Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012
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Amendment of Jurisdiction of Courts and Enforcement of Judgments Act 1998. |
1.— The Jurisdiction of Courts and Enforcement of Judgments Act 1998 is amended— | |
(a) by inserting the following Part after Part III: | ||
“PART IIIA | ||
2007 Lugano Convention | ||
Interpretation of this Part. | ||
20A.— (1) In this Part— | ||
‘Convention’ means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters signed at Lugano on 30 October 2007 and concluded on behalf of the European Community pursuant to Council Decision 2009/430/EC and the Protocols and Annexes thereto (the text of which, in the English language, is, for convenience of reference, set out in the Tenth Schedule); | ||
‘Convention court’ means a court of a state bound by the Convention; | ||
‘enforceable maintenance order’ means— | ||
(a) a maintenance order respecting all of which an enforcement order has been made, or | ||
(b) if an enforcement order has been made respecting only part of a maintenance order, the maintenance order to the extent to which it is so ordered to be enforced; | ||
‘enforcement order’ means an order for the recognition or enforcement of all or part of a judgment where the order— | ||
(a) is made by the Master of the High Court under section 20E, or | ||
(b) is made or varied— | ||
(i) on appeal from a decision of the Master under that section, or | ||
(ii) on appeal from a decision of the High Court on such an appeal; | ||
‘judgment’ means a judgment or order (by whatever name called) that is a judgment for the purposes of the Convention and, except in sections 20H and 20J, includes an authentic instrument within the meaning of Article 57 and a settlement referred to in Article 58; | ||
‘maintenance’ means maintenance within the meaning of the Convention; | ||
‘maintenance creditor’ means, in relation to a maintenance order, the person entitled to the payments for which the order provides; | ||
‘maintenance debtor’ means, in relation to a maintenance order, the person who is liable to make a payment under the order; | ||
‘maintenance order’ means a judgment relating to maintenance; | ||
‘state bound by the Convention’ means a state, other than the State, respecting which the Convention has entered into force in accordance with Article 69 or 70 of that Convention. | ||
(2) (a) A word or expression that is used in this Part and is also used in the Convention has, unless the context otherwise requires, the same meaning in this Part as it has in the Convention, and | ||
(b) a reference to an Article is a reference to an Article of the Convention. | ||
(3) The definition of ‘judgment’ in subsection (1) shall not be construed to limit the effect of Article 64 of the Convention. | ||
Convention to have force of law. | ||
20B.— The Convention has force of law in the State. | ||
Interpretation of Convention. | ||
20C.— (1) Judicial notice shall be taken of the Convention and of— | ||
(a) any decision of the courts of other states bound by the Convention concerning the Convention, | ||
(b) any relevant decision concerning the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on the 16th day of September 1988, and | ||
(c) any relevant decision concerning the instruments referred to in Article 64(1), | ||
and a court shall, when interpreting and applying the Convention, take due account of the principles laid down by those decisions. | ||
(2) Judicial notice shall be taken of the explanatory report prepared by Professor Fausto Pocar on the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Lugano on 30 October 2007 2 . | ||
(3) The explanatory report referred to in subsection (2) may be considered when interpreting the meaning of any provision of the Convention and shall be given such weight as is appropriate in the circumstances. | ||
Orders. | ||
20D.— (1) The Minister for Foreign Affairs and Trade may, by order, declare— | ||
(a) that a state specified in the order is a state bound by the Convention, | ||
(b) that a denunciation has been made pursuant to Article 74 of the Convention, or | ||
(c) that a communication or declaration has been made pursuant to Article 69(3) or 71 of the Convention. | ||
(2) The text of a denunciation, communication or declaration referred to in subsection (1) shall be set out in the order declaring that the denunciation, communication or declaration has been made. | ||
(3) An order that is in force— | ||
(a) under subsection (1)(a), shall be evidence that any state to which the declaration relates is a state bound by the Convention, and | ||
(b) under subsection (1)(b) or (c), shall be evidence that the denunciation, communication or declaration, the text of which is set out in the order, was made and evidence of its contents. | ||
Applications for recognition or enforcement of judgments. | ||
20E.— (1) An application under the Convention for the recognition or enforcement in the State of a judgment shall be made to the Master of the High Court. | ||
(2) The Master of the High Court shall determine an application referred to in subsection (1) in accordance with the Convention. | ||
(3) If the application is for the enforcement of a judgment, the Master of the High Court shall declare the judgment enforceable immediately on completion of the formalities provided for in Article 53 without any review under Articles 34 and 35 and shall make an enforcement order in relation to the judgment. | ||
(4) An order under subsection (2) may provide for the recognition or enforcement of only part of the judgment concerned. | ||
(5) For the purposes of this Part references in Articles 42, 43, 45, 47, 48, 52, 53 and 57 to a declaration of enforceability may be treated as references to an enforcement order. | ||
Enforcement of judgments. | ||
20F.— (1) Subject to section 20H and the restrictions on enforcement contained in Article 47(3), if an enforcement order has been made respecting a judgment, the judgment— | ||
(a) shall, to the extent to which its enforcement is authorised by the enforcement order, be of the same force and effect as a judgment of the High Court, and | ||
(b) may be enforced by the High Court, and proceedings taken on it, as if it were a judgment of that Court. | ||
(2) Subject to subsections (3) and (6), subsection (1) shall not apply to a maintenance order. | ||
(3) On application by a maintenance creditor under an enforceable maintenance order, the Master of the High Court may by order declare that the following shall be regarded as being payable under a judgment referred to in subsection (1): | ||
(a) a sum payable under the enforceable maintenance order as a periodic payment but not paid before the relevant enforcement order was made; | ||
(b) a lump sum (not being a sum referred to in paragraph (a)) which is payable under the enforceable maintenance order. | ||
(4) An order shall not be made under subsection (3) unless the Master of the High Court considers that by doing so the enforceable maintenance order would be more effectively enforced respecting any sum referred to in that paragraph. | ||
(5) If such an order is made, the sum to which it relates shall be deemed to be payable under a judgment referred to in subsection (1) and not otherwise. | ||
(6) A maintenance order shall be regarded as a judgment referred to in subsection (1) if the District Court does not have jurisdiction to enforce it under section 20G. | ||
Enforcement of enforceable maintenance orders. | ||
20G.— (1) Subject to section 20H and the restrictions on enforcement contained in Article 47(3), the District Court shall have jurisdiction to enforce an enforceable maintenance order. | ||
(2) An enforceable maintenance order shall, from the date on which the maintenance order was made, be deemed for the purposes of— | ||
(a) subsection (1), | ||
(b) section 98(1) (as amended by section 30(1) of the Act of 1976) of the Defence Act 1954 , and | ||
(c) subject to the Convention, the variation or discharge of that order under section 6 (as amended by section 43(b) of the Act of 1995) of the Act of 1976, | ||
to be an order made by the District Court under section 5, 5A (inserted by section 18 of the Act of 1987) or 21A (inserted by section 21 of the Act of 1987) of the Act of 1976, as may be appropriate. | ||
(3) Subsections (1) and (2) shall apply even though an amount payable under the enforceable maintenance order exceeds the maximum amount the District Court has jurisdiction to award under an enactment referred to in subsection (2). | ||
(4) Where an enforceable maintenance order is varied by a Convention court, and an enforcement order has been made respecting all or part of the enforceable maintenance order as so varied, or respecting all or part of the order effecting the variation, the enforceable maintenance order shall, from the date on which the variation takes effect, be enforceable in the State only as so varied. | ||
(5) Where an enforceable maintenance order is revoked by a Convention court, and an enforcement order has been made respecting the order effecting the revocation, the enforceable maintenance order shall, from the date on which the revocation takes effect, cease to be enforceable in the State except in relation to any sums under the order that were payable, but not paid, on or before that date. | ||
(6) Subject to subsections (3) to (5) of section 20F, the following shall be regarded as being payable pursuant to an order made under section 5, 5A (inserted by section 18 of the Act of 1987) or 21A (inserted by section 21 of the Act of 1987) of the Act of 1976: | ||
(a) any sum payable under an enforceable maintenance order but not paid before the relevant enforcement order was made; | ||
(b) any costs of or incidental to the application for the enforcement order that are payable under section 20H(2). | ||
(7) The jurisdiction vested in the District Court by this section may be exercised by the judge of that Court for the time being assigned to— | ||
(a) if the maintenance debtor under an enforceable maintenance order resides in the State, the district court district in which the debtor resides or carries on any profession, business or occupation, or | ||
(b) if such a maintenance debtor does not so reside but is employed by a person residing or having a place of business in the State or by a body whose seat of management or control is in the State, the district court district in which the person resides or the body has its seat. | ||
(8) Notwithstanding anything to the contrary in an enforceable maintenance order, the maintenance debtor shall pay any sum payable under that order to— | ||
(a) in a case referred to in subsection (7)(a), the district court clerk for the district court area in which the debtor for the time being resides, or | ||
(b) in a case referred to in subsection (7)(b), a district court clerk specified by the District Court, | ||
for transmission to the maintenance creditor or, if a public authority has been authorised by the creditor to receive the sum, to the public authority. | ||
(9) If a sum payable under an enforceable maintenance order is not duly paid and if the maintenance creditor so requests in writing, the district court clerk concerned shall— | ||
(a) issue a summons respecting that sum under section 8 (as amended by section 63 of the Civil Law (Miscellaneous Provisions) Act 2011 ) of the Act of 1940, or | ||
(b) make an application respecting that sum to the District Court under section 10 (as amended by section 43 of the Act of 1995) of the Act of 1976. | ||
(10) For the purposes of subsection (9)(a) a reference to an applicant in section 8(1) of the Act of 1940 shall be construed as including a reference to the district court clerk. | ||
(11) Nothing in this section shall affect the right of a maintenance creditor under an enforceable maintenance order to institute proceedings for the recovery of a sum payable to a district court clerk under subsection (8). | ||
(12) The maintenance debtor shall give notice of any change of address to the district court clerk for the district court area in which the debtor has been residing. | ||
(13) A person who, without reasonable excuse, contravenes subsection (12) is guilty of an offence and liable on summary conviction to a class C fine. | ||
(14) If there are two or more district court clerks for a district court area, a reference in this section to a district court clerk shall be construed as a reference to any of them. | ||
(15) For the purposes of this section the Dublin Metropolitan District is deemed to be a district court area. | ||
(16) In this section— | ||
‘Act of 1940’ means the Enforcement of Court Orders Act 1940 ; | ||
‘Act of 1976’ means the Family Law (Maintenance of Spouses and Children) Act 1976 ; | ||
‘Act of 1987’ means the Status of Children Act 1987 ; | ||
‘Act of 1995’ means the Family Law Act 1995 . | ||
Interest on judgments and payment of costs. | ||
20H.— (1) Where, on application for an enforcement order respecting a judgment, it is shown— | ||
(a) that the judgment provides for the payment of a sum of money, and | ||
(b) that in accordance with the law of the state bound by the Convention in which the judgment was given, interest on the sum is recoverable under the judgment at a particular rate or rates and from a particular date or time, | ||
the enforcement order, if made, shall provide that the person liable to pay that sum shall also be liable to pay the interest, apart from any interest on costs recoverable under subsection (2), in accordance with the particulars noted in the order, and the interest shall be recoverable by the applicant as though it were part of the sum. | ||
(2) An enforcement order may provide for the payment to the applicant by the respondent of the reasonable costs of or incidental to the application for the enforcement order. | ||
(3) A person required by an enforcement order to pay costs shall be liable to pay interest on the costs as if they were the subject of an order for the payment of costs made by the High Court on the date on which the enforcement order was made. | ||
(4) Interest shall be payable on a sum referred to in subsection (1)(a) only as provided for in this section. | ||
Currency of payments under enforceable maintenance orders. | ||
20I.— (1) An amount payable in the State under a maintenance order by virtue of an enforcement order shall be payable in the currency of the State. | ||
(2) If the amount is stated in the maintenance order in any other currency, payment shall be made on the basis of the exchange rate prevailing on the date the enforcement order is made between the currency of the State and the other currency. | ||
(3) For the purposes of this Part a certificate purporting to be signed by an officer of an authorised institution and to state the exchange rate prevailing on a specified date between a specified currency and the currency of the State shall be admissible as evidence of the facts stated in the certificate. | ||
(4) In this section, ‘authorised institution’ means— | ||
(a) a credit institution within the meaning of Directive 2006/48/EC 3 of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (including a branch, within the meaning of Article 4(3) of that Directive, located in a Member State of a credit institution having its head office in or, in accordance with Article 38 of that Directive, elsewhere than in a Member State), | ||
(b) a trustee savings bank within the meaning of the Trustee Savings Banks Acts 1989 and 2001, or | ||
(c) An Post. | ||
Proof and admissibility of judgments and certain translations. | ||
20J.— (1) For the purposes of the Convention a document, duly authenticated, which purports to be a copy of a judgment given by a Convention court shall without further proof be deemed to be a true copy of the judgment, unless the contrary is shown. | ||
(2) A document purporting, under subsection (1), to be a copy of a judgment shall be regarded for those purposes as being duly authenticated if it— | ||
(a) purports to bear the seal of the Convention court or authority concerned, or | ||
(b) purports to be certified by a judge or officer of the Convention court or authority to be a true copy of the judgment. | ||
(3) A document which— | ||
(a) purports to be a translation of— | ||
(i) a judgment given by a Convention court, | ||
(ii) an authentic instrument within the meaning of Article 57(1), | ||
(iii) a settlement within the meaning of Article 58, or | ||
(iv) a certificate mentioned in Article 54, 57(4) or 58, and | ||
(b) is certified as correct by a person competent to do so, | ||
shall be admissible as evidence of the document of which it purports to be a translation. | ||
Provisional, including protective, measures. | ||
20K.— (1) The High Court may, on application to it pursuant to Article 31, grant any provisional measures, including protective measures, that the Court has power to grant in proceedings that, apart from this Act, are within its jurisdiction if— | ||
(a) proceedings have been or are to be commenced in a state bound by the Convention, and | ||
(b) the subject matter of the proceedings is within the scope of the Convention (whether or not that Convention has effect in relation to the proceedings). | ||
(2) On such an application the High Court may refuse to grant the measures sought if, in its opinion, the fact that, apart from this section, the Court does not have jurisdiction in relation to the subject matter of the proceedings makes it inexpedient for it to grant those measures. | ||
(3) Subject to Article 47(3), an application to the Master of the High Court for an enforcement order respecting a judgment may include an application for any protective measures the High Court has power to grant in proceedings that, apart from this Part, are within its jurisdiction. | ||
(4) Where an enforcement order is made, the Master of the High Court shall grant any protective measures referred to in subsection (3) that are sought in the application for the enforcement order. | ||
Domicile. | ||
20L.— For the purposes of the Convention and this Part— | ||
(a) a person is domiciled in the State or another state (not being a state bound by the Convention) if he or she is ordinarily resident in the State or that other state, | ||
(b) a person is domiciled in a place in the State if he or she is domiciled in the State and is ordinarily resident or carries on any profession, business or occupation in that place, and | ||
(c) a trust is domiciled in the State if the law of the State is the system of law with which the trust has its closest and most real connection. | ||
Venue for certain proceedings. | ||
20M.— (1) Subject to Articles 2 to 31, the jurisdiction of the Circuit Court in proceedings that may be instituted in the State by virtue of Article 2, 9(1)(a), 12(1), 16(2), 19(1) or 20(1) or the proviso to Article 22(1) shall be exercised by the judge of the Court for the time being assigned to the circuit where the defendant, or one of the defendants, ordinarily resides or carries on any profession, business or occupation. | ||
(2) Subsection (1) shall apply where, apart from that subsection, the Circuit Court’s jurisdiction would be determined by reference to the place where the defendant resides or carries on business. | ||
(3) The jurisdiction of the Circuit Court or District Court in proceedings that may be instituted in the State under Article 9(1)(b) or 16(1) by a plaintiff domiciled in the State may be exercised by the judge for the time being assigned— | ||
(a) in the case of the Circuit Court, to the circuit, and | ||
(b) in the case of the District Court, to the district court district, | ||
in which the plaintiff or one of the plaintiffs ordinarily resides or carries on any profession, business or occupation. | ||
Restriction of Part III. | ||
20N.— Part III shall, except as provided in Article 65, cease to apply between the State and a state bound by the Convention.”, | ||
(b) by inserting the Schedule set out in the Schedule to this Act after the Ninth Schedule. | ||