What Impact Will Brexit Have On EU Citation & Enforcement?
March 2017

The rules for service of court documents & the enforcement of court orders differ around the globe. Currently, the service requirements for Scottish firms fall in to four key categories namely:-

  • within the UK
  • within the EU
  • in a country that is a signatory of The Hague Convention
  • and those out with these three areas mentioned

With ‘Brexit’ proceedings now underway the service of court documents & the enforcement of court orders by UK firms to those in Europe and vice versa may be set to change.

Service of Court Documents in the EU Post-Brexit

Currently there are specific rules for the transmission and service of court and other judicial documents between countries in the EU under the Council Regulation 1393/2007. For now these apply to the transmission and service of documents in Scotland from an EU court or vice versa.

The current regulation provides for different ways of transmitting and serving documents: transmission through transmitting and receiving agencies; transmission by consular or diplomatic channels; service by postal services (where consented to by central authority); and direct service.

Authorised transmitting agencies are competent for the transmission of judicial or extrajudicial documents to be served in another member state. Receiving agencies are competent for the receipt of judicial or extrajudicial documents from another member state. The central body’s responsibility lies in supplying information to the transmitting agencies and seeking solutions to any difficulties which may arise during transmission of documents for service. As service is not dictated by the central body, the country’s equivalent of Sheriff Officers will then effect service by the methods competent in that country.

This EU law which defines the requirements of transmission and service in Europe will most likely become defunct for UK firms serving court documents in the EU at some point post-Brexit. As all EU members are signatories of The Hague Convention it is likely the service of court documents from the UK to those in countries that remain in the EU will mirror that of the current route for Hague Convention signatories. The Hague Convention deals primarily with the transmission of documents; it does not address or comprise substantive rules relating to the actual service process. Under the main channel of transmission provided for by the Convention, the authority or judicial officer competent under the law of the requesting State transmits the document to be served to the Central Authority of the requested State. The Central Authority then execute the request for service or cause it to be executed either by informal delivery to the addressee who accepts it voluntarily, by a method provided for under the law of the requested State, or by a particular method requested by the applicant, unless it is incompatible with the law of the requested State.

Enforcement of Court Orders in the EU Post-Brexit

The post-Brexit changes for the enforcement of court orders are likely to follow a similar path to the changes in transmission and service of court documents with the standard European decision model for enforcement practices likely becoming defunct. For the most part when a court order is to be enforced in Europe by a UK firm EC Regulations No 805/2004 or 1896/2006 currently provide methods for the appropriate enforcement orders to be obtained where a claim has been uncontested, which in Scotland will generally apply to decrees granted in absence or undefended actions. For contested claims an application would be issued to the Court which granted the decree for a certificate of judgment. Once this has been issued the enforcement procedure is then determined by the country in which the enforcement is to proceed.

When an uncontested case’s court order is being enforced in Scotland from another EU country an application is to be made to the court that issued the uncontested judgement to receive a European Enforcement/Payment Order. Once this has been obtained, in order for enforcement to proceed it must be registered with the Registers of Scotland.

The above regulations do not apply to certain types of actions and if you need any guidance on this whilst Britain remain in the EU we are able to offer information and advice on these matters.

The European decision model discussed above will most likely disappear and be replaced by The Hague Convention’s rules relating to the enforcement or court orders and judicial decisions. The current convention on civil enforcement is from 1 February 1971 and is available via the HCCH site.

There are clear guidelines on when a party is entitled to enforce their decision in another country that is a signatory to the Hague Convention. On a practical level the pursuer or their agent will need to furnish a full and authenticated copy of the court’s decision; where un-contested they will also need to supply the documents proving the action has been served on the defendant; that the decision is not subject to review within the state of origin; and lastly that certified translations are supplied for all documentation. This does provide a significantly higher burden of administration on the pursuer in order to be able to enforce their claim but is a well-established long standing process.