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This Article is of particular interest to US lawyers and to parties to litigation in the US who might wish to enforce judgments of US courts in England and Wales.
It will be familiar to many English and US lawyers that there is no reciprocal arrangement in place between the US and the UK for the mutual recognition and enforcement of judgments. That means that to enforce a US judgment in the English courts, new court proceedings are required to obtain an English judgment for payment of the US ‘debt’ in England.
It is generally recognised that for the English courts to consider enforcing the debt, among other things, the US judgment to be enforced must be final and conclusive in the court that issued it. If the US judgment is being appealed, the English courts may ‘stay’ the English enforcement proceedings pending the determination of any US appeal.
A recent case in the High Court of England and Wales (Commercial Court) serves as a reminder of the test the English courts will apply when considering an application to the English courts to stay enforcement of a US judgment that is the subject of an undetermined appeal.
Summary
Moss & ors v Martin & ors [2022] EWHC 3258 (Comm)
In Moss v Martin, the English court held that the relevant test to be applied where a defendant seeks to ‘stay’ enforcement in England and Wales of a US judgment that is the subject of an undetermined appeal is that found in CPR 83.7. The test is whether there are “special circumstances which render it inexpedient to enforce” the US judgment. In considering that test, the court confirmed that it should apply by analogy the principles governing the grant of a stay under CPR 52.16 as though the applicable appeal had been filed in England and Wales. In other words, the court must consider the balance of injustice that may arise if the application for a stay is granted or refused.
In the circumstances, the court refused the application on the basis that the defendants had not demonstrated that there were “special circumstances”.
The court found that whilst the appeal in the US court could amount to a “special circumstance”[1], it did not do so in this case.
Background
Following proceedings in the District Court for the Northern District of Texas and the District Court of the 68th Judicial District of Dallas County, Texas, the claimants obtained judgments against the defendants (respectively, the 2016 US Judgment and the 2022 US Judgment, together the US Judgments). The US Judgments ordered the defendants to pay to the claimants sums in compensatory and exemplary damages.
The defendants’ appeal against the 2016 US Judgment to the United States Court of Appeals for the 5th Circuit on jurisdictional grounds was dismissed in 2019. The defendants also appealed the 2022 US Judgment, to the Dallas County Court (the 2022 US Appeal), but that appeal had not been determined by the date of the English Judgment in the English proceedings.
Having issued proceedings in the English courts on 14 April 2022 seeking the enforcement of the US Judgments (the English Proceedings), the claimants subsequently obtained a freezing injunction in the English proceedings over the defendants’ assets. The claimants then issued an application for summary judgment in the English Proceedings, notwithstanding the undetermined 2022 US Appeal. In his judgment dated 4 November 2022 (the English Judgment) Mr Philip Marshall KC, sitting as a Deputy High Court Judge, concluded that the defendants had no defence carrying a real prospect of success to the enforcement of the US Judgments and although the 2022 US Judgment was under appeal, it did not follow that it was not “final and conclusive” for the purpose of enforcement in England and Wales. The English court ordered the defendants to pay to the claimants certain sums due pursuant to the US Judgments (the November Order).
At a hearing on 12 December 2022 the defendants subsequently sought a stay of execution and enforcement of the November Order, so far as it related to the 2022 US Judgment, on the ground that it was the subject of the 2022 US Appeal (the Stay Application).
The stay application
The Stay Application relied upon CPR 3.1(2)(f) and/or CPR 40.8A as the basis for the application.
Rule 3.1(2)(f) provides that: “Except where these Rules provide otherwise, the court may… stay the whole or part of any proceedings or judgment either generally or until a specified date or event”.
Rule 40.8A provides that: “without prejudice to rule 83.7(1), a party against whom a judgment has been given or an order made may apply to the court for (a) a stay of execution of the judgment or order; or (b) other relief, on the ground of matters which have occurred since the date of the judgment or order, and the court may by order grant such relief, and on such terms, as it thinks just”.
The court referred to the 2022 White Book Guidance at paragraph 3.1.8 which clarifies that Rule 3.1(2)(f) does not apply to applications to stay a money judgment “since they are governed by Rule 83.7”. Under Rule 83.7 at the time that a judgment or order for payment of money is made or granted, or at any time thereafter, a debtor may apply to the court for a stay of execution. The court can order a stay where it is satisfied that “there are special circumstances which render it inexpedient to enforce the judgment or order…”.
Counsel for the claimants urged the court to approach the Stay Application by applying, by analogy, the provisions of CPR 52.16 which provides that “unless the appeal court or the lower court orders otherwise… an appeal shall not operate as a stay of any order or decision of the lower court” and considering the District Court in Dallas County as the “lower court”. Counsel for the defendants agreed that the court should have regard to the principles applicable under Rule 52.16 and the court ought to apply those principles as if the appeal were proceeding in England and Wales.
The decision
The court held that:
- the applicable test is found in CPR 83.7, and is whether or not there are “special circumstances which render it inexpedient to enforce” the November Order;
- in considering whether the enforcement of the November Order would be inexpedient in light of the appeal against the 2022 US Judgment filed in the Dallas County Court, the court should apply by analogy the principles which govern the grant of a stay under CPR 52.16. The case law indicates that this involves a consideration of all the circumstances of the case with a view to identifying and balancing the risks of injustice which could arise if a stay is granted or refused.
- In the circumstances, the court confirmed that the appeal in the Dallas County Court is capable of amounting to a “special circumstance” on the basis that the appeal has the potential to undermine the November Order.
The Court did not set out more generally an analysis of what might constitute “special circumstances”. The case law provides that it is common for a cross-claim to be used as the basis for a stay. In those circumstances, the following matters will be taken into account[2]:
- the nature of the claim and the inter-relationship between the claims and the parties
- the merits and value of the cross-claim
- the extent of any prejudice to the judgment creditor and the judgment debtor – the extent of any likely delay
Having undertaken an analysis to consider whether there are any “special circumstances” which render it inexpedient to enforce the November Order, the court dismissed the Stay Application and cleared the path for the claimants to pursue enforcement.
The case serves as a useful authority for the approach the Court will take to the enforcement of US judgments where those judgments are the subject of an undetermined appeal.
[1] See paragraph 51 ii)
[2] Burnet -v- Francis Industries Plc [1987] 1 W.L.R. 802, [1987] 1 WLUK 1039 as affirmed in Dar Al Arkan Real Estate -v- Al Refai [2015] EWHC 1793 (Comm)
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