Part 1 - RCS 62.40 - General

PART 1 - RCS 62.40 - GENERAL

1. RCS 62.40 concerns the issuing of certain certificates of enforceability in relation to the enforcement of Scottish court judgments in other countries, as well as deeds which have been registered for execution in the Books of Council and Session. These other countries include those with whom the United Kingdom has entered into a reciprocal arrangement under the Brussels or Lugano conventions, or other European Union Member States.

The full terms of RCS 62.40 are below, subparagraphs (4) to (6) concern registered documents.

2. The 1982 Act referred to is the Civil Jurisdiction and Judgments Act 1982 (CJJA). The Regulation to which the Rule refers is the EC Regulation 44/2001 which applies to all the European Union Member States. The certificates issued under the CJJA Act are dealt with at Part 1A below and the guidance for those under the EC Regulation can be found at Part 1B. 

PART 1A - RCS 62.40(4) CERTIFICATES UNDER THE CIVIL JURISDICTION AND JUDGMENTS ACT

Background and general information

1. RCS 62.40(4) provides for an application to be made to the Keeper for a certificate of enforceability under Schedule 1 or Schedule 3C of the CJJA. Schedule 1 sets out the Brussels Convention and Schedule 3C sets out the Lugano Convention, both of which are international treaties providing a framework for the courts of the acceding countries to apply to decide which has jurisdiction in certain types of dispute involving an international dimension, and for the reciprocal recognition and enforcement of court orders or certain agreements made in those contracting states. The purpose of these conventions being set out in the CJJA was to give them the force of law in the United Kingdom.

2. As from 2006, the Brussels convention was, for EU Member States, essentially replaced by EC Regulation 44/2001 (see Part 1B for certificates under the provisions of that regulation). This means that, if an agent intends to use his certificate in one of the other EU Member States, typically he/she will want to use a certificate under RCS 62.40(5) (See Part 1B) or a European Enforcement Order certificate under RCS 62.84 (See Part 4). At present, the provisions of the Lugano Convention might be used by a pursuer based in the United Kingdom, if the debtor has assets in Iceland,Switzerland,Norway or Lichtenstein.

3. Given that the position is complicated and that additional countries outside the EU may accede to the Lugano Convention in the future, a registration officer should not offer advice to an agent or applicant seeking information on which certificate is the most appropriate in their circumstances. It is expected that few requests will be received for either of these forms of certificate.

4. The certificate issued by the registration officer under RCS 62.40(4) will be presented to a court in the foreign jurisdiction together with an extract of the registered document or court settlement, with the intention that the court will formally "recognise" the enforceability of the relevant obligations, typically by issuing an order to that effect. The creditor can then proceed to enforce the terms of the agreement by using the forms of diligence available in the foreign jurisdiction.

5. The relevant parts of RCS 62.40 relating to the issuing of a certificate under Schedule 1 or 3C of the CJJA are set out below.

6. An authentic instrument is defined in these conventions as including documents registered as an 'authentic instrument'; this will include any deed registered for execution in the Books of Council and Session. It is considered that applications for such certificates in relation to a court settlement will be rare in practice. This is because, where parties to a court action in Scotland reach a settlement, typically the court will be asked to "interpone its authority" by issuing a decree reflecting the terms of the parties' agreement. Therefore, where a party wishes to enforce the agreement, the decree would provide the basis for diligence. If not, then the agreement is likely to be registered for execution in the Books of Council and Session and it would be appropriate to use a certificate for the enforceability of the agreement as an authentic instrument.

Request by letter for certificate and extract

7. Any application for either type of certificate under RCS 62.40(4) must be in writing. The registration officer should not process a request received by telephone. Although an email from the applicant will suffice for the purposes of a request, the applicant must also submit the principal of the required affidavit; a photocopy, certified copy or digital image of an affidavit is not acceptable.

8. The request should be for a certificate or certificates and for an extract of the registered document. The applicant should be expected to state clearly which type of certificate they are applying for and clarification should be sought if it is unclear. The registration officer preparing and signing the certificate on behalf of the Keeper, will be certifying that the extract attached is a true copy of the document registered in the Books of Council and Session and in order to do so should arrange for an extract to be prepared, even if the agent submits an extract which appears to be correct. In any event, the fee chargeable for the certificate includes the cost of an extract (see Part 6).

Affidavit required

9. The applicant must submit an affidavit with their request. A certified copy, photocopy or image of the principal affidavit is not acceptable. If no affidavit is submitted or an unacceptable copy is provided, then the registration officer cannot proceed with processing the request until the applicant provides the principal. Usually the affidavit will run in the name of the applicant who wishes to enforce the deed registered for execution, but it need not do so. On occasion, affidavits have been made by the agent acting on behalf of the applicant. The affidavit should generally contain evidence in support of the application for the certificate in question, but in terms of RCS 62.40(6) it is only required to include:

• a statement that enforcement of the agreement or other document has not been suspended, and
• that the time for enforcement has not expired.

10. If an affidavit is submitted, but the registration officer dealing with the application is not satisfied as to the required content (see paragraph 9), guidance may be sought by the CAJR manager from Legal Services as to whether the application can proceed.

11. If the applicant does submit a draft affidavit before making a formal application for the certificate, it is appropriate for the registration officer to ask the agent to expand the affidavit to make clear their preferred content of the certificate in complicated cases. However, as the requirements are set out in RCS 62.40(6), it is not appropriate to insist on content not required by that rule.

Registration officer should be satisfied as to required content of certificate

12. If, in the context of the application with which you are dealing, it is unclear what obligation (or obligations) the agent wishes to enforce, and thus what needs to be referred to in the certificate, then you should contact the agent/applicant in the first instance. It is best to seek this confirmation in writing/email. It is also appropriate, though not necessary, to have the agent confirm that they are content with a draft of the certificate, particularly if the document setting out the obligation/s in question is complex or the terms of affidavit or accompanying letter do not make this clear. If this is not possible or the registration officer remains unsure after consulting the agent or applicant on the preferred content of the certificate in any given case, guidance can be sought by the CAJR manager from Legal Services.

Form of certificates

13. For both types of certificate, a single style is provided in the Rules of Court: Form 62.40B. A sample of a completed certificate is set out in Annex 1 of this guidance. 

PART 1B - RCS 62.40(5) CERTIFICATES UNDER EC REGULATION 44/2001

1. Rule of Court 62.40(5), provides for an application to be made to the Keeper for a certificate of enforceability under one of two articles of EC Regulation 44/2001. The relevant parts of RCS 62.40 are replicated below-

2. In the rule, references to the "Council Regulation" are to EC Regulation 44/2001.

Background and general information

3. EC Regulation 44/2001, to which RCS 62.40(5) refers, makes provision for the reciprocal recognition of a court judgment, authentic instrument or court approved settlement given or made in any of the EU member states in the other member states, where that judgment etc deals with certain civil and commercial matters.

4. In most cases, a request made under this Rule of Court will be for a certificate of enforceability relating to a document registered for execution in the Books of Council and Session. Since, in Scotland, a court settlement will usually be encompassed in a decree issued by the court in terms of the parties' agreement the decree itself would found a basis for enforcement. If not, then the settlement agreement would usually be registered for execution and a certificate in relation to the registered agreement as an authentic instrument would be available. Therefore, it is anticipated that few requests, if any, will be received for a certificate relating to a court settlement.

5. The certificate issued by the registration officer under RCS 62.40(5) will be presented to a court in the foreign jurisdiction together with the extract of the registered document or court settlement, with the intention that the court will formally "recognise" the enforceability of the relevant obligations by issuing an order, and the creditor can then proceed to enforce the terms of the agreement by using the forms of diligence available in the foreign jurisdiction.

Request by letter for certificate and extract

6. Any application for either type of certificate under RCS 62.40(5) must be made in writing. The registration officer should not process a request received by the telephone. Although an email from the applicant will suffice for the purposes of a request, the applicant must submit the principal of the required affidavit; a photocopy, certified copy or digital image of an affidavit is not acceptable.

7. The rule requires that the written request should be for a certificate or certificates under one of these articles and for an extract of the registered document. The applicant should be expected to state clearly which type of certificate they are applying for and clarification should be sought if it is unclear. It is also appropriate for the registration officer to contact the agent where they fail to request an extract along with the certificate to advise them that the rule requires the request to be made and that if the agent intends to proceed with the request, that an extract will be provided and charged for. The Rule of Court is the registration officer's authority to issue the certificate and care ought to be taken to ensure compliance.

Affidavit required

8. The applicant must submit an affidavit with their request. A certified copy, photocopy or image of the principal affidavit is not acceptable. If no affidavit is submitted or an unacceptable copy is provided, then the registration officer cannot proceed with processing the request until the applicant provides the principal. Usually the affidavit will run in the name of the person who wishes to enforce the deed registered for execution, but it need not do so. On occasion, affidavits have been given by the agent acting on behalf of the applicant. The affidavit should generally contain evidence in support of the application for the certificate in question, but in terms of RCS 62.40(5) it is only required to include:

• a statement that enforcement of the agreement or other document has not been suspended, and
• that the time for enforcement has not expired.

9. If an affidavit is submitted, but the registration officer dealing with the application is not satisfied as to the required content (see paragraph 8), guidance may be sought by the CAJR manager from Legal Services as to whether the application can proceed.

10. If the applicant does submit a draft affidavit before making a formal application for the certificate, it is appropriate for the registration officer to ask the agent to expand the affidavit to make clear their preferred content of the certificate in complicated cases. However, as the requirements are set out in RCS 62.40(6), it is not appropriate to insist on content not expressly required by that rule.

Registration officer should be satisfied as to required content of certificate

11. If, in the context of the application with which you are dealing, it is unclear what obligation (or obligations) the agent wishes to enforce, and thus what needs to be referred to in the certificate, then the registration officer should contact the agent/applicant in the first instance. It is best to seek this confirmation in writing/email. It is also appropriate, though not necessary, to have the agent confirm that they are content with a draft of the certificate particularly if the document setting out the obligation/s in question is complex or the terms of affidavit or accompanying letter do not make this clear. If this is not possible or the registration officer remains unsure after consulting the agent or applicant on the preferred content of the certificate in any given case, guidance can be sought by the CAJR manager from Legal Services.

Form of Certificates

12. For certificates under Article 57 of the Regulation, a standard form certificate is provided at Annex VI of the Regulation. A sample of a completed certificate under Article 57 is set out in Annex 2 of this guidance. A standard form of certificate for Article 58 certificates is provided at Annex V of the Regulation; this form is replicated at Annex 3 of this guidance. No requests have yet been received for a certificate under Article 58. Further guidance can be sought from Legal Services for completing a certificate under Article 58 as appropriate, in the unlikely event that one is requested.