It is often necessary to enforce judgments obtained in one jurisdiction against a party who is, or whose assets are, in another. The Scottish courts will not enforce foreign judgments automatically. Parties who wish to enforce a judgment against a person or their assets in Scotland must therefore follow Scottish procedure.
At common law, it is possible to raise an action for decree conform, by which the Scottish courts will recognise the existence of a foreign obligation as binding on a party in Scotland. This procedure, however, is somewhat cumbersome and relatively complicated. It is still required for enforcing US judgements though separate rules apply to arbitration. For judgments given by courts in other UK jurisdictions, the EU or certain other European countries, however, a simpler route is available: registration. This involves the registration of the judgment in the Books of Council and Session (the official register of the Court of Session) after which the judgment may be enforced in Scotland. Compared to raising a fresh action against the debtor in Scotland, registration has the advantages for clients of speed, simplicity and relatively low cost.
Registration of UK judgments
The procedure for registration of judgments from other UK jurisdictions is laid out in the Civil Jurisdiction and Judgments Act 1982. Largely, it mirrors the process of the registration of Scottish or Northern Irish judgments in England or Wales.
The 1982 Act makes a distinction between judgments that enforce a money provision (i.e. those relating to payment of a sum of money) and a non-money provision (e.g. relating to the enforcement of a contractual obligation to do something (other than pay a sum of money)). In both cases, the judgment must be registered in a prescribed form, after which it may be enforced directly in Scotland.
The procedure for money provision judgments involves obtaining a certificate from an officer of the original court stating the sum due, together with any interest. The certificate is then registered in the Books of Council and Session. Following registration, the judgment has effect as if it were a judgment of the Court of Session.
Non-money provision judgements do not use the certificate procedure. Instead, registration requires a petition to be presented to the Court of Session, supported by a certified copy of the judgement and a certificate from the original court stating that no appeal is being taken against the judgment and that it may be enforced. The petition can be granted without appearance in court. After the petition is granted, the judgment may then be registered in the Books of Council and Session, after which, as with money judgments, it is enforceable.
Certain types of judgment cannot be enforced in this manner, including the judgments of magistrates' courts, judgments in relation to insolvency law, and judgments concerning title to administer the estate of a deceased person.
Registration of EU/other European judgments
As is the case in the English and Welsh courts, the Scottish courts will also enforce judgments given in the courts of EU member states and certain other European countries. The procedure differs according to whether or not the debtor who is the subject of the judgment contests the claim.
Contested claims are enforceable following registration by virtue of the Brussels I Regulation (EC Council Regulation 44/2001) (in the case of EU member states except Denmark) or the Lugano Convention (in the case of Denmark, Switzerland, Norway and Iceland). In Scotland, the relevant procedure is similar to that used for non-money provision judgments from the rest of the UK, as described above.
To register a judgment under the Brussels I Regulation or the Lugano Convention, a petition needs to be made to the Court of Session. This must be accompanied by an authentic copy of the judgment, a certificate stating that the judgment is enforceable in the country from which it originates, documents relating to service on absent parties and provision of legal aid (where applicable), and an affidavit stating the sums due under the judgment (if applicable) and addresses for service in Scotland. The Petition is not served on the debtor and will normally be determined in chambers.
After the court has been satisfied that the above requirements have been met, warrant for registration will be granted. The court order containing the warrant is then served on the debtor who then has a period (one or two months depending on where the debtor is domiciled) to appeal the warrant before the judgment is registered. If there is no appeal, at the end of the period the judgment may then be registered in the Books of Council and Session and may thereafter be enforced directly in Scotland.
Those wishing to register judgments under the Brussels I Regulation or the Lugano Convention in Scotland may also protect their interests further by seeking interim protective measures such as arrestment (which can, for example, be used to "freeze" funds in the debtor's bank account) or inhibition (which would effectively prevent the debtor selling land) before the judgment is registered. Brodies LLP has considerable experience in dealing with such matters and will be able to advise what is appropriate in specific cases.
Judgments relating to uncontested claims in the EU (excluding Denmark) may be enforced by means of a European Enforcement Order (an "EEO"). In order to obtain an EEO, the originating court must issue a copy of the judgment, together with a certificate stating that the claim is uncontested and a separate certificate stating the sums due. These documents may then be registered directly in the Books of Council and Session the judgment enforced accordingly.
