BVBA BVBA, PETITION OF v CLAIRE GILES [2017] ScotCS CSOH_131 (20 October 2017)

BVBA BVBA, PETITION OF v CLAIRE GILES [2017] ScotCS CSOH_131 (20 October 2017)

The court held that, following the repeal of Rule 62.28, there is no procedural mechanism in the Rules of Court for registration of a foreign judgment under Regulation (EC) 44/2001. The Regulation does not have direct effect to override the absence of national procedural rules, and the court's inherent jurisdiction cannot be used to create a procedure where the rules have been expressly repealed. Therefore, the application for registration is incompetent.

Citation
[2017] ScotCS CSOH_131
Parties
Petitioner: Drika BVBA; Petitioner: Roger Van Craen; Petitioner: NV Malu; Respondent: Claire Giles
Jurisdiction
Scotland
Judgment Date
20 October 2017
Procedural Posture
Petition for Registration of Foreign Judgment / Appeal Against Warrant for Registration
Outcome
appeal allowed
Legal Topics
Registration of Foreign Judgments, Jurisdiction, Enforcement of EU Judgments, Inherent Jurisdiction, Procedural Lacunae
Civil Procedure Private International Law Registration of Foreign Judgments Jurisdiction Enforcement of EU Judgments Inherent Jurisdiction Procedural Lacunae

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Parties

Drika BVBA

Petitioner

Roger Van Craen

Petitioner

NV Malu

Petitioner

Claire Giles

Respondent

Procedural Posture

Petition for Registration of Foreign Judgment / Appeal Against Warrant for Registration

Legal Issues

  1. 1 Whether the Court of Session has jurisdiction to register a Belgian judgment under Regulation (EC) 44/2001 after repeal of Rule 62.28 of the Rules of Court of Session
  2. 2 Whether Regulation (EC) 44/2001 has direct effect to confer jurisdiction for registration absent procedural rules
  3. 3 Whether the court's inherent jurisdiction can be used to register the judgment

Ratio Decidendi

The court held that, following the repeal of Rule 62.28, there is no procedural mechanism in the Rules of Court for registration of a foreign judgment under Regulation (EC) 44/2001. The Regulation does not have direct effect to override the absence of national procedural rules, and the court's inherent jurisdiction cannot be used to create a procedure where the rules have been expressly repealed. Therefore, the application for registration is incompetent.

Court Disposition

appeal allowed

Orders

  • Recall the warrant for registration.
  • Order cancellation of the registration of the judgment.