Enforcement of Non-Scottish Court Decrees in Scotland

Background

One of the most frequent questions asked by non-Scottish Lawyers, is how a court decree from another jurisdiction can be enforced in Scotland? The answer is usually more straight forward than expected.

The United Kingdom Position

If a UK Court outside Scotland has given a judgement then the procedure for enforcing an order relating to money is straight forward. The position is regulated by s18 of the Civil Jurisdiction and Judgements Act 1982. By virtue of this section and Sch. 6 of the 1982 Act, a party is entitled to apply to the Court that originally granted the order, for a “Certificate of Money Provisions” (i.e. certifying the court has ordered a party to make payment of money). Assuming the time for appeals is over or they are disposed with, and execution of the judgement has not been suspended in any way, the Court will grant the required certificate. The Certificate then has to be registered in the Books of Council and Session in Edinburgh within 6 months of it being granted. Once registered, the certificate becomes equivalent to a Scottish Decree for Enforcement Purposes.

Non-United Kingdom Judgements

Matters can sometimes become more involved when non-UK judgements are considered. However, in broad terms, where the judgement is of a court of another EU Member State (in terms of the Brussels Convention I), or of a country with whom the UK has a reciprocal agreement (for example, in terms of the Foreign Judgements (Reciprocal Enforcements) Act 1933), a Petition has to be presented to the Court of Session seeking recognition of the Judgement. Service of the Petition is ordered on the judgement debtor in order that they may apply for the judgement to be set aside; although particularly in EU cases the grounds for non- recognition are very limited, often being confined to any public policy issues that arise.

If the judgement is from a Court in a non-EU state, and the state has no reciprocal arrangement with the UK, then the position is different again. In that case, a Court Action has to be raised in the Court of Session for “Decree Conform.” This is essentially a payment action based on the foreign decree, although the Common Law has evolved so that only a limited number of defences to the action are competent (e.g. the foreign judgement was wrongly decided due to fraud).

Advice

We are happy to discuss, and give more detailed guidance, on particular cases on a no- obligation basis. Basic details of enforcement possibilities in Scotland, once a recognised decree is obtained, can be found in our briefing entitled “Debt Recovery in Scotland: A Brief Guide for Non-Scottish Lawyers.”

This guide is current 25 September 2012 and is our understanding of the position described at that date. It does not constitute legal advice. Legal advice ought to be taken before relying on its terms (particularly to ensure the law has not changed).