Enforcing foreign judgments in Scotland
Three petitioners successfully appealed against the Outer House’s decision to recall their warrant for registration of a money judgment which had been…
(1) Drika BVBA, (2) Roger Van Craen & (3) NV Malu v Clare Ramsay Giles  CSIH 42
Three petitioners successfully appealed against the Outer House’s decision to recall their warrant for registration of a money judgment which had been handed down in Belgium. While an amendment to the procedural rules of the Scottish courts had left a lacuna in the law, this could be remedied by the use of the general procedure for applications to the Court of Session by petition.
The petitioners attempted to register a money judgment from the 9B Division of the Court of First Instance of Antwerp dated 24 December 2013 (“the Judgment”). The Judgment was made before 10 January 2015 and so fell under the regime of Brussels I, a European Union regulation which oversees the enforcement of judgments from different Member States. The petitioners were granted a warrant to register the Judgment but the respondent appealed on a procedural point.
The petition for registration was presented as an application under Chapter 62 of the Rules of the Court of Session 1994 (“the Rules”) which sets out the procedure for the recognition, registration and enforcement of foreign judgments. However, the Rules had been amended by an Act of Sederunt which came into force on 7 February 2015 and which meant that Rule 62.28 no longer applied to cases brought under Brussels I. As a result, the Judgment was a transitional case which fell under the Brussels I regime but for which there was no specific mechanism for registration under the Rules. Both parties agreed that this appeared to be a drafting error which presented a “lacuna in the law” which left the petitioners without a means of applying to the courts to register the Judgment. There was no dispute as to whether a Belgian judgment could be enforced in Scotland.
The Lord Ordinary granted the respondent’s appeal and recalled the warrant for registration of the Judgment. While acknowledging that the case was “highly unusual” and that the position following the amendments to the Rules was “unsatisfactory”, he held that the matter could not be resolved by using the court’s inherent power or by the doctrine of direct effect. He suggested that the petitioners might have no other option but to seek decree conform from the courts as the common law procedure used to enforce foreign judgments before statutory procedures such as Brussels I were introduced.
The petitioners reclaimed against the recall of the warrant for registration.
Appeal to the Inner House
The petitioners submitted that the Lord Ordinary had erred in holding that Brussels I did not have direct effect and that the court should have used its inherent power to entertain an application where there was a lacuna in the rules caused by an apparent drafting error. The respondent contended that, while she did not object to the registration of the Judgment on substantive grounds, the Judgment could not be registered as the petitioners had purported to proceed under Rule 62.28 which no longer applied to Brussels I judgments.
The Inner House of the Court of Session advised that the solution to the drafting error lay with the Rules and that “if an exception no longer applies then one reverts to the generality”. While the specific rule in Chapter 62 no longer applied, Chapter 14 of the Rules outlined the general procedure for petitions to the court. The aim of Chapter 14 was to make the petition procedure informal and flexible so that applications may be dealt with swiftly. In the absence of any exceptional procedure, the petitioners could revert to the general rule found in Chapter 14 as a means of registering the Judgment. While the petition had not been submitted under Chapter 14 and its terms were not explicit, its purpose was plain and clear and was sufficient for the court to register the Judgment.
The Lord Ordinary had also erred in suggesting that the petitioners could have resorted to seeking decree conform. The remedy of decree conform had been superseded since 1936 with the introduction of statute and was no longer an available option for the enforcement of foreign judgments. The court allowed the petitioners’ reclaiming motion and refused the respondent’s appeal against registration of the Judgment.
The EU Withdrawal Bill has now received Royal Assent and Section 3 of the Act provides that direct EU legislation, so far as operative immediately before the exit day of 29 March 2019, will form part of domestic law on and after the exit day. Direct legislation is defined as, amongst other things, “any EU regulation”.
Accordingly, the Court’s finding would not have been affected if the case was to have been heard after the exit day, as Brussels I will be transposed into UK domestic law and will continue to apply until it is amended or repealed.