Van McKellar | Partner

Enforcing Foreign (i.e. non-Scottish) Judgements in Scotland

It can often seem to be adding insult to injury to get a court judgement only to be frustrated because it needs to be enforced in Scotland.

That fact may be something to consider at the outset of the litigation (sometimes complex questions of jurisdiction can arise on top of other tactical considerations of where to sue).

However, at the stage of enforcement, then seeking to enforce a foreign judgement for payment in Scotland often involves an administrative exercise involving registration and the purpose of this article is set out what is involved in that and those cases to which other procedures have to be adopted.

(i) Judgements from another court in the UK

(a) Money judgement.

Where the judgement is for the payment of money from a debtor and comes from an English, Welsh or Northern Irish court, then the process is straightforward. A “Certificate of Money Provisions” has to be obtained from that court which sets out the sum(s) due. That Certificate is then registered (within six months) in Scotland in the Books of Council and Session and on registration the judgement can be enforced against the debtor in Scotland as if it were a judgement from a Scottish court.

(b) Non-money judgement

A more involved process is encountered if the other UK court’s judgement is not for the payment of money. Here, a court process has to be pursued by way of a Petition to the Scottish court accompanied by various prescribed documentation including from the original court. But while a more formal process, it is still the implementation of another UK court’s decision and so the outcome a relative formality, and on the Petition being granted by the Scottish court the judgement can be registered in the Books of Council and Session and following that registration it can be enforced.

(ii) European Judgements

The procedure involved (whether or not a money judgement) is similar to that involved for non-money judgements from another UK court – a petition needs to be taken to the Scottish court seeking formal registration in Scotland and that accompanied by various documentation including from the original court. Again registration in the Books of Council and Session is required, but this is not permitted until the Scottish court’s warrant has been obtained and served on the other party with that other party having one (sometimes two) months to appeal the court’s warrant.

A more straightforward process is involved where the European judgement was uncontested. That judgement, duly certified as such by the foreign court, can be registered directly in the Books of Council and Session and enforced.

As Brexit progresses it remains to be seen whether and how these rules might change.

(iii) Non UK/European Judgements

More complexity is encountered with judgements from other foreign courts. Specific advice needs to be sought as matters hinge on whether there are reciprocal arrangements in place with the foreign country regarding enforcement of court judgements. If there is such a reciprocal arrangement then the process followed is similar to that regarding contested European judgements. Otherwise and including for US court judgements, a more complicated court process needs to be pursued, and one which is more open to being defended, which is that of seeking a “decree conform” (i.e. asking for the same judgement is issued by the Scottish court as was issued by the foreign court).

Van McKellar

Van McKellar

Dispute Resolution Team

“I see my role as a problem solver – seeking to understand the factual basis of my clients’ disputes and applying a legal and commercial analysis in seeking to resolve them, whether by negotiation or by means of litigation or some other alternative means of dispute resolution.”

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