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Posted on Sep 05, 2014 by  | Tags: registration of EU judgement, enforcement of EU judgement, Scotland, Books of Council and Session, Court of Session, EU regulation 44/2001,  | 0 Comments

By Neil Morrison, Associate, Dispute Resolution

INTRODUCTION

So you’ve got your judgement from an EU country against a Scottish individual or company but realised that their assets are all located in Scotland, how do you turn your EU judgement into a Scottish judgement so you can take steps to enforce your judgement in Scotland against the assets?

European law (Regulation 44/2001) has made registering a judgement from an EU country (except Denmark) in Scotland relatively easy, quick, cheap and straightforward. The process has been divided below into contested and non-contested judgements (i.e. defended and undefended).

THE CONTESTED JUDGEMENT REGISTRATION PROCESS

1. An application (by Petition) is made for the recognition of the foreign judgement to Scotland’s supreme Court, the Court of Session. The application should contain an authentic copy of the judgement, a certificate stating the judgement is enforceable in the foreign country and has been served and remains unsatisfied, and affidavit stating the sums due in the judgement including interest.

2.  The application will usually be considered in private by a Judge and if he or she is satisfied that it meets the requirements under the Court rules then an order for the registration of the EU judgement will be issued.

3. The order (or warrant for registration) will then be served on the Scottish debtor who has one month to appeal (if domiciled in Scotland) before the EU judgement is registered in the Books of Council and Session. The grounds for appeal are limited.

4. Before or during the appeal period, if the EU creditor is concerned that the Scottish debtor may dissipate their assets to avoid enforcement then protective steps can be taken by applying to the Court for interim diligence on the dependence. Two common forms of diligence are firstly a bank arrestment (freezing the debtor’s bank account), and secondly, inhibition (preventing a debtor from transferring ownership or selling a property).

5. If no appeal is made within the appeal period then the judgement is registered in the Books of Council and Session. The effect of the registration is to turn the EU judgement into a Scottish judgement. It can now be enforced in Scotland.

THE UNCONTESTED JUDGEMENT REGISTRATION PROCESS

Where a judgement has been obtained from an EU country (except Denmark) and the Scottish debtor has not defended it then the process is more straightforward than a contested judgement registration.

1. The Court in the EU country must issue a copy judgement, certificate stating the claim is uncontested and a certificate stating the sums due.

2. The documentation from the EU country is then registered directly in the Books of Council and Session. It is now ready to be enforced.

THE ENFORCEMENT PROCESS

In Scotland, the enforcement of a judgement is carried out by Sheriff Officers and Messengers-At-Arms (who are officers of the Court). A Charge for Payment is served on the debtor giving him or her 14 days to pay the debt (if the debtor resides in Scotland). Once the 14 days has elapsed then enforcement can be undertaken.

Some of the most common enforcement measures are:

Bank Arrestment

An arrestment can be served on the debtor’s bank account to freeze funds to pay the outstanding debt.

Arrestment in Execution

If the debtor owes a third party any money then an arrestment can be served on the third party preventing them from transferring the money to the debtor until the outstanding debt is paid.

Earnings Arrestment

If the debtor’s employer is known then an arrestment may served on the employer so that a deductions can be made from the debtor’s salary to pay the outstanding debt.

Inhibition

An inhibition can be registered after it has been served on the debtor by Sheriff Officers. The Inhibition lasts for five years and may be renewed if necessary.

CONCLUSION

The registration and enforcement of an EU judgement used to be a more formal and expensive process but the EU Regulation has significantly simplified the process and it is now much more difficult for a Scottish debtor to stifle the enforcement of an EU judgement.

If you have an EU judgement and require assistance with registration and enforcement in Scotland, please do not hesitate to get in touch with us.

Disclaimer: While every effort has been made to ensure the accuracy of this blog post, it is not intended to provide legal advice as individual situations will differ. No recipients of content in this blog post should act or refrain from acting on the basis of the blog post without seeking the appropriate legal advice on the particular facts and circumstances at issue from a qualified solicitor in their jurisdiction. The blog post is for general information only and is not legal advice. The law changes frequently and varies from jurisdiction and jurisdiction. No solicitor-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with a solicitor qualified to practise in your jurisdiction.  Should you be interested in seeking our assistance with a legal matter, please contact the Dispute Resolution team on 0131 226 8200.

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