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Cite as: [2018] CSIH 42, [2018] ScotCS CSIH_42

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Brodie

Lord Drummond Young

OPINION OF THE COURT

[2018] CSIH 42

P147/17

delivered by LORD BRODIE

in the Reclaiming Motion

in the petition

(FIRST) DRIKA BVBA; (SECOND) ROGER VAN CRAEN; and (THIRD) NV MALU

Petitioners and Reclaimers

against

CLARE RAMSAY GILES

Respondent

Petitioners and Reclaimers: Dewar QC, Bell; Russel & Aitken LLP (for Yuill & Kyle, Solicitors,

Glasgow)

Respondent: Reid; Brodies LLP

2 May 2018

Introduction

[1] It was the opinion of Lord Justice Clerk Braxfield that “there can be no conflictus

legum among civilized nations”, and accordingly,

“[if] I have a res judicata in England, freeing me from a demand; I come to Scotland,

can I be taken up there on an action on the same ground? No. A res judicata is good

all the world over … A man cannot be forced to go through every country in Europe

with his defence.”

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The then Lord President (Sir Ilay Campbell, Lord Succoth) was more circumspect. In the

same case (Watson v Renton (1791) Bell 8vo Cas 92 at 108) he observed: “If a foreign court

should give a decree ought you to give effect to it? Justice perhaps requires it, but this Court

never does so.”

[2] Much has happened in the law since 1791 and, in particular, much has happened in

the last fifty years to bring Scots law as to the recognition and enforcement of the judgments

of European courts closer to Lord Braxfield’s conception of what it should be. Nevertheless,

remarkable as it may seem, the respective contentions in the present reclaiming motion,

which relates to the attempt to register for enforcement in Scotland a money judgment of the

9B Division of the Court of First Instance of the judicial district of Antwerp dated

24 December 2013, retain at least an echo of Lord Succoth’s competing notions of what, on

one hand the court should do, and, on the other, what the court can do.

Registration of foreign judgments

[3] At common law, recognition and authority for the enforcement of a foreign money

decree could be obtained by raising in the Court of Session an action for “decree conform” to

the decree of the foreign court. This was (and where competent still is) a mechanism

whereby the foreign decree may become indirectly enforceable in Scotland by virtue of the

pronouncement of a decree of the Court of Session in the same terms as the foreign decree.

Armed with the Court of Session decree conform, the party in whose favour the foreign

decree was pronounced may then proceed to do diligence in Scotland.

[4] However, from the nineteenth century onwards a series of statutory measures were

enacted which were aimed at providing a more straightforward and essentially

administrative process for giving direct effect to external judgments where it was

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appropriate to do so. An early example of such a measure is the Judgments Extension Act

1868 (now repealed by the Civil Jurisdiction and Judgments Act 1982) which provided for

the recognition in Scotland of decrees pronounced in other parts of the United Kingdom as

having the same effect as decrees of the Court of Session with a view to their enforcement.

The mechanism by which this was to be achieved was registration in the Books of Council

and Session of a certificate in relation to the relevant external decree in terms of section 2 of

the Act, with power being conferred on the Court of Session by section 7 “to make such Acts

of Sederunt to regulate the practice to be observed in the execution of this Act or in any

matter relating thereto.”

[5] Other provisions followed. They included the Foreign Judgments (Reciprocal

Enforcement) Act 1933. Like the 1868 Act and other analogous statutes the 1933 Act

employed the mechanism of registering the foreign judgment for enforcement. Section 1 of

the 1933 Act provides for extension of the benefit of its terms on a jurisdiction by jurisdiction

basis by Order in Council. It was extended to Belgium in 1936 (S.R & O 1936/1169).

[6] It would appear that registration of any external judgment which is to be enforced

within the jurisdiction is a feature particular to the United Kingdom. This is to be contrasted

with what is described at para 9.127 of Anton Private International Law (3rd edit) as the

procedure more typical of other European states: the issue of an exequatur (“let it be

followed”) or order for execution being attached to the external decree. What Anton

describes as an exequatur may also be referred to as a declaration of enforceability.

The Brussels regime

[7] On 27 September 1968 in Brussels the then six member states of the European

Economic Community entered into the Convention on Jurisdiction and the Enforcement of

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Judgments in Civil and Commercial Matters (the “Brussels Convention”). As the full title

suggests, the Brussels Convention provided for common rules as to jurisdiction in the

domestic courts of the contracting states and common rules for the enforcement in a

contracting state of judgments pronounced by the courts of other contracting states. The

United Kingdom has acceded to the Brussels Convention. Article 54 of the Brussels

Convention provides that it shall apply only to legal proceedings instituted after its coming

into force in both the state of origin and the state of destination. As far as the United

Kingdom and Belgium are concerned the critical date was 1 January 1987.

[8] The Brussels Convention has been subject to amendment by virtue of a Protocol of

1971 and the various Accession Conventions. It recognises the role of registration in the

enforcement of external judgments in the United Kingdom. Article 31 of the Brussels

Convention, as amended, provides:

“A judgment given in a Contracting State and enforceable in that State shall be

enforced in another Contracting State when, on the application of any interested

party, it has been declared enforceable there.

However, in the United Kingdom, such a judgment shall be enforced in England and

Wales, in Scotland, or in Northern Ireland when, on the application of any interested

party, it has been registered for enforcement in that part of the United Kingdom.”

[9] Article 37 of the Brussels Convention provides for the possibility of appeal against

the decision authorising enforcement “in accordance with the rules governing procedure in

contentious matters - … in Scotland, with the Court of Session”.

[10] In terms of section 2 of the Civil Jurisdiction and Judgments Act 1982, as amended by

the Civil Jurisdiction and Judgments Act 1991, the 1968 Convention has the force of law in

the United Kingdom.

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[11] In 2000 the provisions for common rules on jurisdiction and the mutual recognition

of judgments within the European Union were refined by the adoption of Council

Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and

enforcement of judgments in civil and commercial matters (“Brussels I”). Recital (6) explains

its purpose as:

“In order to attain the objective of free movement of judgments in civil and

commercial matters, it is necessary and appropriate that the rules governing

jurisdiction and the recognition and enforcement of judgments be governed by a

Community legal instrument which is binding and directly applicable.”

[12] The United Kingdom has negotiated special treatment in the form of what may be

referred to as “opt-outs” in certain areas of European Union competence. One of these is the

area of freedom, security and justice. However, as is the case with Ireland, the United

Kingdom may opt into any given initiative if it so wishes. As appears from recital (20) of

Brussels I, that is what it did in relation to that measure:

“The United Kingdom and Ireland, in accordance with Article 3 of the Protocol on

the position of the United Kingdom and Ireland annexed to the Treaty on European

Union and to the Treaty establishing the European Community, have given notice of

their wish to take part in the adoption and application of this Regulation.”

[13] Article 38 of Brussels I is in the following terms (which again acknowledge the

significance of registration in the United Kingdom’s domestic arrangements for

enforcement):

“Article 38

A judgment given in a Member State and enforceable in that State shall be

enforced in another Member State when, on the application of any interested party, it

has been declared enforceable there.

However, in the United Kingdom, such a judgment shall be enforced in

England and Wales, in Scotland, or in Northern Ireland when, on the application of

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any interested party, it has been registered for enforcement in that part of the United

Kingdom.”

[14] Article 39 of Brussels I provides that an application under article 39 shall be

submitted to the court or competent authority indicated in the list in Annex II to the

Regulation. For Scotland that is the Court of Session. Article 40 provides that the procedure

for making the application shall be governed by the law of the Member State in which

enforcement is sought. Article 43 provides that the decision on an application for a

declaration of enforceability may be appealed against by either party, on an appeal lodged

within one month of service. Annex III provides that in Scotland the court in which an

Article 43 appeal may be lodged is the Court of Session.

[15] Article 68 of Brussels I provides:

“This Regulation shall, as between Member States, supersede the Brussels

Convention except as regards [certain external territories]”

[16] On 30 October 2007 there was signed at Lugano on behalf of the European

Community the Convention on jurisdiction and the recognition and enforcement of

judgments in civil and commercial matters, between the European Community and the

Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of

Denmark (the “Lugano Convention”). This superseded the Convention signed on

16 September 1988 by the then twelve members of the European Community and the then

six members of the European Free Trade Association with a view to extending the

provisions of the 1968 Convention to the EFTA member states. The provisions of the

Lugano II Convention are closely aligned to those of Brussels I. They came into force for the

European Union on 1 January 2010. In terms of article 66 they do not prejudice the

application by the Member States of the European Community of Brussels I.

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[17] Brussels I has however now been superseded by Parliament and Council Regulation

(EU) 2015/2012 (“Brussels I Recast”). As with Brussels I, the United Kingdom and Ireland

have opted in.

[18] As with its predecessors, Brussels I Recast provides for the recognition of judgments

but with the important difference that it does away with the requirement for an exequatur or

its United Kingdom equivalent, registration.

[19] Brussels I Recast came into force on 10 January 2015. In terms of Article 80 it repeals

Brussels I. Brussels I Recast is however subject to transitional provisions. Article 66 provides

that Brussels I Recast shall only apply to legal proceedings instituted after 10 January 2015

and that Brussels I shall continue to apply to judgments given in legal proceedings instituted

before 10 January 2015.

Giving effect to the Brussels regime in Scotland

Prior to 7 February 2015

[20] In Scotland, prior to 7 February 2015, the procedure whereby a judgment subject to

the Brussels regime was registered for enforcement was provided by part V of chapter 62 of

the Rules of the Court of Session (headed “Recognition and Enforcement of Judgments

under the Civil Jurisdiction and Judgments Act 1982, or under Council Regulation (EC) NO

44/2001 of 22 December 2001 or under the Lugano Convention of 30 October 2007”).

Reflecting the heading of part V, RCS 62.26 (1) was in these terms:

“(1) This Part applies to the recognition and enforcement of a judgment under the

Civil Jurisdiction and Judgments Act 1982, the Lugano Convention or the Council

Regulation.”

RCS 62.26 (2) provided definitions of the various instruments referred to in RCS 62.26 (1).

The expression “the Council Regulation” meant Brussels I.

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[21] RCS 62.28 provided:

Enforcement of judgments, authentic instruments or court settlements from

another Contracting State or State bound by the Lugano Convention

62.28.- (1) An application under-

(a) section 4 of, and Article 31 (enforcement of judgment from another

Contracting State) or Article 50 (enforcement of authentic instrument or court

settlement from another Contracting State) of the Convention in Schedule 1

to, the Act of 1982; or

(b) Article 38 (enforcement of judgment from Member State), Article 57

(enforcement of authentic instrument from another Member State) or Article

58 (enforcement of court settlement from another Member State) of the

Council Regulation; or

Lugano Convention), Article 57 (enforcement of authentic instrument from

another State bound by the Lugano Convention) or Article 58 (enforcement of

court settlement from another State bound by the Lugano Convention.

shall be made by petition in Form 62.28.”

Form 62.28 provided for an abbreviated style of petition. The essentially administrative

nature of the application for recognition and enforcement of a decree to which one of the

three measures listed in RCS 62 (the 1982 Act, Brussels I and the Lugano Convention)

applied, was underlined by the disapplication (by RCS 62.1 and RCS 62.27) of certain Rules

relating to petition procedure: RCS 4.1(1), 14.4, 14.5, 14.6, 14.7 and 14.9. RCS 62.30 provided

that on being satisfied that the petition complied with the relevant measure listed in RCS 62,

the court should grant warrant for registration, warrant for the execution of protective

measures and, where necessary, granting decree in accordance with Scots law. Registration

of the external judgment was to be in the register kept for that purpose in the Petition

Department and in the register of judgments of the Books of Council and Session

(RCS 62.32).

[22] It will be recollected that article 37 of the Brussels Convention and article 43 of

Brussels I (and also article 43 of the Lugano Convention) require that there should be an

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appeal available against a declaration of enforceability within one month of service.

Provision for that was made by RCS 62.34 through the mechanism of an appeal to the Lord

Ordinary by way of motion.

Subsequent to 7 February 2015

[23] What one sees in the text of part V of chapter 62 of the Rules of the Court of Session

as it was prior to 7 February 2015 is provision for a very simple procedure for the

enforcement of the external judgments to which the 1982 Act, Brussels I and the Lugano

Convention respectively applied. The Rules accurately reflected what these three measures

require: a mechanism for securing the immediate declaration of enforceability, or in the

United Kingdom the registration, of an external judgment, with the availability of appeal

within a month. This symmetry was disrupted by the amendment of the Rules of Court by

the Act of Sederunt (Rules of the Court of Session Amendment) (Regulation (EU) SI

1215/2012) 2015 which came into effect on 7 February 2015.

[24] As the title to the Act of Sederunt would suggest, its purpose was to bring the Rules

of Court into conformity with the Brussels regime as it had been altered by the coming into

force on 10 January 2015 of Brussels I Recast. In this it was not wholly successful.

[25] Recital (1) to Brussels I Recast narrates that whereas the operation of the Brussels I

had in general been found to be satisfactory, it was desirable in order to further facilitate the

free circulation of judgments and to further enhance access to justice, that its provisions be

improved. Accordingly, since a number of amendments were to be made to Brussels I it

should, in the interests of clarity be recast. As we have already mentioned above, among the

amendments was the abolition of the exequatur and its United Kingdom equivalent,

registration. Article 36 of Brussels I Recast provides that a judgment given in a Member

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State shall be recognised in the other Member States without any special procedure being

required (albeit that Article 36.2 allows an interested party to apply for a decision that there

are no grounds of refusal of recognition). Article 39 provides that a judgment given in a

Member State which is enforceable in that Member State shall be enforceable in the other

Member States without any declaration of enforceability being required, and Article 40

provides that an enforceable judgment shall carry with it by operation of law the power to

proceed to any protective measures which exist under the Member State addressed. Thus,

the party wishing to enforce an external judgment in a Member State can go ahead and do so

with nothing by way of preliminary. Enforcement remains within the control of the court

but rather than the party wishing to enforce an external judgment requiring to make an

application for a declaration of enforceability or for registration, as under Brussels I, under

Brussels I Recast it is the party who wishes recognition or enforcement to be refused who

must take the initiative by making an application (Articles 45 to 51).

[26] A further amendment to the Brussels regime is that effected by Article 54 of

Brussels I Recast, which includes:

“If a judgment contains a measure or an order which is not known in the law of the

Member State addressed, that measure or order shall, to the extent possible, be

adapted to a measure or an order known in the law of that Member State which has

equivalent effects attached to it and which pursues similar aims and interests.”

The remedy whereby a measure or order may be adapted in this way may be referred to as

an “adaption order”.

[27] When one turns to the Act of Sederunt one can see provision being made to amend

the Rules of Court in order to accommodate the changes brought in by Brussels I Recast. A

new part VA is inserted into chapter 62 of the Rules (RCS 62.42A to 62.42C). Part VA is

headed: “Recognition and Enforcement of Judgments under Regulation (EU) No. 1215/2012

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of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the

Recognition and Enforcement of Judgments in Civil Matters (Recast)”. Part VA makes

provision for the various new sorts of application required under Brussels I Recast including

those required by Article 36.2 (no grounds of refusal of recognition); Article 45.1 (refusal of

recognition of judgment); Article 46 (refusal of enforcement of judgment); and Article 54

(adaption orders). The Act of Sederunt also amends the provisions of part V of chapter 62.

Among these amendments is a change to the heading of the part. It now reads:

“Recognition and Enforcement of Judgments under the Civil Jurisdiction and Judgments Act

1982, or under the Lugano Convention of 30 October 2007”. What is foreshadowed in the

heading is reflected in the other amendments to part V: the references to Brussels I which

had appeared in the previous text are excised. Thus, RCS 62.28(1) now reads:

“62.28 (1) An application under-

(a) section 4 of, and Article 31 (enforcement of judgment from another

Contracting State) or Article 50 (enforcement of authentic instrument or court

settlement from another Contracting State) of the Convention in Schedule 1

to, the Act of 1982; or

Lugano Convention), Article 57 (enforcement of authentic instrument from

another State bound by the Lugano Convention) or Article 58 (enforcement of

court settlement from another State bound by the Lugano Convention;

shall be made by petition in Form 62.28.”

[28] Why we say that the Act of Sederunt was not wholly successful in bringing

chapter 62 into conformity with the Brussels regime as it has been altered, is that it addresses

only judgments to which 1982 Act, or the Lugano Convention or Brussels I Recast apply.

There is another category of external judgments falling under the Brussels regime for which

it makes no provision. As already mentioned, article 66 of Brussels I Recast is a transitional

provision which provides that Brussels I Recast shall apply only to legal proceedings

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instituted on or after 10 January 2015. Notwithstanding the repeal of Brussels I by Brussels I

Recast, Brussels I shall continue to apply to judgments given in legal proceedings instituted

before 10 January 2015. The draftsman of the Act of Sederunt of 2015 does not appear to

have noticed this and its consequence: that there will be transitional cases, that is instances

of external judgments which are enforceable in Scotland by virtue of Article 38 of Brussels I

and which fall to be enforced by the mechanism of registration subsequent to 10 January

2015. If the draftsman did notice the possibility of transitional cases, he did not make

provision for that possibility in his reformulation of chapter 62 of the Rules. Parties accepted

that this was an error.

[29] The judgment of the 9B Division of the Court of First Instance of the judicial district

of Antwerp dated 24 December 2013 (“the Judgment”) which the now reclaimers are seeking

to enforce is a transitional case.

Procedure in the Outer House in the present case

[30] The reclaimers presented a petition for registration of the Judgment which, although

typed on a printed pro forma headed “Rules of the Court of Session 1994 Rule 14.4(1)”,

followed Form 62.28, that is the “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 Council Regulation”. The petition was presented to Lord Boyd of

Duncansby who pronounced an interlocutor dated 16 February 2017 in, inter alia, the

following terms:

“The Lord Ordinary having considered the petition and proceedings, and being

satisfied that the petition complies with the requirements of Article 38 of [Brussels I]

in terms of Rule of Court 62.28, Grants warrant to the Keeper of Registers of Scotland

to register [a] certified copy of [the Judgment] under the Civil Jurisdiction and

Judgments Act 1982; Appoints the petitioners to serve a copy of this notice of this

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interlocutor and form 62.33 on Claire Ramsay Giles residing at [the respondent’s

address] and allows her if so advised to apply to the Court of Session …within one

month after such service to appeal against the grant of warrant of said registration:

meantime Orders that the petitioners may not proceed to execution of the said

judgment when registered until the expiry of lodging such an appeal or its disposal.

Finds the said Claire Ramsay Giles liable to the petitioners in the expenses of the

petition together with interest at the rate of eight per cent a year from the date of

decree in accordance with the Civil Jurisdiction and Judgements Order 2001

Schedule 1 paragraph 5 (2).”

[31] The respondent appealed, as she was entitled to do in terms of Article 43 of Brussels I

(albeit that while RCS 62.34 had made provision for an appeal under article 43 prior to

7 February 2015, on amendment by the Act of Sederunt, the reference in the text of RCS

62.34 to Article 43 of the Brussels I Regulation was excised). On 27 April 2017 the Lord

Ordinary (Lord Woolman), having heard counsel “at the Procedural Hearing in terms of

Rule of Court 62.28” appointed the appeal to a substantive hearing. On 16 June 2017, on the

unopposed motion of the petitioners, “in terms of Rule of Court 62.29(1)” Lord Woolman

granted warrant for protective measures.

[32] The substantive hearing called before Lord Brailsford on 29 September 2017. Having

heard counsel, he made avizandum. On 20 October 2017 Lord Brailsford pronounced the

following interlocutor:

“The Lord Ordinary, having resumed consideration of the appeal of the respondent

made in terms of the Rule of Court 62.34, and there now being no mechanism within

the Rules of Court of Session for the registration of [the Judgement], grants the

appeal, and in terms of Rule of Court 62.39, recalls the warrant granted in the Court

of Session on 16 February 2017 for registration of the said judgment; orders

cancellation of the registration of said judgement; authorises the Deputy Principal

Clerk of Session to issue to the Keeper of the Registers a certificate of this order, and

decerns.”

[33] In his Opinion of 20 October 2017 Lord Brailsford explains that without suggesting

that there had been any intention to prevent decrees from other Member States being

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registered there was a consensus between counsel that the Act of Sederunt of 2015 had

created a lacuna in the law. Counsel for the petitioners had submitted that there were two

means whereby the obvious intention of Brussels I could be implemented: first, by

recognising that the Regulation by virtue of its direct effect conferred a jurisdiction on the

court; second, by resorting to the court’s inherent power to “discharge its responsibilities”,

as recognised in Hepburn v Royal Alexandra Hospital NHS Trust 2011 SC 20. Counsel for the

respondent, on the other hand, had submitted that the Act of Sederunt had expressly

repealed the application of Brussels I. The present application was therefore incompetent. It

did not follow that the Judgment could not be enforced. The common law remedy of decree

conform could still be relied on, as perhaps could a petition to the nobile officium. The

doctrine of direct effect did not extend to interference with Member States’ procedural

provisions for implementation: Azienda Agricola Monte Arcosu Srl v Regione Autonoma Della

Sardegna [2002] 2 CMLR 14 (in the Opinion of the Advocate General at paragraphs A6 and

A7, and in the judgment of the court at paragraphs 26-28), and ÖBB-Personenverkehr AG v

Schienen-Control Kommission and others [2014] 1 CMLR 51 (Opinion of the Court paragraphs

54-60). The inherent jurisdiction of the court had to be exercised sparingly and with care: cf

Taylor Clark Leisure plc v Commissioners for HM Revenue and Customs 2015 SC 595, the Lord

Justice Clerk (Carloway) at paragraph [30].

[34] Lord Brailsford considered that the circumstances in which the petition was

presented to the court were highly unusual. While he could think of no plausible reason

why the Rule of Court had been amended in this way and while the position was

unsatisfactory, he did not feel able to conclude that there had been an error. The implication

of this was that there was no mechanism in the Rules of Court for registration of a decree

such as the one in the present petition. Lord Brailsford accepted that Brussels I had direct

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effect but one had to have regard to Article 40 which provided that the procedure for

making the application shall be governed by the law of the Member State in which

enforcement is sought. While the court had some inherent power to regulate matters of

practice, the scope to interfere or innovate in relation to procedure controlled by the Rules of

Court was more limited. He therefore did not feel able to rely on the inherent power in the

way that had been suggested by counsel. In the result it may be that the petitioners would

have no option but to seek decree conform.

Submissions

[35] Before this court Mr Dewar QC, on behalf the petitioners and reclaimers and

Mr Reid, on behalf of the respondent, reiterated the arguments which had been made to

Lord Brailsford. As we have already noted, counsel were agreed that there appeared to

have been an error in the drafting of the Act of Sederunt which had had the result that there

was no specific provision in the Rules of Court for applications for the registration of

judgments in transitional cases. They differed as to what was the consequence of this. For

the reclaimers Mr Dewar submitted that Lord Brailsford had erred in holding that Brussels I

did not have direct effect. The only issue was whether the procedural rules of Scots law

were apt to provide for the registration of the Judgment. That should be determined in

favour of the reclaimers. Mr Dewar referred to what had been said by Lord President

Emslie in Hall v Associated Newspapers 1979 SC 1 at 9. The court had an inherent power to

entertain an application (such as the present) where (i) an exigency has arisen as a result of a

lacuna in the procedural rules caused by an apparent drafting error, and (ii) to decline to do

so would amount to a breach of the United Kingdom’s international obligations. Such

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exercise of the court’s inherent jurisdiction would involve no significant innovation on

established procedure.

[36] Mr Reid reminded the court of the terms of the petition. It purported to proceed

under RCS 62.28, whereas parties were agreed that as at the date of presentation of the

petition RCS 62.28 did not provide for an application to register a decree such as the

Judgment; the petitioners had chosen to use a procedure which is no longer available. The

dispute between the parties was not as to whether there was a procedure which could be

used but whether this particular procedure could be used. Lord Brailsford had been correct

to find that the relevant provisions of Brussels I did not have direct effect but a submission

based on direct effect passed over the question of whether the procedure which the

petitioners had adopted was the appropriate procedure. As far as the argument based on

the inherent power of the court was concerned, the purpose of the inherent power was to

deal with an incidental question arising in what were competent proceedings. The view

expressed by Lord Carloway at para [54] of Hepburn v Royal Alexandra Hospital NHS Trust

had been endorsed by the court in Macleod’s Legal Representatives v Highland Health Board

2016 SC 647 at para [160]. Mr Reid submitted that the reclaiming motion should be refused.

Decision

[37] There is no dispute that the decree of a Belgian court of competent jurisdiction, of

which the Judgment is an example, is enforceable in Scotland. Since 1936 the basis of such

enforceability has been found in legislation: initially the 1933 Act, then the 1982 Act, more

recently Brussels I and now Brussels I Recast. Given that the Judgment is a transitional case,

as that expression is to be understood by reference to Brussels I Recast, what makes it

enforceable in Scotland is Brussels I.

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[38] Mr Reid argued, rather faintly, that Brussels I did not have direct effect and

therefore, of itself, could not provide for the enforcement of the decree of a Member State in

Scotland. We cannot agree. Mr Reid did not discuss the potentially extensive ramifications

of his argument were it to be accepted but in fairness to him he was not pressed to do so by

the court. For present purposes it suffices to say that, in our opinion, the authorities to which

Mr Reid referred (Monte Arcosu and ÖBB) do not support his argument. Subject to

exceptions which arise from the structure of a particular regulation, regulations generally

have immediate and direct effect; consistent with that, as can be seen from its recital (6),

quoted above, Brussels I purports to have direct effect. Both the general rule and the

exception on which Mr Reid relied are not controversial. They appear in para 26 of the

Opinion of the European Court of Justice in Monte Arcosu:

“26 …although, by virtue of the very nature of regulations and of their function in

the system of sources of Community law, the provisions of those regulations

generally have immediate effect in the national legal systems without its being

necessary for the national authorities to adopt measures of application, some of their

provisions may nonetheless necessitate, for their implementation, the adoption of

measures of application by the Member States.”

[39] Thus, in Monte Arcosu the regulation under consideration provided for investment

aid to “farmers practising farming as their main occupation”. The regulation specifically

provided that “Member States shall define what is meant by this …expression”. A law

applicable to Sardinia provided for the creation of a register of farmers practising farming as

their main occupation but, at the relevant date, the criteria for the management of the

which a company could be granted the status of a farmer practising farming as its main

occupation. A limited company, Monte Arcosu, brought proceedings in order to be entered

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in the register. The court in Cagliari made a reference to the ECJ for a preliminary ruling on

two questions:

“(1) Despite the silence of the Italian legislature, is it in any event possible to

apply the Community provisions in question to persons other than natural persons,

and in particular to companies having legal personality?

(2) If an affirmative answer is given to the first question, what are the necessary

and sufficient conditions for conferring the status of farmers practising farming as

their main occupation on persons other than natural persons and, in particular, on

companies with legal personality?”

By way of answer the CJEU explained that the relevant provisions of the regulation could

not be relied on before the national court given that in terms of the regulation it was for the

Member States to define what, in the particular Member State, was meant by “farmers

practising farming as their main occupation”. The Member States had been given a

discretion in respect of the implementation of the relevant provisions and therefore it could

not be held that individuals derived rights from the provisions in the absence of measures of

application having been adopted by the Member State in question.

[40] ÖBB concerned Article 17 of Regulation 1371/2007 which sets out the minimum

compensation, determined by reference to ticket prices, which railway passengers are

entitled to claim in the event of delay. The Austrian railway regulator formed the view that

the terms of ticket price compensation applied by a railway undertaking did not comply

with Article 17 and ordered the undertaking to amend them, in particular by removing

certain exclusion provisions. The undertaking brought proceedings in the local

administrative court which referred two questions to the CJEU, the second of which asked

whether a national body responsible for the enforcement of the regulation might, in the

absence of any national provision to that effect, impose upon a railway undertaking whose

compensation terms did not meet the Article 17 criteria the specific content of these terms.

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The CJEU reiterated the general rule that the provisions of a regulation have immediate

effect in national systems without the necessity for national authorities to adopt measures of

application. Nevertheless some of the provisions of a regulation may necessitate for their

implementation the adoption of measures of application. In the present case Article 30(1) of

the regulation did provide that the national body responsible for the enforcement of the

regulation must see that “the necessary passengers’ rights …be respected” but it was

nevertheless clear that the specific measures which the national body must be able to adopt

had not been identified by the EU legislature. It followed from that that Article 30(1)

required Member States to adopt measures defining the powers available to bodies such as

the Austrian railway regulator with a view to them doing what was necessary to implement

the regulation. Therefore, in the absence of such measures having been adopted by Austria,

Article 30(1) could not be interpreted as constituting a legal basis authorising national bodies

to impose on railway undertakings the specific content of their contractual terms relating to

the circumstances in which they are to pay compensation.

[41] The relevant provisions of Brussels I are not similar to the provisions in the

regulations under consideration in Monte Arcosu and ÖBB. In Monte Arcosu and ÖBB it was

necessary for Member States to take action in order to give necessary content to what was

provided for by the regulation. That is not the case with Brussels I and, in particular, with

what is the relevant provision for present purposes, that is Article 38. Article 38 declares

that a judgment given in a Member State “shall be enforced in another Member State”. True,

Article 38(1) goes on to state: “when, on the application of any interested party, it has been

declared enforceable there”. That means that while the judgment is, as a matter of EU law,

enforceable, it can only be enforced within a particular Member State after an application

has been made to obtain the appropriate domestic stamp of approval: an exequatur being

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attached to the judgment or, in the United Kingdom, registration of the judgment. In terms

of Article 39 that application must be to a court or other competent authority indicated in the

list in Annex II to the Regulation. Other than in the case of a maintenance judgment, where

the place of domicile of the party against whom enforcement is sought is Scotland, the court

to which application must be made is the Court of Session. In contrast to the positions in

Monte Arcosu and ÖBB, nowhere in the Brussels I scheme is there provision for the

enforceability of a judgment being dependent on a measure implemented by the Member

State in which enforcement is sought. Rather, in terms of Article 41, once the formalities

specified in Article 53 have been completed, the relevant court or other competent authority

shall declare the judgment enforceable. It is competent to appeal a declaration that the

judgment is enforceable, with the possibility of a single further appeal on a point of law, but,

significantly, provision for that and what otherwise follows from a declaration of

enforceability are to be found in the Regulation. The role for domestic law is limited. In

terms of Article 40, the procedure for making the application for an exequatur or registration

shall be governed by the law of the Member State but that is it; it is a matter of procedure

only. Putting it slightly differently, Member States have a choice as to precisely how an

application to the identified court or other authority is made, but they do not have a choice

as to whether an application can be made. Article 40 does not in any way trench on the

provision in Article 38(1) that a judgment shall be enforced. Thus, it is not the case that by

neglecting to have a procedure or by inadvertently abolishing what had been the procedure

a Member State can thwart the Brussels regime. Of course, that consideration only comes

into play in the present case if a situation has arisen where the Court of Session, in exercise

of its rule-making function, has indeed neglected to have or has abolished the only possible

procedure for the making of an Article 39 application in transitional cases.

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[42] At paragraph [9] of his Opinion the Lord Ordinary records his conclusion that,

although he could not think of any plausible reason as to why this should be so, there was

no mechanism in the Rules of Court for registration of a decree in a transitional case. Before

this court, both parties agreed with this “unsatisfactory position”, as the Lord Ordinary had

described it. Where parties differed was where, outside of the Rules of Court, a solution was

to be found. For the petitioners it lay in an exercise of the court’s inherent jurisdiction. For

the respondent there was no alternative but to raise an action for decree conform. With

great respect we cannot agree with any of this.

[43] What can be disposed of immediately is the respondent’s suggestion that it would be

open to the petitioners to bring an action for decree conform. As far as judgments of Belgian

courts of competent jurisdiction are concerned, that remedy has been superseded since 1936,

first by the 1933 Act and latterly by the Brussels regime. It is not a competent means of

proceeding. However, while entirely satisfied that the draftsman of the 2015 Act of

Sederunt made an error which in due course perhaps should be corrected, we do not see it

as having given rise to quite the problem identified by the Lord Ordinary.

[44] Chapter 14 of the Rules of Court is concerned with petitions. As is explained in the

annotations to RCS 14.1, a petition is an ex parte application addressed to the Lords of

Council and Session and seeks their aid for some purpose or other, by exercising some

statutory jurisdiction or the nobile officium in a variety of matters: Tomkins v Cohen 1951 SC 22

at 23. Quoting from the Report of the Royal Commission on the Court of Session 1927 (Cmd.

2801) pp 49-50, the authors of the annotation continue:

“… the object of a petition … is to obtain from the administrative jurisdiction of the

court power to do something or to require something to be done, which it is right

and proper should be done, but which the petitioner has no legal right to do or to

require apart from judicial authority.”

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Consistent with its administrative function petition procedure is summary, that is relatively

informal, flexible and (intended to be) swift. It can be resorted to whenever the authority of

the court is required “to do something or to require something to be done” to use the

language of the Royal Commission. RCS 14.2 lists certain specific sorts of application that

can be made by petition in the Outer House but it includes, at paragraph (h), “a petition or

other application under these Rules or any other enactment or rule of law”. Thus, a petition

is exactly the vehicle for the sort of requests of which an application as is provided for by

Article 39 of Brussels I is an example.

[45] Chapter 14 goes on to set out a procedure which can apply to any petition. However,

having made provision for the generality of petitions in chapter 14, the Rules, in their later

chapters, make special provision for some, but not all, sorts of application which can be

made by petition. Chapter 57, for example, is concerned with the admission of advocates,

chapter 58 with judicial review, chapter 60 with suspension and interdict, and chapter 61

with judicial factors. Other chapters are concerned with other matters. Chapter 62 is headed

“Recognition, Registration and Enforcement of Foreign Judgments, etc.” In common with

the other chapters of the Rules which make special provision for certain sorts of application,

chapter 62 is structured as an exception to the generality of chapter 14; some rules are

disapplied and particularly apposite requirements are added. As has already been noticed,

prior to 7 February 2015 chapter 62 made special provision for applications to register

judgments to which Brussels I applied. However, while special provision for applications

for registration of judgments to which the 1982 Act and the Lugano Convention continued to

be made under part V of chapter 62 and special provision was made under part VA for the

various applications required by Brussels I Recast, the effect of the amendments to the Rules

of Court effected by the Act of Sederunt of 2015 is that there is no longer any special

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provision made for the transitional cases regulated by Brussels I. Given the structure of the

Rules, that means that an application of which the present case is an example falls to be

made by reference to the general provisions as to applications by way of petition which are

largely to be found in chapter 14; if an exception no longer applies then one reverts to the

generality.

[46] Now, the precise terms of the petition and the interlocutors in the petition process do

not explicitly recognise the basis upon which this application can still competently be made.

We consider that this does not matter. The purpose of the petition is plain. It is a competent

purpose. Given the flexibility of the petition process it may be appropriate to borrow or

mirror procedural steps from elsewhere than chapter 14. Essentially that is what the

respondent did in making her appeal “in terms of Rule of Court 62.34” and the Lord

Ordinary did in granting that appeal and, “in terms of Rule of Court 62.39”, cancelling

registration of the Judgment.

[47] The respondent has no substantive objection to the registration of the Judgment for

enforcement in Scotland. Her objection was limited to the procedure adopted in making the

necessary application for registration. We consider that objection to be unsound for the

reasons we have given. We shall accordingly allow the reclaiming motion. We shall recall

the interlocutor of the Lord Ordinary of 20 October 2017. We shall refuse the respondent’s

appeal against registration of the Judgment. We shall reserve all questions of expenses.