Act of Sederunt (Rules of the Court of Session 1994) 1994

PART V RECOGNITION AND ENFORCEMENT OF JUDGMENTS UNDER THE CIVIL JURISDICTION AND JUDGMENTS ACT 1982

Application and interpretation of this Part

62.26.—(1) This Part applies to the recognition and enforcement of a judgment under the Civil Jurisdiction and Judgments Act 1982(1).

(2) Unless the context otherwise requires, in this Part–

“the Act of 1982” means the Civil Jurisdiction and Judgments Act 1982;

“Contracting State” has the meaning assigned in section 1(3) of the Act of 1982(2);

“judgment” includes an authentic instrument or court settlement.

Disapplication of certain rules to this Part

62.27.  The following provisions shall not apply to an application under this Part in addition to those rules mentioned in rule 62.1:–

• rule 4.1(1) (printed form for petition),

• rule 14.4 (form of petitions).

Enforcement of judgements, authentic instruments or court settlements from another Contracting State

62.28.—(1) An application under section 4 of, and Article 31 (enforcement of judgment from another Contracting State) or Article 50 (enforcement of authentic instrument or court settlement from another Contracting State) of the Convention in Schedule 1 or 3C to, the Act of 1982(3) shall be made by petition in Form 62.28.

(2) There shall be produced with the petition–

(a) an authentic copy of the judgment to be registered;

(b) a document which establishes that, according to the law of the country in which the judgment has been given, the judgment is enforceable and has been served;

(c) where judgment has been given in absence (that is to say, in default of appearance), the original or a certified copy of the document which establishes that the party against whom judgment was given in absence was served with the document initiating the proceedings or with an equivalent document;

(d) where applicable, a document showing that the applicant is in receipt of legal aid in the country in which the judgment was given;

(e) an affidavit stating–

(i) whether the judgment provides for the payment of a sum of money;

(ii) whether interest is recoverable on the judgment under the law of the country in which judgment was given, and if so, the rate of interest, the date from which interest is due and the date on which interest ceases to accrue;

(iii) an address within the jurisdiction of the court for service on or intimation to the petitioner;

(iv) the usual or last known place of residence or business of the person against whom the judgment was given;

(v) the grounds on which the petitioner is entitled to enforce the judgment; and

(vi) the part of the judgment which is unsatisfied.

(3) Where the petitioner does not produce a document required under paragraph (2)(a) to (d), the court may–

(a) fix a period within which that document is to be lodged;

(b) accept an equivalent document; or

(c) dispense with the requirement to produce the document.

Protective measures and interim interdict

62.29.—(1) On lodging a petition referred to in rule 62.28, the petitioner may, at any time until the expiry of the period for lodging an appeal referred to in rule 62.34 or its disposal, apply by motion for a warrant for the execution of protective measures.

(2) On lodging such a petition, the petitioner may, at any time until the expiry of the period for lodging an appeal mentioned in rule 62.34 or its disposal, apply by motion for an interim interdict.

Warrant for registration under the Act of 1982

62.30.—(1) The court shall, on being satisfied that the petition complies with the requirements of the Act of 1982, pronounce an interlocutor–

(a) granting warrant for the registration of the judgment;

(b) granting warrant for the execution of protective measures; and

(c) where necessary, granting decree in accordance with Scots law.

(2) The interlocutor pronounced under paragraph (1) shall specify–

(a) the period within which an appeal mentioned in rule 62.34 against the interlocutor may be made; and

(b) that the petitioner–

(i) may register the judgment under rule 62.32; and

(ii) may not proceed to execution until the expiry of the period for lodging such an appeal or its disposal.

Intimation to petitioner

62.31.  Where the court pronounces an interlocutor under rule 62.30(1) granting warrant for registration, the Deputy Principal Clerk shall intimate such interlocutor to the petitioner by sending to his address for service in Scotland a certified copy of the interlocutor by registered post or the first class recorded delivery service.

Registration under the Act of 1982

62.32.—(1) Where the court pronounces an interlocutor under rule 62.30(1) granting warrant for registration, the Deputy Principal Clerk shall enter the judgment in a register of judgments, authentic instruments and court settlements under the Act of 1982 kept in the Petition Department.

(2) On presentation by the petitioner to the Keeper of the Registers of–

(a) a certified copy of the interlocutor under rule 62.30(1) granting warrant for registration,

(b) an authentic copy of the judgment and any translation of it, and

(c) any certificate of currency conversion under rule 62.2(2),

they shall be registered in the register of judgments of the Books of Council and Session.

(3) On registration under paragraph (2), the Keeper of the Registers shall issue an extract of the registered judgment with a warrant for execution.

Service of warrant for registration under the Act of 1982

62.33.  The petitioner shall serve a copy of the interlocutor granting warrant for registration of a judgment and a notice in Form 62.33 on the person liable under the judgment.

Appeals under the Act of 1982

62.34.—(1) An appeal under Article 37 of the convention in Schedule 1 or 3C to the Act of 1982 (appeal against granting of warrant for registration) shall be made by motion–

(a) to the Lord Ordinary; and

(b) within one month of service under rule 62.33 (service of warrant for registration under the Act of 1982) or within two months of such service where service was executed on a person domiciled in another Contracting State.

(2) An appeal under Article 40 of the convention in Schedule 1 or 3C to the Act of 1982 (appeal against refusal to grant warrant for registration) shall be made by motion–

(a) to the Lord Ordinary; and

(b) within one month of the interlocutor pronounced under rule 62.30(1) (warrant for registration under the Act of 1982).

(3) Where the respondent in any such appeal is domiciled furth of the United Kingdom–

(a) in relation to an appeal under paragraph (1), intimation of the motion shall be made to the address for service of the respondent in Scotland;

(b) in relation to an appeal under paragraph (2), intimation of the motion shall be made in accordance with rule 16.2 (service furth of United Kingdom) or rule 16.5 (service where address of person is not known), as the case may be.

(4) Where an appeal under paragraph (1) is successful, the court shall, on the motion of the appellant, pronounce an interlocutor recalling any protective measure or interim interdict.

Reclaiming under the Act of 1982

62.35.—(1) Any party dissatisfied with the interlocutor of the Lord Ordinary in any appeal mentioned in rule 62.34 (appeals under the Act of 1982) may reclaim on a point of law against that interlocutor.

(2) Where a reclaiming motion under paragraph (1) against the registration of a judgment is successful, the court shall, on the motion of the appellant, pronounce an interlocutor recalling any protective measure or interim interdict.

Recognition of judgments from another Contracting State

62.36.—(1) For the purposes of Article 26 of the convention in Schedule 1 or 3C to the Act of 1982, an interlocutor pronounced under rule 62.30(1) (warrant for registration under the Act of 1982) shall imply recognition of the judgment so dealt with.

(2) In an application under Article 26(2) of the convention in Schedule 1 or 3C to the Act of 1982 (application for recognition of a judgment), rules 62.26 to 62.35 shall apply to such an application as they apply to an application under Article 31 of that convention, subject to the following provisions:–

(a) it shall not be necessary to produce any documents required by rule 62.28(2)(b) and (d); and

(b) rule 62.32 shall not apply.

Enforcement of judgments from another part of the United Kingdom in Scotland (money provisions)

62.37.—(1) An application under paragraph 5 of Schedule 6 to the Act of 1982 (application for registration in the Court of Session of a certificate in relation to a money provision in a judgment from another part of the United Kingdom) shall be made by presenting to the Keeper of the Registers–

(a) a certificate under paragraph 4(1) of Schedule 6 to the Act of 1982; and

(b) any certificate of currency conversion under rule 62.2(2).

(2) On presentation of the certificate mentioned in paragraph (1)(a), the Keeper of the Registers shall–

(a) register the certificate in the register of judgments of the Books of Council and Session; and

(b) issue an extract of the certificate with a warrant for execution.

(3) An application under–

(a) paragraph 9 of Schedule 6 to the Act of 1982 (application to sist proceedings for enforcement of a certificate registered under paragraph (2) of this rule), or

(b) paragraph 10 of Schedule 6 to the Act of 1982 (application to reduce the registration under paragraph (2) of this rule),

shall be made by petition.

Enforcement of judgments from another part of the United Kingdom in Scotland (non-money provisions)

62.38.—(1) An application under paragraph 5 of Schedule 7 to the Act of 1982 (application for registration in the Court of Session of a non-money provision in a judgment from another part of the United Kingdom) shall be made by petition in Form 62.38.

(2) There shall be produced with the petition under paragraph (1)–

(a) a certified copy of the judgment of the original court; and

(b) a certificate under paragraph 4(1)(b) of Schedule 7 to the Act of 1982.

(3) The petition under paragraph (1) shall be heard by the Lord Ordinary in chambers and shall not require any appearance for the applicant unless the court so requires.

(4) The court shall, on being satisfied that the petition complies with the requirements of section 18 of, and Schedule 7 to, the Act of 1982, pronounce an interlocutor–

(a) granting warrant for the registration of the judgment; and

(b) where necessary, granting decree in accordance with Scots law.

(5) Where the court pronounces an interlocutor under paragraph (4), rule 62.32 shall apply to the registration of a judgment under this rule as it applies to the registration of a judgment under that rule.

(6) An application under–

(a) paragraph 8 of Schedule 7 to the Act of 1982 (application to sist proceedings for enforcement of a judgment registered under paragraph (5) of this rule), or

(b) paragraph 9 of Schedule 7 to the Act of 1982 (application to reduce the registration under paragraph (5) of this rule),

shall be made by petition.

Cancellation of registration under the Act of 1982

62.39.  Where–

(a) an interlocutor under rule 62.30(1) (warrant for registration under the Act of 1982) is recalled and registration under rule 62.32 (registration under the Act of 1982) is ordered to be cancelled after an appeal under Article 37 of the convention in Schedule 1 or 3C to the Act of 1982, or

(b) registration under rule 62.37(2) (registration of judgments from another part of the United Kingdom in Scotland (money provisions)) or rule 62.38(5) (registration of judgments from another part of the United Kingdom in Scotland (non-money provisions)) is reduced, a certificate to that effect by the Deputy Principal Clerk shall be sufficient warrant to the Keeper of the Registers to cancel the registration and return the judgment, certificate or other documents to the person who applied for registration.

Enforcement in another Contracting State of Court of Session judgments etc.

62.40.—(1) Where a person seeks to apply under section 12 of the Act of 1982(4) for recognition or enforcement in another Contracting State of a judgment given by the court or a c ourt settlement in the court, he shall apply by letter to the Deputy Principal Clerk for–

(a) a certificate in Form 62.40–A;

(b) a certified copy of the judgment; and

(c) if required, a certified copy of the opinion of the court.

(2) The Deputy Principal Clerk shall not issue a certificate under paragraph (1)(a) unless there is produced to him an execution of service of the judgment on the person on whom it is sought to be enforced.

(3) Where a person seeks to apply under Article 50 of the convention in Schedule 1 or 3C of the Act of 1982 for enforcement of an authentic instrument or court settlement registered for execution in the Books of Council and Session, he shall apply by letter to the Keeper of the Registers for–

(a) a certificate in Form 62.40–B; and

(b) an extract of the authentic instrument or court settlement.

Enforcement in another part of the United Kingdom of Court of Session judgments or documents registered for execution (money provisions)

62.41.—(1) Where a person seeks to apply under Schedule 6 to the Act of 1982 for enforcement in another part of the United Kingdom of a money provision in a judgment given by the court, he shall apply by letter to the Deputy Principal Clerk for a certificate in Form 62.41–A.

(2) The Deputy Principal Clerk shall not issue a certificate under paragraph (1) unless there is produced to him an affidavit stating–

(a) the sum or aggregate of sums including interest and expenses payable and unsatisfied;

(b) that the time for making an appeal against such judgment has expired or such appeal has been finally determined;

(c) that enforcement of the judgment has not been suspended and the time available for its enforcement has not expired; and

(d) the address of the party entitled to enforce, and the usual or last known address of the party liable to execution on, the judgment.

(3) Where a person seeks to apply under Schedule 6 to the Act of 1982 for enforcement in another part of the United Kingdom of a document registered for execution in the Books of Council and Session, he shall apply by letter to the Keeper of the Registers for–

(a) a certificate in Form 61.41–B; and

(b) an extract of the document.

(4) The Keeper of the Registers shall not issue a certificate under paragraph (3) unless there is produced to him an affidavit which includes the statements required under paragraph (2)(a), (c) and (d).

Enforcement in another part of the United Kingdom of Court of Session judgments or documents registered for execution (non-money provisions)

62.42.—(1) Where a person seeks to apply under Schedule 7 to the Act of 1982 for enforcement in another part of the United Kingdom of a non-money provision in a judgment of the court, he shall apply by letter to the Deputy Principal Clerk for–

(a) a certificate in Form 62.42–A; and

(b) a certified copy of such judgment.

(2) The Deputy Principal Clerk shall not issue a certificate under paragraph (1) unless there is produced to him an affidavit stating–

(a) that the time for making an appeal against such judgment has expired or such appeal has been finally determined; and

(b) the address of the party entitled to enforce, and the usual or last known address of the party liable to execution on, the judgment or registered document.

(3) Where the Deputy Principal Clerk issues a certificate in Form 62.42–A, he shall attach it to the certified copy judgment.

(4) Where a person seeks to apply under Schedule 7 to the Act of 1982 for enforcement in another part of the United Kingdom of a non-money provision in a document registered for execution in the Books of Council and Session, he shall apply by letter to the Keeper of the Registers for–

(a) a certificate in Form 62.42–B; and

(b) an extract of the document.

(5) The Keeper of the Registers shall not issue a certificate under paragraph (4) unless there is produced to him an affidavit referred to in paragraph (2).

(6) Where the Keeper of the Registers issues a certificate in Form 62.42–B, he shall attach it to the extract of the document.

(1)

1982 c. 27.

(2)

Section 1(3) of the Act of 1982 was amended by the Civil Jurisdiction and Judgments Act 1991 (c. 12), section 2(5).

(3)

Section 4 was amended by the Civil Jurisdiction and Judgments Act 1991 (c. 12), Schedule 2, paragraph 2 and was extended to authentic instruments and court settlements by S.I. 1993/604. Schedule 1 was substituted by S.I. 1990/2591. Schedule 3C was inserted by the Civil Jurisdiction and Judgments Act 1991, section 1(3) and Schedule 1.

(4)

Section 12 was extended to court settlements by S.I. 1993/604.