Part 3 - RCS 62.42

Certificates under schedule 7 of the Civil Jurisdiction and Judgments Act (enforcement in another part of the United Kingdom) 

1. Rule of Court 62.42(4) provides for an application to be made to the Keeper for a certificate of enforceability under Schedule 7 of the Civil Jurisdiction and Judgments Act 1982 in relation to obligations in a document registered in the Books of Council and Session which do not relate to money. The entirety of RCS 62.42 is replicated below.

2. The certificate issued by the registration officer under RCS 62.42(4) 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 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 62.42(4) must be in writing. The registration officer should not process a request received by 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 request should be for a certificate or certificates and for an extract of the registered document for each certificate requested. The registration officer preparing and signing the certificate will be certifying (on behalf for 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, the officer should arrange for an extract to be prepared, even if the agent submits an extract which appears to be correct. (The fee chargeable for each certificate includes the cost of an extract in any event; see Part 6). 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 or an unacceptable copy affidavit is submitted, 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 62.42(5) with reference to RCS 62.42(2) and the form of certificate provided in the RCS, it should include:

• confirmation that enforcement of the deed has not for the time being been suspended,
• the time available for its enforcement has not expired, and
• the address of the party entitled to enforce, and the usual or last known address of the party liable to execution.

6. If the registration officer dealing with the application is not satisfied as to the required content, guidance may be sought by the CAJR manager from Legal Services as to whether the application can proceed.

Registration officer should be satisfied as to nature of obligation(s) being enforced

7. The certificate produced under RCS 62.42 must concern a non-money provision (for example, an obligation to transfer ownership of a house or land). If the obligation which the applicant wishes to enforce appears to the registration officer to concern the payment of money, then if the matter cannot be clarified with the agent (since a certificate under RCS 62.41 is potentially more appropriate) guidance can be sought by the CAJR manager from Legal Services. In the case of this type of certificate, the style provided by RCS 62.42 (Form 62.42-B) does not appear to require that the obligation or obligations which the applicant seeks to enforce be set out in the certificate. This may be why RCS 62.42(6) (of all the RCS covered in this guidance) requires that explicitly that the Keeper "attach [the certificate] to the extract of the document".

Form of certificate

8. A sample of a completed certificate under RCS 62.42 is set out in Annex 5 of this guidance.