S.I. No. 3/2006 - Rules of the Superior Courts (European Enforcement Orders) 2006
Rules of the Superior Courts (European Enforcement Orders) 2006 | ||
We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act 1936 , section 67, and reconstituted pursuant to the provisions of the Courts of Justice Act 1953 , section 15, by virtue of the powers conferred upon us by the Courts of Justice Act 1924 , section 36, and the Courts of Justice Act 1936 , section 68 (as applied by the Courts (Supplemental Provisions) Act, 1961 section 48), and the Courts (Supplemental Provisions) Act 1961 , section 14, and of all other powers enabling us in this behalf, do hereby make the following Rules of Court. | ||
Dated this 14th day of December, 2005. | ||
Joseph Finnegan | ||
Richard Johnson | ||
Lyndon MacCann | ||
Tony Hunt | ||
Patrick O'Connor | ||
Matthew Feely | ||
Noel Rubotham | ||
I concur in the making of the following Rules of Court. | ||
Dated this 10th day of January, 2006. | ||
MICHAEL MCDOWELL | ||
Minister for Justice, Equality and Law Reform | ||
Rules of the Superior Courts (European Enforcement Orders) 2006 1. The Rules of the Superior Courts are hereby amended by the insertion immediately following Order 42A thereof, of the following: | ||
“Order 42B | ||
European Enforcement Orders | ||
1. In this Order:- | ||
“Regulation No. 805/2004” means Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, OJ L 143/15 of 30 April 2004; | ||
“Regulation No. 1869/2005” means Commission Regulation (EC) No 1869/2005 replacing the Annexes to Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, OJ L 300/6 of 16 November 2005; | ||
“the 2005 Regulations” means the European Communities (European Enforcement Order) Regulations 2005 ( S.I. No. 648 of 2005 ); | ||
“domestic judgment” means any | ||
(a) judgment of the High Court for any sum of money or order of the High Court requiring payment of any sum of money (including a judgment given or order made by consent or a settlement made a rule of court), or | ||
(b) judgment of the Supreme Court for any sum of money or affirming, whether having varied the same or not, a judgment of the High Court for any sum of money (including a judgment given or order made by consent or a settlement made a rule of court), or | ||
(c) judgment entered in the Central Office pursuant to these Rules or on foot of any order for any sum of money, | ||
to which Regulation No. 805/2004 applies. | ||
2. Subject to Regulation No. 805/2004, the provisions of Orders 42, 45 and 46 of these Rules, insofar as they apply to a domestic judgment, shall apply to a judgment which has been certified as a European Enforcement Order in the Member State of origin and to which Regulation 7 of the 2005 Regulations applies, and any reference in any of the said Orders 42, 45 and 46 to a “judgment” shall, where the context so admits, include a reference to such a judgment which has been so certified and to which the aforementioned provision of the 2005 Regulations applies. | ||
3. Subject to Regulation No. 805/2004, the provisions of Orders 42, 45 and 46 of these Rules, insofar as they apply to a domestic judgment, shall, where appropriate and with such modifications as may be necessary, apply to a court settlement referred to in Article 24 of Regulation No. 805/2004 or an authentic instrument which has been certified as a European Enforcement Order in the Member State of origin and to which Regulation 7 of the 2005 Regulations applies, and any reference in any of the said Orders 42, 45 and 46 to a “judgment” shall, where the context so admits, include a reference to such a court settlement or authentic instrument which has been so certified and to which the aforementioned provision of the 2005 Regulations applies. | ||
4. (1) Where a domestic judgment has been given or made by a Judge of the High Court, an application to certify that domestic judgment as a European Enforcement Order may be made ex parte to the High Court at the hearing at which that domestic judgment is given or made, or if not made at that hearing, may be made ex parte in accordance with sub-rule (2) of this rule. | ||
(2) In the case of any domestic judgment of the High Court other than a domestic judgment certified as a European Enforcement Order at the hearing in accordance with sub-rule (1) of this rule, any application to certify that domestic judgment as a European Enforcement Order shall be made ex parte to the Master. | ||
(3) Where a domestic judgment has been given or made by the Supreme Court, any application to certify that domestic judgment as a European Enforcement Order shall be made ex parte to that Court. | ||
5. (1) An application to certify a domestic judgment as a European Enforcement Order shall, unless the Master, the High Court or the Supreme Court (as the case may be) otherwise directs or permits, be grounded upon an affidavit sworn by or on behalf of the moving party in the Form No. 1 in Appendix F, Part IV or incorporating the matters in paragraphs 2 to 5 of that Form. | ||
(2) A certificate issued on foot of an application pursuant to Article 6(1) of Regulation No. 805/2004 shall be in the form in Annex I to Regulation No. 1869/2005. | ||
6. (1) Where a judgment is given or order or ruling is made that a domestic judgment which has been certified as a European Enforcement Order has ceased to be enforceable or its enforceability is or has been suspended or limited, an application under Article 6(2) of Regulation No. 805/2004 for the issue of a certificate indicating the lack or limitation of enforceability of that domestic judgment may be made by either party to the proceedings in which the domestic judgment was given ex parte to the court at the hearing at which the later judgment is given or order or ruling is made. | ||
(2) If not made at the hearing referred to in sub-rule (1), an application to the High Court or (where the Supreme Court is the court of origin) to the Supreme Court under Article 6(2) of Regulation No. 805/2004 for the issue of a certificate indicating the lack or limitation of enforceability of a domestic judgment may be made in accordance with rule 8. | ||
(3) A certificate issued on foot of an application pursuant to Article 6(2) of Regulation No. 805/2004 shall be in the form in Annex IV to Regulation No. 1869/2005. | ||
7. (1) Where, on any appeal to a Judge of the High Court or to the Supreme Court, a judgment is given or order, ruling or decision is made in respect of a domestic judgment which has been certified as a European Enforcement Order, an application under Article 6(3) of Regulation No. 805/2004 for the issue of a replacement certificate may be made by either party to the said appeal ex parte to the High Court or Supreme Court (as the case may be) at the hearing of the said appeal, or on the delivery of the judgment on the said appeal. | ||
(2) If not made on the occasion referred to in sub-rule (1), an application under Article 6(3) of Regulation No. 805/2004 for the issue of a replacement certificate may be made in accordance with rule 8. | ||
(3) A replacement certificate issued on foot of an application pursuant to Article 6(3) of Regulation No. 805/2004 shall be in the form in Annex V to Regulation No. 1869/2005. | ||
8. Unless made in accordance with rule 6(1) or (as the case may be) rule 7(1) of this Order, an application under Article 6(2) of Regulation No. 805/2004 for the issue of a certificate indicating the lack or limitation of enforceability of a domestic judgment or an application under Article 6(3) of Regulation No. 805/2004 for the issue of a replacement certificate shall be made by motion to the Master or to the Supreme Court (as the case may be) on notice to the judgment creditor or judgment debtor, grounded, where necessary, upon an affidavit sworn by or on behalf of the moving party and the provisions of Order 52 of these Rules shall apply to any such motion. There shall be exhibited to any grounding affidavit in any such application a completed draft of the form of certificate sought, and the contents of such draft certificate shall be verified in the grounding affidavit. | ||
9. (1) An application under Article 10(1) of Regulation No. 805/2004 for the rectification or the withdrawal of a European Enforcement Order certificate shall be made to the court which certified the domestic judgment concerned as a European Enforcement Order or, where the Master so certified the domestic judgment, to the Master. Before making such application, the moving party shall complete the form of application in Annex VI to Regulation No. 1869/2005 and shall deliver such completed form of application to the Central Office, or (where the Supreme Court is the court of origin) to the Office of the Registrar of the Supreme Court, which shall assign a return date to such application. The moving party shall serve a copy of such completed form of application on the judgment creditor or (as the case may be) the judgment debtor, together with a copy of any affidavit sworn by or on behalf of the moving party to ground the application. Where rectification is sought, there shall be exhibited to any grounding affidavit in any such application a copy of the form of European Enforcement Order certificate previously issued, marked with the rectification sought, and the contents of such marked certificate shall be verified in the grounding affidavit. A notice of application in the said form shall be treated for all purposes as if it were a motion to the court or (as the case may be) to the Master. | ||
(2) Where, on any application under this rule, it is determined that the European Enforcement Order certificate in respect of the domestic judgment concerned ought be rectified or withdrawn, the person on whose application the domestic judgment concerned was certified as a European Enforcement Order shall within seven days of such determination lodge the original European Enforcement Order certificate in respect of the domestic judgment concerned in the Central Office or (where the Supreme Court certified the domestic judgment concerned as a European Enforcement Order) the Office of the Registrar of the Supreme Court. In the case of rectification, a Registrar of the High Court or (as the case may be) the Registrar of the Supreme Court shall rectify such certificate, re-sign, re-seal and subject to any direction made in that regard, re-issue such rectified certificate to the person on whose application the domestic judgment concerned was certified as a European Enforcement Order. In the case of withdrawal such Registrar shall cancel such certificate. | ||
(3) Where the person on whose application the domestic judgment concerned was certified as a European Enforcement Order fails in accordance with sub-rule (2) to lodge the original European Enforcement Order certificate within seven days of a determination, the Registrar concerned shall, at the request of the applicant, provide to the applicant a certificate under the seal of the court certifying the fact that the European Enforcement Order certificate has been rectified or (as the case may be) withdrawn. Such certificate shall be in the in the Form No. 2 in Appendix F, Part IV. | ||
10. (1) The following certificates may be signed and sealed by a Registrar of the High Court on behalf of the High Court or (where the Master has granted an application for the certificate concerned in accordance with rule 4(2), rule 8 or rule 9) on behalf of the Master, or by the Registrar of the Supreme Court on behalf of the Supreme Court: | ||
(i) a European Enforcement Order certificate - judgment (Annex I to Regulation No. 1869/2005) (including for the avoidance of doubt, such certificate as rectified pursuant to Article 10(1) of Regulation No. 805/2004 and in accordance with rule 9(2) of this Order); | ||
(ii) a certificate of lack or limitation of enforceability, (Annex IV to Regulation No. 1869/2005) pursuant to Article 6(2) of Regulation No. 805/2004; | ||
(iii) a European Enforcement Order replacement certificate, (Annex V to Regulation No. 1869/2005) pursuant to Article 6(3) of Regulation No. 805/2004; | ||
(iv) any certificate which seems necessary in accordance with rule 9(3) of this Order. | ||
(2) The Registrar concerned may at the request of the applicant therefor, issue a duplicate of any of the certificates referred to in sub-rule (1). | ||
(3) The Master, the High Court or the Supreme Court (as the case may be) may direct the applicant to lodge a draft of the completed form of a certificate, where such draft certificate has not already been exhibited to an affidavit grounding the application for the certificate. | ||
11. Where an application is made by a judgment creditor for enforcement measures under Order 42, Order 45 or Order 46 of these Rules, in respect of a judgment which has been certified as a European Enforcement Order in a Member State of origin other than the State, such judgment creditor shall, in addition to producing to the proper officer the documents required in support of the judgment creditor's request or application for such measures, produce to the proper officer the documents referred to in Article 20(2) of Regulation No. 805/2004. | ||
12. An application by a debtor for refusal of enforcement under Article 21 of Regulation No. 805/2004 shall be made by originating notice of motion to the High Court entitled “In the matter of Article 21 of Regulation No. 805/2004” and grounded upon an affidavit sworn by or on behalf of the debtor. Save where the High Court, being satisfied as to the urgency of the application, otherwise permits, copies of the originating notice of motion and affidavit referred to in this rule (and any exhibits to that affidavit) shall be served by the debtor (a) not later than seven days before the date fixed for the hearing of the originating notice of motion, on the person to whom the European Enforcement Order was issued and (b) on such other person or persons as the High Court may direct. | ||
13. (1) Where a debtor has, in the Member State of origin, in accordance with Article 23 of Regulation No. 805/2004, challenged a judgment certified as a European Enforcement Order, including an application for review within the meaning of Article 19 of Regulation No. 805/2004, or applied for the rectification or withdrawal of a European Enforcement Order certificate in accordance with Article 10 of Regulation No. 805/2004, an application by the debtor for any relief under Article 23 of Regulation No. 805/2004 shall be made by originating notice of motion to the High Court entitled “In the matter of Article 23 of Regulation No. 805/2004” and grounded upon an affidavit sworn by or on behalf of the debtor. Such affidavit shall set out that the debtor has challenged the judgment certified as a European Enforcement Order or applied for the rectification or withdrawal of a European Enforcement Order certificate and shall exhibit a copy of any document (and, where the said document is not in one of the official languages of the State, a certified translation thereof) by which such challenge or application has been made. | ||
(2) Save where the High Court, being satisfied as to the urgency of the application, otherwise permits, copies of the originating notice of motion and affidavit referred to in sub-rule (1) (and any exhibits to that affidavit) shall be served by the debtor (a) not later than seven days before the date fixed for the hearing of the originating notice of motion, on the person to whom the European Enforcement Order was issued and (b) on such other person or persons as the High Court may direct. | ||
14. A judgment creditor in respect of a judgment which has been certified as a European Enforcement Order in a Member State of origin other than the State shall be at liberty to apply to the proper officer in the Central Office to cause particulars of the European Enforcement Order to be entered in the books kept for the purpose set out in Order 41, rule 6 in the like manner as is provided for in Order 41, rule 6 in relation to domestic judgments. For the avoidance of doubt, a judgment creditor referred to in this rule shall not be obliged to apply to the proper officer for this purpose.” 2. The Rules of the Superior Courts are hereby amended by the substitution for rule 9 of Order 63 thereof, of the following: | ||
“9. Save in the case of a European Enforcement Order certificate issued by the Master in accordance with Order 42B, any party aggrieved by an order, including an order as to costs, made by the Master may, within six days from the perfecting of the same, or if made ex parte from notice of the same, or in the case of a refusal from the date of such refusal, apply to the Court to discharge such order or to make the order refused.” 3. The Schedule hereto shall be inserted to the Rules of the Superior Courts as Part IV of Appendix F thereto. 4. These Rules shall come into operation on the 7th day of February 2006. 5. These Rules shall be construed together with the Rules of the Superior Courts 1986 to 2006 and may be cited as the Rules of the Superior Courts (European Enforcement Orders) 2006. | ||
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SCHEDULE | ||
APPENDIX F, PART IV | ||
No. 1 | ||
O. 42B, r. 5(1) | ||
[Title as in the proceedings] | ||
I, AB, .....................of ......................, the (plaintiff or state other capacity) in the above-entitled proceedings, aged eighteen years and upwards MAKE OATH and say as follows: | ||
1. [State deponent's authority]. I make this affidavit from facts within my own knowledge save where otherwise appears and where so otherwise appears, I believe the same to be true. | ||
2. I beg to refer to the proceedings had herein and to the [judgment given/order made] on the .... day of .................... 20........ where [judgment was given for the plaintiff / the defendant was ordered to pay the plaintiff] the sum of €........ . I say that the said [judgment/order] amounts to a judgment on an uncontested claim, within the meaning of Regulation (EC) No 805/2004. | ||
3. The claim herein was for payment of a specific sum of money which had fallen due and that the claim was uncontested within the meaning of Article 3 of Regulation (EC) No 805/2004 because: | ||
[state which of the circumstances set out in Article 3 applies] | ||
4. The [judgment / order] may be certified as a European Enforcement Order under Article 6 of Regulation (EC) No 805/2004 because: | ||
* each of the conditions set out in paragraphs (a), (b), (c) and (where appropriate) (d) of paragraph 1 of Article 6 of the said Regulation is met in respect of the [judgment / order] or | ||
* (where any of the procedural requirements set out in any one or more of Articles 13 to 17 inclusive of Regulation (EC) No 805/2004 is not met) * each of the conditions set out in paragraphs (a), (b) and (where appropriate) (d) of paragraph 1 of Article 6 of the said Regulation is met in respect of the [judgment / order] and, [state the basis upon which under Article 18(1) or Article 18(2) of the Regulation any non-compliance was cured] | ||
5. I beg to refer to a completed draft European Enforcement Order certificate in the form in Annex I to Regulation No. 1869/2005 upon which marked “A” I have signed my name prior to the swearing hereof and I say that the contents of the said draft certificate as completed are true. I accordingly pray that the [judgment / order] be certified as a European Enforcement Order in accordance with Article 6 of the said Regulation No. 805/2004 in the form of the draft exhibited hereto. | ||
SWORN etc | ||
No. 2 | ||
O. 42B, r. 9(3) | ||
[Title as in the proceedings] | ||
Regulation (EC) No 805/2004 | ||
CERTIFICATE OF * RECTIFICATION / * WITHDRAWAL OF A EUROPEAN ENFORCEMENT ORDER CERTIFICATE (Article 10(3)) | ||
TAKE NOTICE that on application made to this Court on the .... day of ........200 .... | ||
THE FOLLOWING EUROPEAN ENFORCEMENT ORDER CERTIFICATE | ||
and the original of the said European Enforcement Order Certificate (and every duplicate thereof) has not been lodged with this Court. | ||
Done at the Four Courts, Dublin on the ........day of ...........................200 .... | ||
Signed .................................................... | ||
A Registrar of the High Court of Ireland [or the Registrar of the Supreme Court of Ireland] (seal) | ||
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EXPLANATORY NOTE | ||
(This does not form part of the instrument and does not purport to be a legal interpretation) | ||
These Rules facilitate the operation of Regulation (EC) No 805/2004 of the European Parliament and the Council of 21 April 2004 (OJ L 143 of 30 April 2004, page 15), which created a European Enforcement Order for uncontested claims, as amended by Regulation (EC) No. 1869/2005 of the Commission of 16 November 2005 (OJ L 300 of 17 November 2005, page 6). | ||