection of the order, depending on
that was made to ensure that the true and the nature of the case. The Court of Appeal
final decision of the court is carried out. may also rule on a question of law submitted
• Where a judgment or order was obtained to it by the Circuit Court.
fraudulently. • Appeals from the High Court or the Court of
• Where there was bias on the part of the court Appeal can also be made to the Supreme
– a judgment or order may be set aside where Court, either within 10 or 28 days from the
the defendant can establish that there was date of perfection of the order, depending on
bias on the part of the court when granting the nature of the case.
the judgment. Such an application can only
be made in exceptional circumstances involv- Where a judgment is subject to appeal, this will
not prevent it from being enforced, unless there
8IRELAND Law and Practice
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ByrneWallace LLP
has been a stay of execution placed on the judg- in some newspapers and in commercial pub-
ment. The Irish courts have discretion to grant lications such as Stubbs Gazette. In addition,
a stay on execution pending determination of credit institutions record this information and an
an appeal. unpaid judgment may affect the debtor’s bor-
rowing powers.
In order for a domestic judgment to be enforced,
it must have been validly obtained and served Before registering a judgment, a creditor must
on the judgment debtor in accordance with Irish inform the judgment debtor that it intends to reg-
Law. Such a judgment must be final and conclu- ister the judgment, and give the judgment debtor
sive to be enforceable, and cannot be subject an opportunity to pay the debt.
to further consideration by a court. A defend-
ant/judgment debtor may dispute that the court A judgment debtor can apply to have the regis-
did not have jurisdiction to hear the matter, or a tration removed once the debt has been satis-
judgment debtor may also argue that the pro- fied. In order to satisfy the judgment, a debtor is
ceedings were not properly served on them. required to submit the following documents to
the Central Office of the High Court:
2.6 Unenforceable Domestic
Judgments • satisfaction piece – this is a document drawn
Generally, domestic judgments will be enforced, up and executed by the creditor confirming
subject to the grounds to challenge enforcement that the debt has been satisfied; this docu-
set out in 2.5 Challenging Enforcement of ment should be stamped with court stamp
Domestic Judgments. However, certain judg- duty of EUR25; and
ments may not be enforced, such as: • a Certificate of Satisfaction.
• judgments where there is a stay of execution The judgment can then be marked as “satisfied”
are not capable of being enforced until the on the Register. In order to do so, a debtor is
stay has expired; and required to submit the following:
• the Statute of Limitations, 1957 provides that
no action can be brought on a judgment after • a Memorandum of Satisfaction on the Reg-
the expiry of 12 years from the date on which istration of a Judgment stamped with court
it became enforceable. duty of EUR25; and
• a Certificate of the Entry of a Memorandum of
2.7 Register of Domestic Judgments Satisfaction on the Registration of a Judg-
Judgments may be registered in the Central ment.
Office Judgments Section of the High Court,
and must be available for inspection to the As highlighted above, while registering a judg-
public. All judgments – irrespective of whether ment will not automatically enforce the judg-
they were obtained in the District, Circuit or ment, registration of itself will adversely affect
High Court – are registered in the Judgments a debtor’s credit rating, and may prevent a
Section of the High Court. Lists of judgments debtor from borrowing further. This is a means
that are available for public viewing may also of encouraging the debtor to seek to discharge
be published by credit reference agencies. The the judgment debt.
name and address of the parties, together with
details of the judgment amount, are published
9Law and Practice IRELAND
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3. FOREIGN JUDGMENTS act so as to prevent conflicting judgments from
arising.
3.1 Legal Issues Concerning
Enforcement of Foreign Judgments The following is required to make an application
Enforcement of judgments in Ireland is regulated for enforcement under the Recast Regulation in
by the following instruments: Ireland:
• Regulation (EC) No 44/2001 (“Brussels I”); • a copy of the judgment that is full and final,
• Regulation (EU) No 1215/2012 (the “Recast and was validly obtained in the foreign juris-
Regulation”); diction;
• the Lugano Convention; • a standard form certificate issued by the
• the Hague Choice of Court Convention (the court in the foreign jurisdiction; and
“Hague Convention”); and • a certified copy of the judgment translated
• Common Law. into English/Irish.
Brussels I, the Recast Regulation, the Lugano Such applications are made on an ex parte
Convention and the Hague Convention are motion grounded on an affidavit, and made
incorporated in Irish law under Order 42A of the before the master of the High Court.
Rules of the Superior Courts. Under the Recast
Regulation, the Lugano Convention and the The Lugano Convention
Hague Convention, a creditor can proceed with The Lugano Convention is an international treaty,
an application to recognise and enforce a foreign commonly described as the “Double Convention
judgment without having to institute fresh pro- Treaty”, regulating both international jurisdiction
ceedings in Ireland, although a creditor has the (ie, the question of whether a court is competent
option to issue fresh proceedings should they to hear a cross-border case) and the recogni-
wish to do so. tion and enforcement of foreign judgments in
civil and commercial matters between EU and
Brussels I and the Recast Regulation European Free Trade Association (EFTA) states.
The Recast Regulation replaced Brussels I In April 2020, the UK applied to accede to the
and came into effect in January 2015 and now Lugano Convention in its own right. The UK was
applies to all proceedings in EU member states previously a party to the Convention by virtue of
commenced on or after that date. All judgments its membership of the EU, but this is no longer
given prior to January 2015 remain subject to the case post-Brexit.
Brussels I.
The Lugano Convention has a similar framework
The Recast Regulation provides that a foreign to the Recast Regulation; the Recast Regulation
judgment to which the regulation applies – ie, ensures parties’ contractual choice of jurisdic-
a judgment issued in another member state – tion is enforced and that judgments from mem-
is enforceable in an Irish court. Judgments of ber states are recognisable and enforceable
other member states have the same force and across the EU. While the non-EU parties have
effect as a judgment given by an Irish court. This approved the UK’s application, in May 2021 the
proves to facilitate and simplify the process of European Commission formally communicated
recognising and enforcing judgments between to the European Parliament and the Council of
member states, and requires member states to the European Union that it opposes the UK’s
10IRELAND Law and Practice
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ByrneWallace LLP
application. This may have consequences for recognition of a foreign judgment to be refused
the recognition and enforcement of UK judg- on the grounds that the foreign judgment was
ments in Ireland. given in default of appearance by the judgment
debtor. This may be done where the judgment
The Hague Convention debtor was not served with the document that
The Hague Convention applies in relation to dis- issued the foreign proceedings in sufficient time
putes involving parties domiciled in countries and in such a way as to enable them to arrange
that are signatories to the Hague Convention, for a defence. The judgment debtor will not
which includes the EU, the UK, Australia and have this option where they failed to commence
the USA. The Hague Judgments Convention proceedings to challenge the foreign judgment
was concluded in 2019, but has not yet come when it was possible to do so.
into force.
The Approach to Enforcement of Foreign
Common Law Judgments under the Lugano Convention
Common law will govern the enforcement of The Lugano Convention also has specific juris-
foreign judgments where the regimes list above diction provisions depending on the subject
does not apply. For foreign judgments under matter of the judgment. The Convention applies
common law, it is the court’s discretion whether to the enforcement of judgments from EFTA
to recognise and enforce a foreign judgment. member states. Similarly to the EU regime, a
However, as a rule, the approach of the Irish foreign judgment will not be recognised under
courts to proceedings seeking recognition and the Lugano Convention where it was given in
enforcement is generally positive, provided the default of appearance. Also, a judgment includes
judgment is for a definite sum, is final and con- a decree, order, decision or writ of execution, as
clusive, and has been given by a court of com- well as a decision on the determination of costs
petent jurisdiction. or expenses by the court. This includes non-
monetary judgments and interim orders.
3.2 Variations in Approach to
Enforcement of Foreign Judgments The Approach to Enforcement of Foreign
The approach to the enforcement of foreign Judgments under the Hague Convention
judgments by the Irish courts will depend on the The Hague Convention allows for the enforce-
applicable regime. ment of monetary judgments, final injunctions
and judgments in default of appearance. It
The Approach to Enforcement of Foreign does not allow for the enforcement of interim
Judgments under the EU Regimes orders. The enforcement of non-monetary judg-
Brussels I and the Recast Regulation have spe- ments will depend on the state dealing with the
cific jurisdiction provisions depending on the matter, while recognition and enforcement of a
subject matter of the judgment. The EU regimes judgment may also be refused if the judgment
define “judgment” broadly, and include any judg- awards exemplary or punitive damages that do
ment given by a court or tribunal of a member not compensate a party for actual loss or harm
state, and include a decree, order, decision or suffered.
writ of execution, as well as a decision as to the
determination of costs or expenses by the court.
This includes non-monetary judgments and
interim orders. A judgment debtor can apply for
11Law and Practice IRELAND
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The Approach to Enforcement of Foreign sions in respect of a foreign judgment given in
Judgments under Common Law default are provided for in the Lugano Conven-
Common law enforcement principles apply in tion.
respect of enforcement of judgments where
the originating countries are neither EU nor Circumstances where the Judgment Debtor
EFTA member states. Common law allows for Was Incorrectly Served
the enforcement of monetary judgments only, The Recast Regulation and the Lugano Conven-
excluding those in relation to taxes, fines or tion provide that a foreign judgment should not
penalties, or interim orders. Due to the fact that be enforced in a domestic court where the judg-
under common law a foreign judgment does not ment was not validly obtained or was not cor-
automatically have direct enforcement, the party rectly served on the judgment debtor.
enforcing the judgment must instead commence
new proceedings in the Irish courts, and sue on Circumstances under the Recast Regulation
the foreign judgment as a debt. In addition, a where a Foreign Judgment Will Not Be
judgment may be unenforceable at common law Enforced
where the foreign court did not have subject- Article 1 of the Recast Regulation sets out limits
matter jurisdiction. on the scope of its applicability. The Regulation
does not apply to the following:
3.3 Categories of Foreign Judgments
Not Enforced • revenue, customs or administrative matters;
The categories of foreign judgments that are not • the liability of the state for acts and omissions
enforced largely depend on the regime under in the exercise of state authority;
which the judgment operates. • family law matters;
• bankruptcy or insolvency matters; and
Interim Judgments • arbitral awards.
Interim judgments are generally enforceable
under Brussels I and the Recast Regulation, but Circumstances under the Lugano Convention
they will only be enforceable where the judgment where a Foreign Judgment Will Not Be
debtor was given notice of the hearing at which Enforced
the judgment was given, the judgment contain- The Lugano Convention also sets out limits on
ing the order is served on the defendant before the scope of its applicability. The Convention
enforcement, and where the judgment debtor does not extend to the following:
was given an opportunity to respond.
• tax, customs and administrative matters;
Judgments Given in Default of Appearance • bankruptcy or insolvency matters;
Pursuant to Article 45 of the Recast Regulation, • family law matters; and
a judgment debtor can apply for recognition of • arbitral awards.
a foreign judgment to be refused on the basis
that the foreign judgment was given in default Circumstances under the Hague Convention
of appearance by the judgment debtor. There where a Foreign Judgment Will Not Be
is an exception to this rule, whereby if the judg- Enforced
ment debtor had an opportunity to commence The Hague Convention also sets out limits on the
proceedings to challenge the enforcement of the scope of its applicability. The Convention does
judgment, but failed to do so. The same provi- not extend to the following:
12IRELAND Law and Practice
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ByrneWallace LLP
• family law matters; to be sworn by, or on behalf of, the judgment
• insolvency; and holder. This affidavit needs to exhibit the neces-
• arbitral awards. sary proofs (ie, the foreign judgment or order) to
enable the requisite order to be made regarding
Circumstances under Common Law where a recognition and enforcement of the judgment.
Foreign Judgment Will Not Be Enforced
At common law, a foreign judgment will not be The Process of Enforcing a Judgment under
enforced where it is considered to be contrary Common Law
to the principles of natural justice and public There are certain requirements that a foreign
policy. A foreign judgment might not be deemed judgment must satisfy before it can be recog-
enforceable where it has not been properly nised at common law and subsequently enforced
served on the judgment debtor, where it has not in this jurisdiction. These requirements are that
been deemed final, where the judgment debtor the judgment sought to be enforced:
has not been given the chance to defend the
proceedings, or where the originating court did • must be for a definite liquidated sum (ie, a
not have jurisdiction to deal with the matter. judgment for a definite sum of money);
• must be a final, conclusive binding in its own
3.4 Process of Enforcing Foreign jurisdiction; and
Judgments • must have been handed down by a court
The Process of Enforcing a Judgment under of competent jurisdiction, as determined by
the Recast Regulation domestic common law rules of private inter-
Under the Recast Regulation, judgments are national law.
automatically enforceable, and a judgment made
in one member state will generally be recognised An application for recognition and enforcement
and enforceable in another member state. Under of a foreign judgment pursuant to common law
Brussels I, a declaration of enforceability was is brought through the summary judgment pro-
required for judgments to be issued in anoth- cedure, where the party seeking to enforce the
er member state. The Recast Regulation now judgment is required to issue plenary proceed-
provides that in most cases a judgment in any ings seeking declaration that the foreign judg-
member state will be automatically recognised ment is enforceable in Ireland. Along with a
in another member state without the need for a document setting out the relief sought from the
declaration of enforceability. master of the High Court, a grounding affidavit
will need to be sworn by, or on behalf of, the judg-
The Process of Enforcing a Judgment under ment holder. This affidavit needs to exhibit the
the Lugano Convention or under the Hague necessary proofs to enable the requisite order to
Convention be made regarding recognition and enforcement
An application for recognition and enforcement of the judgment. An affidavit of service may also
of a foreign judgment pursuant to the Lugano be required to show that the proceedings were
Convention and the Hague Convention follows served on the judgment debtor.
a similar process. Such an application is made
on an ex parte basis before the master of the The judgment is effectively treated as akin to
High Court. The judgment holder will require a contact debt and, as such, the application
a document setting out the relief sought from must be brought within six years of the date on
the master, and a grounding affidavit will need which the foreign judgment was given or made.
13Law and Practice IRELAND
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ByrneWallace LLP
To recognise and enforce a foreign judgment, they were made, subject to the condition that no
proceedings must be commenced in the High judgment may be executed after six years from
Court by way of originating summons. Notice of the date on which it was given or made without
these proceedings should then be served on the the permission of the courts.
judgment debtor.
Where an application is being made pursuant
3.5 Costs and Time Taken to Enforce to common law, it will take significantly longer
Foreign Judgments to have the foreign judgment recognised and
The Lugano Convention and the Hague Conven- deemed enforceable, as the application is on
tion do not specifically provide a timeline within notice to the judgment debtor, which must be
which a foreign judgment should be enforced served with the application documents. There
in another jurisdiction. As a foreign judgment is can be significant delays in attempting to serve
treated with the same conditions as an Irish judg- a judgment debtor who resides in, or does busi-
ment, a foreign judgment remains in full force ness outside, Ireland. Furthermore, once the
and effect for 12 years from the date on which it judgment debtor has been served, it is possi-
was given or made, subject to the requirement ble that the application may be contested, or
to make a court application where six years have in some circumstances the matter might be
passed since the date on which the judgment adjourned, which would further increase the time
was given or made. This is discussed in more for the judgment to be enforced.
detail in 2.3 Costs and Time Taken to Enforce
Domestic Judgments. The costs involved in enforcing a foreign judg-
ment will depend on the particular case; there
Due to the fact that an application pursuant may be solicitors’ and barristers’ fees, as well
to the Lugano Convention or the Hague Con- as the costs incurred in bringing an application
vention is on an ex parte basis, the process to for recognition and enforcement pursuant to the
recognise and enforce a judgment is relatively Lugano Convention or the Hague Convention.
straightforward, whereby once all proofs are in As previously mentioned, due to the fact that
order, the foreign judgment should be recog- under Brussels I and the Recast Regulation, a
nised and deemed enforceable on the date the foreign judgment is enforced under the same
application is heard by the court. conditions as a domestic judgment, the costs
involved will be similar to the costs involved in
Under Brussels I and the Recast Regulation, a a domestic judgment. See 2.3 Costs and Time
foreign judgment to which the regulation applies Taken to Enforce Domestic Judgments. With
is enforceable in Ireland without any declara- regard to bringing an application pursuant to
tion of enforceability being required from an common law, additional costs may be incurred
Irish court. In addition, a foreign judgment will in respect stamp duty fees, and serving court
be enforced in Ireland under the same condi- documents on the judgment debtor.
tions as a judgment given by an Irish court. This
means the length of time it would take to enforce 3.6 Challenging Enforcement of Foreign
a foreign judgment would be very similar to the Judgments
length of time to enforce a domestic judgment. Challenging a Judgment under the Recast
In the same way that is provided by the Irish Regulation
court rules, foreign judgments remain in full force Where the judgment debtor challenges the rec-
and effect for 12 years from the date on which ognition or enforcement of a judgment pursu-
14IRELAND Law and Practice
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ByrneWallace LLP
ant to the Recast Regulation, they may apply judgment, in order to allow for the judgment
to court to: debtor to be present and contest the application,
should they wish to do so. As the enforcement of
• limit the enforcement proceedings to interim a foreign judgment under common law is akin to
or protective measures; the claim for a contract debt, the general princi-
• make enforcement conditional on the provi- ples applicable to the defence of a claim for such
sion of security on the part of the debtor; or a debt apply. A decision of the High Court can
• suspend the enforcement proceedings. be appealed within 28 days of the order being
made. Under common law, the Irish courts may
Challenging a Judgment under the Hague refuse jurisdiction on the grounds that Ireland is
Convention not the appropriate jurisdiction in which to seek
Under the Hague Convention, the judgment enforcement. In respect of specific defences
debtor may appeal the enforcement order within that may be raised by a judgment debtor to an
five weeks of service of the notice of enforce- application to recognise and enforce a foreign
ment. If the recognition and enforcement appli- judgment, these may include the following:
cation pursuant to the Hague Convention is
unsuccessful, the judgment holder can appeal • the judgment does not meet the criteria
the decision within five weeks of the order made required under common law in order for the
refusing the application. judgment to be recognised and deemed
enforceable; eg, where the judgment is
Challenging a Judgment under the Lugano contrary to public policy or natural justice, or
Convention where the original court did not have personal
When a foreign judgment is deemed enforceable jurisdiction consistent with Irish conflict of law
pursuant to the Lugano Convention, the judg- rules requiring the defendant’s submission to
ment debtor has one month from the date of the foreign court’s jurisdiction;
service to lodge an appeal of the relevant order. • the judgment was obtained fraudulently;
However, where the judgment debtor is domi- • the judgment might contradict an earlier judg-
ciled in a contracting state to the Lugano Con- ment based on the same facts involving the
vention other than Ireland, the timeframe for an same parties;
appeal is extended to two months of service. The • the matter might be statute barred;
judgment debtor is to be given notice of its enti- • as a matter of Irish law, for the court to
tlement to appeal an order of the master of the assume jurisdiction to enforce a foreign judg-
High Court permitting recognition and enforce- ment in Ireland, a “solid practical benefit”
ment, and it can bring an appeal to a judge of the must accrue to the applicant in pursuing the
High Court. Where an application for recognition proceedings in Ireland (Albaniabeg Ambient
and enforcement of a foreign judgment pursuant Shpk v Enel SpA and Enelpower SpA (High
to the Lugano Convention is unsuccessful, the Court, 8 March 2016, McDermott J)); for
judgment holder can appeal the decision within example, the defendant must have assets in
five weeks of the order refusing the application. the jurisdiction against which to enforce.
Challenging a Judgment under Common Law
Under common law, a judgment debtor is
required to be put on notice of the application
for recognition and enforcement of the foreign
15Law and Practice IRELAND
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ByrneWallace LLP
4. ARBITRAL AWARDS The High Court will determine whether a foreign
arbitral award is enforceable, and, in doing so,
4.1 Legal Issues Concerning will consider whether the subject matter of the
Enforcement of Arbitral Awards arbitration must be arbitrable, and whether the
Arbitration is a method of alternative dispute arbitration agreement made between the parties
resolution. Arbitration in Ireland is governed must be valid and fully operable.
by both the Arbitration Act 2010 (the “Arbitra-
tion Act”) and the New York Convention on the There is a right of appeal to the High Court for
Recognition and Enforcement of Arbitral Awards parties who dispute the arbitrator’s determina-
(the “New York Convention”). The Arbitration Act tion of jurisdiction. The High Court is the relevant
came into force on 8 June 2010 and now gov- court to rule on a challenge to the arbitrator’s
erns the law on arbitration in Ireland. It applies to determination on jurisdiction. For a domestic
both commercial international or foreign arbitral arbitral award, there are no grounds for disputing
awards, and domestic arbitral awards. The Arbi- the recognition and enforceability of an award
tration Act gives the force of law to the UNCI- under the Arbitration Act, and instead a party
TRAL Model Law on Commercial Arbitration (the must apply to the High Court to have the award
“Model Law”), which applies to all arbitrations set aside (as discussed below).
conducted in Ireland, whether domestic or inter-
national in nature. Order 56 of the Rules of the Arbitral Awards Cannot Be Appealed
Superior Courts sets out the procedure for court Section 23 of the Arbitration Act provides that an
applications in relation to arbitrations. arbitral award is enforceable in the same man-
ner as a court order or judgment. As an arbitral
The Arbitration Act incorporates the following award is final and binding, there is no appeal
international agreements and conventions: mechanism against such an award. The only
recourse against an award is to apply to the High
• the New York Convention; Court to have it set aside on one of the grounds
• the Geneva Convention on the Execution of set out in Article 34(2) of the Model Law. This
Foreign Arbitral Awards 1927; application must be made within three months of
• the Protocol on Arbitration Clauses 1923; receipt of the award. Article 34(2) sets out that an
• the 1965 Convention on the Settlement of award may be set aside by the court only where
Investment Disputes between States and the party making the application provides proof
Nationals of Other States; of the following:
• the International Centre for Settlement of
Investment Disputes (ICSID). • the arbitration agreement is not valid under
the law of the originating state;
Jurisdiction of the Court • the party making the application was not
Jurisdiction must be held by the court before it given proper notice of the appointment of an
can consider enforcing an arbitral award. Sched- arbitrator or of the arbitral proceedings, or
ule 1, Chapter IV of the Arbitration Act gives pro- was otherwise unable to present their case;
vision to Article 16(1) of the Model Law, which • the arbitral award deals with a dispute that
sets out that an arbitrator/arbitral tribunal in Ire- does not fall within the terms of the submis-
land can rule on their own jurisdiction, and an sion to arbitration, or contains decisions on
arbitration clause is treated as an agreement, matters beyond the scope of the submission
independent of the other terms of a contract. to arbitration;
16IRELAND Law and Practice
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ByrneWallace LLP
• the composition of the arbitral tribunal or the • that the unsuccessful party has defaulted in
arbitral procedure was not in accordance with the obligations imposed upon them by the
the agreement of the parties; award.
• the subject matter of the dispute is not capa-
ble of settlement by arbitration under Irish Enforcement by Leave of the High Court
law; The application for leave of the High Court to
• the award is in conflict with public policy. enforce or enter judgment in respect of an arbi-
tral award is set out in Section 23(1) of the Arbi-
An application to have the award set aside must tration Act. Such an application can be made
be made within three months of the applicant by originating motion and is returnable before
seeking to set aside, having received the award. the president of the High Court or a judge of the
Decisions of the High Court in relation to the High Court nominated by the president, who will
enforcement of foreign arbitral awards cannot determine the outcome of the application. This is
be appealed, which provides additional clarity to provided for under Order 56, Rule 6 of the Rules
parties involved in the arbitral process. of the Superior Courts. An application can be
made under Articles 34 and 36 of the Model Law
An Arbitration Agreement Must Be in Writing to have an award set aside or to resist enforce-
An arbitration agreement must be in writing, ment of an award, but this is done at the discre-
recorded in any form, including electronic com- tion of the High Court.
munication. Article 7 of the Arbitration Act pro-
vides that any agreement must be in writing in 4.3 Categories of Arbitral Awards Not
order to be enforceable. Enforced
Whether a dispute is enforceable will largely
4.2 Variations in Approach to depend on the arbitration agreement itself, and
Enforcement of Arbitral Awards the provisions of the Arbitration Act. The Arbitra-
The Arbitration Act provides for two methods tion Act does not apply to the following matters,
of enforcement: by action or by leave of the therefore any awards made in respect of these
High Court. The majority of awards tend to be matters will not be enforceable:
enforced by leave of the High Court.
• disputes in relation to terms and conditions
Enforcement by Action of employment, or remuneration arbitrations
The appropriate proceedings for enforcement by under Section 70 of the Industrial Relations
action are dictated by the nature and value of the Act, 1946;
claim. To enforce an arbitral award by action, the • consumer disputes where the parties’ con-
following proofs are required: tract in standard terms and the contract is
valued under EUR5,000;
• the arbitration agreement; • arbitral awards provided for by a property
• the arbitral award; arbitrator under the Property Values (Arbitra-
• that the arbitrator was duly appointed in tion and Appeals), 1960.
accordance with the terms of the arbitration
agreement; 4.4 Process of Enforcing Arbitral
• that the subject matter of the dispute Awards
between the parties was within the scope of The Irish courts have shown a supportive
the arbitration agreement; and approach to the enforcement of arbitral awards.
17Law and Practice IRELAND
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ByrneWallace LLP
The High Court also specifically appoints a par- 4.5 Costs and Time Taken to Enforce
ticular judge as the arbitration judge to hear all Arbitral Awards
arbitration-related matters in the High Court. The length of time to enforce an arbitral award
Currently, that is Mr Justice Barniville. will depend on whether the award is disputed
and an application is made to the High Court
The vast majority of challenges to the award of under the Arbitration Act, which will increase the
an arbitrator are rejected, and the strong pre- time to enforce the award.
sumption in favour of upholding an arbitrator’s
award has been restated in a number of cases. The costs involved when executing the arbi-
Section 23(1) of the Arbitration Act provides that tral award will depend on the complexity of the
an arbitral award shall be enforceable in the state award and the amount of work involved. The
either by action or by leave of the High Court, in cost of an application to set aside the award to
the same manner as a judgment or order of that the High Court will also have to be taken into
court with the same effect. The Arbitration Act account. Where enforcement proceedings are
expressly excludes any possibility of an appeal required, the general principle that costs follow
in relation to the recognition and enforcement the event will apply; the party seeking enforce-
of an arbitral award, which further supports the ment will generally be awarded the costs of the
approach to the enforcement of arbitral awards enforcement proceedings.
in Ireland.
4.6 Challenging Enforcement of Arbitral
The High Court in Ireland has jurisdiction to deal Awards
with arbitral awards, pursuant to the Arbitration Article 6 of the Model Law sets forth the court
Act. Arbitral awards are enforceable under Order or authority that is to perform the functions of
56 of the Rules of the Superior Courts, or under deciding on challenges to decisions of an arbi-
Article 23 of the Arbitration Act. An application trator and to deciding upon applications to set
for enforcement of a judgment is made by an aside an arbitral award. Article 9 of the Arbitration
originating notice of motion and a grounding affi- Act sets out that the High Court is the relevant
davit on notice to the other party. The respond- court to consider such matters. The functions of
ent to the motion can file a replying affidavit and the High Court are performed by the president
the applicant can deliver a further response. A or by such other judge of the High Court as may
copy of the arbitral award must be presented to be nominated by the president.
the court when making the application.
The Preamble to the Arbitration Act gives the
Under the Arbitration Act, an award made by an New York Convention, the Geneva Convention
arbitral tribunal under an arbitration agreement and the Geneva Protocol, and the Washington
will be enforceable in Ireland in the same man- Convention on the Settlement of Investment Dis-
ner as a judgment or order of that court with putes Between States and Nationals of Other
the same effect and where leave is given by the States force of law in Ireland.
High Court.
Articles 35 and 36 of the Model Law provide for
The term “award” is defined under the Arbitra- recognition and enforcement of foreign arbitral
tion Act to include a partial award. This allows awards. Article 35 states that an arbitral award,
parties to enforce only part of an award. irrespective of the country in which it was made
(provided that country is a signatory of the New
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