Foreign decree case shows up hole left in court rules
An unexplained repeal of a provision of the Court of Session Rules has left parties having to rely on the common law to enforce a judgment of the Belgian courts, following an Outer House decision.
Lord Brailsford held that Drika BVBA and two others, who had obtained judgment for payment of money against Claire Giles in a court in Antwerp in December 2013, were unable to register the judgment for enforcement under rule 62.28 because the rule had been repealed in 2015, and their only remedy was to seek decree conform at common law.
On a challenge by the respondent against the grant of a warrant for registration, the petitioners accepted that the judgment could no longer be enforced under rule 62.28, but argued that as the judgment was covered by Regulation (EC) 44/2001, which had direct effect, the Regulation conferred jurisdiction on the court to entertain applications for registration of judgments from other EU member states; and in any event that the court had an inherent power to discharge its responsibilities and ensure that a mechanism for registration existed.
Neither counsel nor Lord Brailsford could think of a plausible reason why the rules of the court were amended in the way they were, but the judge observed: "I am less certain whether this reflects, as was suggested by counsel for the petitioners, an error on the part of the Rules Council or there exists some other explanation." He added: "Whilst the position is apparently unsatisfactory I do not feel able to conclude that there has been an error. The implication of this is that there is no mechanism in the Rules of Court for registration of a decree such as the one in the present petition."
As respects the petitioners' proposals, he said that while the EU regulation had direct effect, it left the procedure to the member state in which enforcement was sought. "I accordingly conclude that there is no argument on direct effect available to the petitioners."
On the court's inherent jurisdiction, he added that "on the basis of all the authorities cited to me it is clear that the court must use its powers in this area with caution". The court should not seek to devise rules on practice lightly, and "Whilst the court has some inherent power to regulate matters of practice, the scope to interfere or innovate in relation to procedure controlled by Rules of Court is far more limited. That is exactly the position which applies in the present case. It follows that I do not feel able to rely on any inherent power as a means to innovate in the way suggested by counsel for the petitioners."
Lord Brailsford concluded: "I appreciate that by rejecting the arguments advanced by the petitioners they may be left with no option but to seek decree conform. I acknowledge that this may involve further procedure and incur additional expense. I would not regard these practical considerations, albeit I acknowledge their significance, as justification for innovation."