Thursday, 13 February 2014

Registering an English judgment for enforcement in Scotland

English solicitors are used to being instructed to raise proceedings against opponents who are based in Scotland, very often by clients who don't see there's a problem.  We lawyers know that, as legal jurisdictions, Scotland and England are quite distinct. There's really little reason, though, why our clients need know or care, at least until they have to consult us.

Background
Businesses in England can and do deal every day with businesses in Scotland without recognising that, as far as the lawyers are concerned, they've been dealing with a company in a different country. When there's a problem and the clients need action raised, they can be surprised to be told. Even sophisticated clients who have been through the courts in England many times over may never have seen the inside of a Sheriff Court or consulted an Advocate at Parliament Hall or litigated in the Court of Session. They may be apprehensive at the prospect. They won't know the law, they won't know what's involved procedurally and they won't know how much it's all going to cost. Still, most clients will be happily impressed if you're able to explain that you have an existing relationship with trusted and experienced commercial litigators in Scotland and that you can get them moving on things straight away. That will, of course, generally and clearly be the best thing to do for the interests of even the most apprehensive client. Issue fees in Scotland are in fact minimal compared to those faced south of the border (in effect no more than £100 whatever the level of claim). More importantly, Scotland is likely to be the location of the assets from which any recovery for the client will be made and you'll need to involve Scottish agents at some point. Better sooner rather than later, particularly as there may be only a short time to take critically important, interim measures to preserve whatever assets there are in the face of a threat to dissipate them. The whole process of getting undefended judgment in Scotland is perhaps five to six weeks from instruction to receipt of the written extract decree and can be made less than that in cases of demonstrable urgency. Most clients will be pleased if you can instruct your recommended Scottish agents and, conversely, won't thank you if they end up making no recovery because action wasn't raised in Scotland quickly enough. 

Still, there may occasionally be circumstances in which you'll choose to sue a Scottish company in the County or High Court, despite the added cost and procedure. It's certainly likely to be more convenient for the lawyers, allowing management and resolution of the dispute to take place on familiar ground and under familiar rules. In the context of a commercial dispute, in the absence of a contractual provision prorogating jurisdiction to the Scottish courts (something you'd want to check), it may well be possible to raise the action in the English courts. You'd want to make sure you followed the rules about service outwith the jurisdiction, say, and for obtaining default judgment against a party based in Scotland, but no doubt you'd be able to get judgment. There remains, of course, one problem. Once you've got it, what use is an English judgment in Scotland?

Strictly, none. The judgments of the courts in one jurisdiction are not directly enforceable in the other. Finding out how to get the Scottish courts to recognise an English judgment can be time-consuming if you've never had to do it before or if you've just forgotten. The client is unlikely to want to pay you to research the question. A brief and concise guide to what to do might be useful.

What you need to get from the English court
The basis for the procedure is section 18 of, and paragraph 2 of Schedule 6 to, the Civil Jurisdiction and Judgments Act 1982 and CPR 74.17. You need to apply under CPR 74.17 for a certificate of money provision by filing, at the court where the judgment was given or has been entered:
1. An application, which should be by Form N244, in appropriate terms, stating that the judgment remains unsatisfied and applying for the issue (by virtue of the relevant provisions of the 1982 Act and CPR 74.17) of a certificate of judgment to register for enforcement in Scotland. 
2. Written evidence (complying with Practice Direction 32) stating:
(a) the name and address of the judgment creditor and, if known, of the judgment debtor;
(b) the sums payable and unsatisfied under the money provisions of the judgment;
(c) where interest is recoverable on the judgment, either –
(i) the amount of interest which has accrued up to the date of the application, or
(ii) the rate of interest, the date from which it is recoverable, and the date on which it ceases to accrue;
(d) that the judgment is not stayed;
(e) the date on which the time for appealing expired or will expire;
(f) whether an appeal notice has been filed;
(g) the status of any application for permission to appeal; and
(h) whether an appeal is pending.
3. A draft certificate in Form 111 .
4. Once you have the certificate, pass it to your Scottish solicitors to register. 
The registered certificate then authorises exactly the same recovery procedures as would have been available had the judgment been granted by the Scottish courts. What those procedures - "diligence" in the parlance of Scots law - are, and which to use and when, is for another post. We'll be happy to advise on the costs and options if you want to get in touch.

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