Obtaining Judgment in Default against a Defendant who lives or carries out their business in Scotland and enforcement of the Judgment

Legal Systems in the UK

When and why will this arise?

England and Wales operate under a different legal system to Scotland. In many cases it will be permissible to commence proceedings against a Defendant who lives or carries out their business in Scotland but necessary to enforce the judgment in Scotland, since that is where the Defendant’s assets are located.

Special rules apply where a Claimant wishes to obtain judgment in default in England or Wales in either a County Court or the High Court and then enforce that judgment in Scotland.

The time for responding to a Claim Form and Particulars of Claim where the Defendant lives or carries out their business in Scotland is 21 days from the date of deemed service. If the Defendant fails to respond within that time it is open to the Claimant to apply for judgment in default.

How to apply for judgment in default

Where the Defendant lives or carries out their business in Scotland the following have to be sent to the English or Welsh Court in which the proceedings were commenced in order to obtain judgment in default:

An application for judgment in default

Form N244, which can be obtained from the Court office or from the Court Service’s website, should be used.

The application will be dealt with without the need for a hearing and should include the following information:

  • That the Claimant intends to apply for an Order, a draft of which should be attached, that the Claimant be permitted under CPR 12.10(b)(i) to enter judgment in default for the sum claimed together with interest and costs because:

    • The Defendant is domicile in Scotland;

    • The Claim has been properly served in accordance with CPR 6.19(1);

    • The Defendant has not filed an Acknowledgment of Service or a Defence and the relevant period for doing so has expired;

    • The Defendant has not satisfied the claim;

    • The Defendant has not filed an Admission;

    • The claim is one that the Court has power to hear and decide;

    • No other Court has exclusive jurisdiction under the Civil Jurisdiction and Judgments Act 1982 or the Judgments Regulation to hear and decide the claim.

An affidavit in support of the application

The affidavit should comply with the formalities of Practice Direction 32 to the Civil Procedure Rules and should contain the following information:

That the affidavit is made in support of the Claimant’s application for Judgment in Default made pursuant to CPR 12.10(b)(i);

  • The date upon which the Claim Form and Particulars of Claim were issued;

  • A statement confirming that the Claim Form and Particulars of Claim were properly served on the Defendant in accordance of the laws of Scotland, namely by recorded delivery post (the normal method of service in Scotland) and the date upon which they were served. (A Certificate of Service should be exhibited to the affidavit);

  • The date the Defendant had until to file an Acknowledgment of Service or a Defence;

  • A statement confirming that the Defendant has failed to file an Acknowledgment of Service or a Defence;

  • A statement confirming that the Defendant has not satisfied the claim;

  • A statement confirming that the Defendant has not filed an Admission;

  • A statement that the claim is one that the Court has power to hear and decide;

  • Brief details as to what the claim is about and why the English or Welsh Court has jurisdiction to hear and decide the claim;

  • A statement confirming that no other Court has exclusive jurisdiction under the Civil Jurisdiction and Judgments Act 1982 or the Judgments Regulation to hear and decide the claim;

  • If the Defendant is an individual, his or her date of birth, if known.

A draft order

Form N24 can be used, a copy of which can be obtained from the Court office or found on the Court Service’s website. The draft order needs simply to say that the Claimant has been given permission to enter judgment in default pursuant to CPR 12.10(b)(i).

The court fee

The Court fee payable is the Court fee payable for without notice applications. The amount of the Court fee can be found on the Court Service’s website.

How to apply for a certified copy of the judgment to register in Scotland

Once judgment in default has been obtained it is necessary to apply to the English or Welsh Court where the proceedings were commenced for a certified copy of the judgment to register in Scotland. In order to obtain a certified copy of the judgment the following need to be sent to the Court:

An application for a certified copy of the judgment

Form N244 should be used.

The application will be dealt with without the need for a hearing and should state that the Claimant intends to apply for the issue of a certificate of judgment to register for enforcement in Scotland because the judgment remains unsatisfied and provision for the issue of a certificate of judgment is made by Schedule 6 to the Civil Jurisdiction and Judgments Act 1982 and CPR 74.17.

An witness statement in support of the application

The witness statement should comply with the formalities of Practice Direction 32 to the Civil Procedure Rules and should contain the following information:

  • That the witness statement is made in support of the Claimant’s application for the issue, in accordance with Schedule 6 to the Civil Jurisdiction and Judgments Act 1982, of a certificate of judgment to register for enforcement in Scotland;

  • The name and address of the judgment creditor;

  • The name and address of the judgment debtor;

  • The sum payable and unsatisfied under the money provisions of the judgment;

  • The amount of interest accrued to the date of the application;

  • A statement confirming that the judgment is not stayed.

A draft certificate

Form 111 should be used, a copy of which can be obtained from the Court office or found on the Court Service’s website.

The court fee

The Court fee payable is the Court fee payable for without notice applications. The amount of the Court fee can be found on the Court Service’s website.

Registration of the judgment in Scotland and enforcement of the judgment

Once the certificate of the judgment has been received from the court it will be necessary to register the judgment in Scotland and take enforcement action. The procedure for registration of a judgment and enforcement in Scotland is governed by Scottish law and, therefore, beyond the remit of this website. Ordinarily a solicitor working in England or Wales would refer the case to Scottish lawyers at this stage.