Amendment of the Rules of the Court of Session 1994 – 2019 Hague Convention

rule 3 + 3.  In Chapter 62—

rule 3 a + (a)in Part V of Chapter 62 (Recognition and enforcement of judgments under the Civil Jurisdiction and Judgments Act 1982, Council Regulation (EC) No. 44/2001 of 22nd December 2001, the Convention on choice of court agreements of 30th June 2005 or the Lugano Convention of 30th October 2007)(1), for the heading substitute—

“PART V

RECOGNITION AND ENFORCEMENT OF JUDGMENTS UNDER THE CIVIL JURISDICTION AND JUDGMENTS ACT 1982, THE CONVENTION ON CHOICE OF COURT AGREEMENTS OF 30TH JUNE 2005 OR THE CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN CIVIL OR COMMERCIAL MATTERS OF 2ND  JULY 2019”;

rule 3 b + (b)in rule 62.26 (application and interpretation of this Part)(2)—

rule 3 b i + (i)for paragraph (1) substitute—

“(1) This Part applies to the recognition and enforcement of a judgment under the 1982 Act, the 2005 Hague Convention or the 2019 Hague Convention.”;

rule 3 b ii + (ii)in paragraph (2)—

rule 3 b ii aa + (aa)omit the definitions of “the Council Regulation” and “judgment”;

rule 3 b ii bb + (bb)after the definition of “the 2005 Hague Convention”, insert—

““the 2019 Hague Convention” means the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters concluded on 2nd July 2019 at The Hague(3).”;

rule 3 b ii cc + (cc)omit the definitions of “the Lugano Convention” and “Member State”;

rule 3 c + (c)in rule 62.28 (enforcement of judgments, authentic instruments or court settlements from another Contracting State, Member State or State bound by the Lugano Convention)(4)—

rule 3 c i + (i)for the heading substitute “Enforcement of judgments from another Contracting State”;

rule 3 c ii + (ii)in paragraph (1)—

rule 3 c ii aa + (aa)omit sub-paragraphs (a) and (b);

rule 3 c ii bb + (bb)after sub-paragraph (ba) insert—

“(bb)section 4C of the 1982 Act (registration and enforcement of judgments under the 2019 Hague Convention)(5),”;

rule 3 c ii cc + (cc)omit sub-paragraph (c);

rule 3 c iii + (iii)in paragraph (2), for “(3), (3AA)” substitute “(3AA), (3AAA)”;

rule 3 c iv + (iv)omit paragraphs (3) and (3A);

rule 3 c v + (v)after paragraph (3AA) insert—

“(3AAA) For applications to which paragraph (1)(bb) applies, in addition to the information specified in paragraph (2), the following must be produced with the petition—

(a)the exclusive choice of court agreement, a certified copy thereof, or other evidence of its existence; and

(b)in the case referred to in Article 11 (judicial settlements) of the 2019 Hague Convention, a certificate of a court of the State of origin that the judicial settlement or a part of it is enforceable in the same manner as a judgment in the State of origin.”;

rule 3 c vi + (vi)in paragraph (3AB) after “Convention” insert “or Article 12(3) of the 2019 Hague Convention”;

rule 3 c vii + (vii)in paragraph (4) for “(3), (3AA), (3AB) or (3A)” substitute “(3AA), (3AAA) or (3AB)”;

rule 3 d + (d)for rule 62.29 (protective measures and interim interdict)(6) substitute—

Protective measures and interim interdict

62.29.  On lodging a petition, the petitioner may, at any time until the expiry of the period for lodging an application to set aside a decision referred to in rule 62.34A or a decision being made on such an application, apply by motion for—

(a)a warrant for the execution of protective measures; or

(b)an interim interdict.”;

rule 3 e + (e)in rule 62.30 (warrant for registration under the 1982 Act, the Council Regulation, the 2005 Hague Convention or the Lugano Convention)(7)—

rule 3 e i + (i)for the heading substitute “Warrant for registration under the 2005 Hague Convention or the 2019 Hague Convention”;

rule 3 e ii + (ii)in paragraph (1), from “the 1982 Act” to “the Lugano Convention” substitute “the 2005 Hague Convention or the 2019 Hague Convention”;

rule 3 e iii + (iii)in paragraph (2)—

rule 3 e iii aa + (aa)for “appeal” where it twice occurs substitute “application”;

rule 3 e iii bb + (bb)for sub-paragraph (a) substitute—

“(a)the period within which an application mentioned in rule 62.34A to set aside the interlocutor may be made; and”;

rule 3 e iii cc + (cc)in sub-paragraph (b)(ii), for “its disposal” substitute “a decision has been made on it”;

rule 3 f + (f)in rule 62.32 (registration under the 1982 Act, the Council Regulation, the 2005 Hague Convention or the Lugano Convention)(8)—

rule 3 f i + (i)for the heading substitute “Registration under the 2005 Hague Convention or the 2019 Hague Convention”;

rule 3 f ii + (ii)in paragraph (1)—

rule 3 f ii aa + (aa)omit “, authentic instruments and court settlements”;

rule 3 f ii bb + (bb)omit “the 1982 Act, the Council Regulation,”;

rule 3 f ii cc + (cc)for “the Lugano Convention” substitute “the 2019 Hague Convention”;

rule 3 g + (g)in rule 62.33 (service of warrant for registration under the 1982 Act, the Council Regulation, the 2005 Hague Convention or the Lugano Convention)(9) for the heading substitute “Service of warrant for registration under the 2005 Hague Convention or the 2019 Hague Convention”;

rule 3 h + (h)omit rule 62.34 (appeals under the 1982 Act, the Council Regulation or the Lugano Convention)(10).

rule 3 i + (i)in rule 62.34A (appeals under section 6B(1) of the 1982 Act (appeals in relation to registration of judgments under the 2005 Hague Convention))(11)—

rule 3 i i + (i)for the heading substitute “Applications to set aside decisions on registration of judgments under the 2005 Hague Convention or the 2019 Hague Convention”;

rule 3 i ii + (ii)for paragraph (1) substitute—

“(1) An application under section 6B(1)(12) or 6C(1)(13) of the 1982 Act (applications to set aside decisions on registration of judgments) is to be made by motion—

(a)to the Lord Ordinary; and

(b)within one month of service under rule 62.33 (service of warrant for registration under the 2005 Hague Convention or the 2019 Hague Convention) or within two months of such service where service was executed on a person domiciled in another Contracting State or, as the case may be, State bound by the 2005 Hague Convention or the 2019 Hague Convention.”;

rule 3 i iii + (iii)in paragraphs (2) and (3) for “appeal” where it twice occurs substitute “application”;

rule 3 i iv + (iv)in paragraph (3) for “appellant” substitute “applicant”;

rule 3 j + (j)omit rule 62.35 (reclaiming under the 1982 Act, the Council Regulation, the 2005 Hague Convention or the Lugano Convention)(14);

rule 3 k + (k)in rule 62.36 (recognition of judgments from another Contracting State, Member State or State bound by the Lugano Convention)(15)—

rule 3 k i + (i)for the heading substitute “Recognition of judgments from another Contracting State”;

rule 3 k ii + (ii)for paragraph (1) substitute—

“(1) For the purposes of section 4B (registration and enforcement of judgments under the 2005 Hague Convention) or 4C (registration and enforcement of judgments under the 2019 Hague Convention)(16) of the 1982 Act, an interlocutor pronounced under rule 62.30(1) (warrant for registration under the 2005 Hague Convention or the 2019 Hague Convention) implies recognition of the judgment so dealt with.”;

rule 3 k iii + (iii)omit paragraph (2);

rule 3 l + (l)in rule 62.39 (cancellation of registration under the 1982 Act, the Council Regulation, the 2005 Hague Convention or the Lugano Convention)(17)—

rule 3 l i + (i)for the heading substitute “Cancellation of registration under the 2005 Hague Convention or the 2019 Hague Convention”;

rule 3 l ii + (ii)for paragraph (a) substitute—

“(a)an interlocutor under rule 62.30(1) (warrant for registration under the 2005 Hague Convention or the 2019 Hague Convention) is recalled and registration under rule 62.32 (registration under the 2005 Hague Convention or the 2019 Hague Convention) is ordered to be cancelled by the court further to an application to set aside a decision on registration under rule 64.34A (applications to set aside decisions on registration of judgments under the 2005 Hague Convention or the 2019 Hague Convention); or”;

rule 3 m + (m)for rule 62.40 (enforcement in another Contracting State or Member State of Court of Session judgments etc.)(18) substitute—

Enforcement in another Contracting State of Court of Session judgments etc.

62.40.—(1) Subject to paragraph (2), where a person seeks to apply under section 12 of the 1982 Act for recognition or enforcement in another Contracting State of a judgment given by the court, the person must apply by letter to the Deputy Principal Clerk for—

(a)a certificate in Form 62.40-A;

(b)a certified copy of the judgment; and

(c)if required, a certified copy of the opinion of the court.

(2) Where a person seeks to apply under Chapter III of the 2005 Hague Convention or Chapter II of the 2019 Hague Convention for recognition or enforcement in another Contracting State of a judgment given by the court, that person must apply by letter to the Deputy Principal Clerk for—

(a)a certificate under Article 13(3) of the 2005 Hague Convention or, as the case may be, Article 12(3) of the 2019 Hague Convention;

(b)a certified copy of the judgment; and

(c)if required, a certified copy of the opinion of the court.

(3) The Deputy Principal Clerk must not issue a certificate under paragraph (1)(a) or (2)(a) unless the person seeking to apply for enforcement produces to the Deputy Principal Clerk an execution of service of the judgment on the person on whom it is sought to be enforced.

(4) Where a person seeks to apply under Article 12 of the 2005 Hague Convention or Article 11 of the 2019 Hague Convention for enforcement in another Contracting State of a judgment registered for execution in the Books of Council and Session, that person must apply by letter to the Keeper of the Registers for—

(a)a certificate under Article 13(1)(e) of the 2005 Hague Convention or, as the case may be, Article 12(1)(d) of the 2019 Hague Convention; and

(b)an extract of the judgment.

(5) The Keeper of the Registers must not issue a certificate under paragraph (4) unless there is produced to the Keeper of the Registers an affidavit verifying that enforcement has not been suspended and that the time available for enforcement has not expired.”;

rule 3 n + (n)in the appendix (forms)(19)—

rule 3 n i + (i)for Form 62.28 (form of petition for registration of a judgment under section 4 of the Civil Jurisdiction and Judgments Act 1982 or under Article 38, Article 57 or Article 58 of the Lugano Convention)(20) substitute Form 62.28 (form of petition for registration of a judgment under section 4B or 4C of the Civil Jurisdiction and Judgments Act 1982, the 2005 Hague Convention or the 2019 Hague Convention) as set out in schedule 3 of this Act of Sederunt; and

rule 3 n ii + (ii)omit Form 62.33 (form of notice of decree and warrant for registration of a judgment under section 4 of the Civil Jurisdiction and Judgments Act 1982 or under Article 38, Article 57 or Article 58 of the Lugano Convention)(21).