Clients often assume that, in the modern world, the recognition and enforcement of judgements from other countries with well-developed legal systems is easy and can be taken for granted. Unfortunately that is not always true. There are various layers to recognition and enforcement.
Within the UK, the Civil Jurisdiction and Judgements Act 1982 provides the framework for judgements from one part of the UK being enforced in another. Sitting above that lies the Brussels Convention regime applicable to Europe and the accompanying EU regulations. Outwith Europe the Administration of Justice (Scotland) Act 1920 and the Foreign Judgements (Reciprocal Enforcement) Act 1933 provide a further layer of legislation applicable primarily to commonwealth countries.
Outwith these regimes, however, there are many modern jurisdictions which have no formal conventions or treaties with the UK which provide for reciprocity in this area. Some of the world's largest economies such as Russia, China and, perhaps surprisingly, the USA are among these countries. In order to enforce a judgement from a court in the USA in Scotland we still have to raise an action of decree conform using the original judgement as evidence of the obligation in question. This is a more complicated process than it ought to be, and is one which allows more of a defence to be advanced to recognition and enforcement than where the recognition follows from regulation or convention rights.
However, even where there are existing conventions or regulations governing the process, it is not always without difficulty as was demonstrated recently in the case of Dirka Bvba, Roger Van Craen and NV Malu v Clare Giles [2018] CSIH 42. In this case, in an opinion given in October last year, Lord Brailsford held that a decision of a Belgian court could not be registered in Scotland for enforcement due to a loophole in the Rules of Court. This meant essentially that no such EU judgements could be registered and that actions of decree conform would be necessary in all cases.
This week, the Inner House reversed Lord Brailsford's decision and allowed registration to proceed. The decision of the Belgian court was undoubtedly one that was enforceable in Scotland, and that the EU regulations were directly effective imposing an obligation on the national court to comply with them and give them the necessary effet utile. While the court agreed that the drafter of the most recent version of the Rules of Court had made an error which should perhaps be corrected in due course, it did not see that it led to the insurmountable problem identified by Lord Brailsford. The general petition procedure set out in Chapter 14 of the rules was sufficient to enable the petitioners to proceed with registration and the application was, therefore, competently made.
So everyone involved in the registration of EU judgements in Scotland can breathe a sigh of relief and can continue to avail themselves of the straightforward petition procedure that has been used for years. As this decision illustrates, however, the recognition and enforcement of foreign judgements in Scotland is not something that can be taken for granted. Where advice or guidance is required, either on registering a judgement or opposing registration, our litigation team will be glad to help.
