The legal system in England and Wales is different to that in Scotland in some respects. In civil proceedings, for instance, a claimant can take proceedings in England against a defendant who lives, or carries out their business, in Scotland. However, special rules then apply if it becomes necessary to obtain judgment in default and enforce that judgment in Scotland – where the defendant’s assets are located.
How do I apply for judgment in default?
Defendants living or carrying on business in Scotland have 21 days in which to respond when proceedings are issued. If the defendant fails to respond within that time limit, the claimant can apply for judgment in default.
To apply for judgment in default, the claimant must send certain documentation to the court in which proceedings were commenced. A court fee must also be paid.
Application for judgment in default
The relevant Form N244 should be completed. This can be obtained from the Court office or from the Court Service’s website. As your application will be dealt with without the need for a hearing, it must include specific information to allow the court to make its ruling, as follows:
That you intend to apply for an Order that you are permitted under the Civil Procedure Rules (CPR) to enter judgment in default for the sum claimed together with interest and costs because:
- the defendant is domiciled 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 or 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
You must also send an affidavit in support of your application. The affidavit should comply with required formalities and should contain the specific information about your claim, for instance, the date proceedings were issued, and properly served on the defendant in accordance with Scottish law, the date by which the defendant should have responded, and confirmation that no defence, etc, has been filed.
A draft order for judgment in default
Your application must also include a draft order. Standard Form N24 can be used for this, and you can obtain it from the Court office or from the Court Service’s website. The draft order simply needs to state that you have permission to enter judgment in default under CPR 12.10(b)(i).
Enforcement in Scotland
Once you have obtained judgment in default, you will need to apply to the court where the initial proceedings were commenced for a certified copy of the judgment, so that you can register it in Scotland. To do this, you must send to the court the following documents and the relevant court fee.
An application for a certified copy of the judgment
Form N244 should be used, stating that you intend to apply for the issue of a certificate of judgment to register for enforcement in Scotland on the basis that the judgment remains unsatisfied. It should also cite the provision for the issue of a certificate of judgment under Schedule 6 to the Civil Jurisdiction and Judgments Act 1982 and CPR 74.17.
A witness statement in support
Your witness statement should contain prescribed information including:
- That the witness statement is made in support of your application for a certificate of judgment to register for enforcement in Scotland
- The names and addresses of both you and the defendant
- The sum owing under the money provisions of the judgment, and any interest accumulated to date, and
- A statement confirming that the judgment is not stayed.
A draft certificate
Form 111 should be used, which you can obtain from the Court office or the Court Service’s website.
Registration of the judgment in Scotland and enforcement
To enforce the judgment, you will need to apply to have the certificate of judgment registered in Scotland. This must be done within 6 months, and there is a court fee to pay.
However, the legal procedure enforcement in Scotland is governed by Scottish law and involves obtaining a warrant for execution. You should therefore seek specialist from a solicitor with expertise in Scottish law.