Part 2 - RCS 62.41

Certificates under schedule 6 of the Civil Jurisdiction and Judgments Act (enforcement in another part of the United Kingdom) 

1. RCS 62.41(3) provides for provides for an application to be made to the Keeper for a certificate of enforceability under Schedule 6 of the Civil Jurisdiction and Judgments Act 1982 where a document registered in the Books of Council and Session contains a provision or provisions related to the payment of a sum or sums of money. RCS 62.41 is replicated below:

2. The certificate issued by the registration officer under RCS 62.41(3) will be presented to the appropriate court in the part of the United Kingdom where the applicant wishes to enforce the obligation/s set out, for registration in the books of that court. Then it may be enforced as if it had been a judgment of that court. The appropriate court can be determined by the provisions of the 1982 Act.

Request by letter for certificate and extract

3. Any application for a certificate under RCS 62.41(3) must be in writing. Do not process a request received over the telephone. Although an email from the applicant will suffice, the applicant must submit the principal of the affidavit; a photocopy, certified copy or digital image of an affidavit is not acceptable.

4. The registration officer preparing and signing the certificate will be certifying (on behalf of the Keeper) that the extract attached is a true copy of the document registered in the Books of Council and Session. In order to do so properly, they should arrange for an extract to be prepared, even if the agent submits an extract which appears to be correct. In addition, the rule of court is the registration officer's authority from the Court of Session to issue the certificate and care ought to be taken to ensure compliance.

Affidavit required

5. The applicant must submit an affidavit with their request. A certified copy, photocopy or digital image of the principal affidavit is not acceptable. If no affidavit is submitted or an unacceptable copy of the affidavit 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. This affidavit should generally contain evidence in support of the application for the certificate in question, but in terms of RCS 62.41(4) it is required to include confirmation of-

• the sum or aggregate of sums including interest and expenses payable and unsatisfied, and
• that enforcement has not been suspended,
• the time available for its enforcement has not expired, and
• details of the address of the party entitled to enforce the money provisions as well as the usual or last known address of the person liable.

6. If an affidavit is submitted, but the registration officer dealing with the application is not satisfied as to the required content, guidance may be sought by the CAJR Team Leader from RPT as to whether the application can proceed.

7. 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 62.41(4), it is not appropriate to insist on content not required by that rule.

Registration officer should be satisfied as to required content of certificate

8. If 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 the 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, guidance may be sought by the CAJR Team Leader from RPT.

9. The certificate produced under RCS 62.41 must concern a money provision or money provisions. If the obligation which the applicant wishes to enforce does not appear to concern money, and the matter cannot be clarified with the agent guidance can be sought by the CAJR Team Leader from RPT. A certificate under RCS 62.42 is potentially more appropriate if the obligation/s is/are not "money provisions".

Form of certificates

10. A sample of a completed certificate under Schedule 6 is set out in Annex 4 of this guidance.