Clients often presume (quite understandably) that foreign judgements (i.e. non-Scottish) are automatically recognised in Scotland and thus can be immediately enforced against a person or their assets in Scotland. They are therefore quite surprised to find out that foreign judgements cannot, in fact, be so enforced and that a ‘registration’ process must first be completed before the foreign judgement is recognised as enforceable in Scotland. The ‘registration’ process differs depending on where the foreign judgement originated. This article will deal with the registration of money judgements only.
Registration of UK Judgements
The registration process for a judgement from other UK jurisdictions is regulated by way of the Civil Jurisdiction and Judgements Act 1982 (‘the 1982 Act’). Prior to embarking upon the registration process in Scotland, a certificate of money provisions under the 1982 Act must first be obtained from the original court stating the sum due, together with any interest. That certificate, along with the foreign judgement, is then presented to a public register in Edinburgh, known as the Books of Council and Session, for registration. Following registration, which is an administrative exercise, the judgement can then be enforced as if it were a judgement of the Court of Session.
Registration of EU judgements
The process of registering an unconsented EU claim in Scotland largely mirrors the administrative process used for the registration of UK judgements in Scotland. This expedited process is facilitated by means of a European Enforcement Order. Matters do, however, differ, when it comes to the registration of contested EU judgements. When dealing with a contested EU judgement, the registration process requires a petition to be lodged at the Court of Session. The Petition must be supported by certain prescribed documents including: an authentic copy of the original judgment; a translation of the judgement, if applicable; a document which establishes that, according to the law of the country in which the judgement has been given, the judgement is enforceable and has been served; a document relative to the issue of legal aid; and, a supporting affidavit.
The Petition is not served on the debtor and will normally be determined in chambers. On being satisfied that the Petition is compliant with the applicable rules of court, the court will grant a warrant for the registration of the judgement. The Petitioner will then serve a copy of the order granting a warrant for registration on the person liable under the judgement. The debtor then has a period (one or two months depending on where the debtor is domiciled) to appeal the warrant before the judgement is registered. Provided the debtor does not seek to appeal the warrant, the judgement may then be registered in the Books of Council of Session and can thereafter be enforced in Scotland.
While the above represents the position at the time of writing, as the United Kingdom’s departure from the European Union progresses, the registration process is subject to possible change. Notwithstanding that, one would hope that, as part of any ‘deal’ reached with the European Union, provision will be made for reciprocity in the area of recognition and enforcement of foreign judgements.
Registration of other foreign judgements
While registration of UK judgements and EU judgements are catered for by way of the 1982 Act and the Brussels Convention applicable to Europe (and accompanying EU regulations) respectively, they are not the only foreign judgements that can be registered in Scotland. Out with Europe, the Administration of Justice (Scotland) Act 1920 (‘the 1920 Act) and the Foreign Judgements (Reciprocal Enforcement) Act 1933 (‘the 1933 Act’) make provision for the registration of judgements of the courts of countries which are primarily member states of the Commonwealth of Nations.
As with the registration of an EU judgement, an application under either the 1920 Act or the 1933 Act is made by way of petition to the Court of Session with the procedure being not too dissimilar to that involving a contested EU judgement. Again, once a warrant for registration has been granted and the period for appeal has expired, the judgement may then be registered in the Books of Council and Session for enforcement in Scotland.
Should the foreign judgement be a judgement to which neither the 1982 Act, the Brussels Convention, the 1920 Act or the 1933 Act apply, that does not, necessarily, mean that the judgement cannot be registered in Scotland for enforcement. Rather than simply registering the judgement in the Books of Council and Session (as is the case with judgements to which the 1982 Act applies) or lodging a petition at the Court of Session seeking a warrant for registration of a foreign judgment (as is the case with judgements to which either the Brussels Convention, the 1920 Act or the 1933 Act apply), an application at common law can be made by the creditor to the Court of Session seeking a decree conform.
The process of seeking a decree conform is usually more difficult than an application under the Brussels Convention, the 1920 Act of the 1933 Act as this process provides a forum in which the action can, in certain instances, be resisted on its merits by the debtor (notwithstanding this possibly already having been done in the foreign court). Rather than the foreign judgement simply being registered for enforcement in Scotland, in an action for decree conform, the foreign judgement is used as evidence of the obligation in question, which is an important distinction.
Countries such as Russia, China and, perhaps surprisingly, the United States of America, have no formal arrangement in place in relation to the enforcement of foreign judgements in Scotland and as such, before being enforced in Scotland, any judgement of the courts of these countries must first follow the more complex (and perhaps uncertain) process of obtaining a decree conform.
For help and advice on any matters raised in this article please speak to a member of the Blackadders Dispute Resolution Team.