Reclaiming Motion In Petition (first) Drika Bvba; (second) Roger Van Craen; And (third) Nv Malu Against Clare Ramsay Giles
| Jurisdiction | Scotland |
| Judge | Lord President,Lord Drummond Young,Lord Brodie |
| Neutral Citation | [2018] CSIH 42 |
| Date | 02 May 2018 |
| Docket Number | P147/17 |
| Court | Court of Session |
| Published date | 13 June 2018 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2018] CSIH 42
P147/17
Lord President
Lord Brodie
Lord Drummond Young
OPINION OF THE COURT
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, S olicitors,
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.”
2
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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