JURISDICTION OF COURTS AND ENFORCEMENT OF JUDGMENTS ACT, 1998

AN ACT TO CONSOLIDATE THE JURISDICTION OF COURTS AND ENFORCEMENT OF JUDGMENTS ACTS, 1988 AND 1993, TO GIVE THE FORCE OF LAW TO THE CONVENTION SIGNED AT BRUSSELS ON THE 29TH DAY OF NOVEMBER, 1996 ON THE ACCESSION OF THE REPUBLIC OF AUSTRIA, THE REPUBLIC OF FINLAND AND THE KINGDOM OF SWEDEN TO THE CONVENTION ON JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS AND TO THE PROTOCOL ON ITS INTERPRETATION BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES WITH THE ADJUSTMENTS MADE TO THEM BY THE CONVENTION ON THE ACCESSION OF THE KINGDOM OF DENMARK, OF IRELAND AND OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, BY THE CONVENTION ON THE ACCESSION OF THE HELLENIC REPUBLIC AND BY THE CONVENTION ON THE ACCESSION OF THE KINGDOM OF SPAIN AND THE PORTUGUESE REPUBLIC AND TO PROVIDE FOR RELATED MATTERS. [23rd December, 1998]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I Preliminary and General

1 Short title and commencement.

1.—(1) This Act may be cited as the Jurisdiction of Courts and Enforcement of Judgments Act, 1998.

• (2) This Act shall come into operation on such day or days as, by order or orders made by the Minister, may be fixed either generally or with reference to any particular purpose or provision, and different days may be so fixed for different purposes and different provisions.

2 Interpretation.

2.—(1) In this Act, unless the context otherwise requires—

“the Accession Conventions” means the 1978 Accession Convention, the 1982 Accession Convention, the 1989 Accession Convention and the 1996 Accession Convention;

“the 1978 Accession Convention” means the Convention on the accession to the 1968 Convention and the 1971 Protocol of the State, Denmark and the United Kingdom, signed at Luxembourg on the 9th day of October, 1978;

“the 1982 Accession Convention” means the Convention on the accession to the 1968 Convention and the 1971 Protocol (as amended in each case by the 1978 Accession Convention) of the Hellenic Republic, signed at Luxembourg on the 25th day of October, 1982;

“the 1989 Accession Convention” means the Convention on the accession to the 1968 Convention and the 1971 Protocol (as amended in each case by the 1978 Accession Convention and the 1982 Accession Convention) of the Kingdom of Spain and the Portuguese Republic, signed at San Sebastian on the 26th day of May, 1989;

“the 1996 Accession Convention” means the Convention on the accession to the 1968 Convention and the 1971 Protocol (as amended in each case by the 1978 Accession Convention, the 1982 Accession Convention and the 1989 Accession Convention) of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, signed at Brussels on the 29th day of November, 1996;

“the 1968 Convention” means the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (including the protocol annexed to that Convention), signed at Brussels on the 27th day of September, 1968;

“court” includes a tribunal;

“the European Communities” has the same meaning as in section 1 of the European Communities Act, 1972;

“the European Court” means the Court of Justice of the European Communities;

“the Lugano Convention” means the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed at Lugano on the 16th day of September, 1988, and includes Protocol 1;

“the Minister” means the Minister for Justice, Equality and Law Reform;

“the 1971 Protocol” means the Protocol on the interpretation of the 1968 Convention by the European Court, signed at Luxembourg on the 3rd day of June, 1971;

“Protocol 1” means the protocol on certain questions of jurisdiction, procedure and enforcement, signed at Lugano on the 16th day of September, 1988.

• (2) In this Act, unless the context otherwise requires, a reference to, or to any provision of, the 1968 Convention or the 1971 Protocol is to the 1968 Convention, the 1971 Protocol or the provision, as amended by—

• (a) the 1978 Accession Convention,

• (b) the 1982 Accession Convention,

• (c) the 1989 Accession Convention, and

• (d) the 1996 Accession Convention in so far as it is in force between the State and a state respecting which it has entered into force in accordance with Article 16 of that Convention.

• (3) In this Act—

• (a) a reference to a section, a Part or a Schedule is to a section or a Part of, or a Schedule to, this Act unless it is indicated that a reference to some other enactment is intended,

• (b) a reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs unless it is indicated that a reference to some other provision is intended, and

• (c) a reference to an enactment is to that enactment as amended or modified by any other enactment including this Act.

• (4) The collective citation “the Courts (Supplemental Provisions) Acts, 1961 to 1998” shall include sections 7 to 10, 13, 14 and 16 of this Act, and those Acts and those sections shall be construed together as one Act.

3 Texts of Conventions and Protocols.

3.—(1) For convenience of reference, the following texts are set out in the Schedules:

• (a) in the First Schedule, the 1968 Convention as amended by—

• (i) Titles II and III of the 1978 Accession Convention,

• (ii) Titles II and III of the 1982 Accession Convention,

• (iii) Titles II and III of, and Annex 1 to, the 1989 Accession Convention, and

• (iv) Titles II and III of the 1996 Accession Convention;

• (b) in the Second Schedule, the 1971 Protocol as amended by—

• (i) Title IV of the 1978 Accession Convention,

• (ii) Title IV of the 1982 Accession Convention,

• (iii) Title IV of the 1989 Accession Convention, and

• (iv) Title IV of the 1996 Accession Convention;

• (c) in the Third Schedule, Titles V and VI of the 1978 Accession Convention as amended by the 1989 Accession Convention;

• (d) in the Fourth Schedule, Titles V and VI of the 1982 Accession Convention;

• (e) in the Fifth Schedule, Titles VI and VII of the 1989 Accession Convention;

• (f) in the Sixth Schedule, Titles V and VI of the 1996 Accession Convention;

• (g) in the Seventh Schedule, the Lugano Convention;

• (h) in the Eighth Schedule, Protocol 1.

• (2) The texts set out in the Schedules are prepared from—

• (a) in the case of the First Schedule and the Second Schedule, the authentic texts, in the English and Irish languages, referred to in Articles 37 and 41 of the 1978 Accession Convention, Article 17 of the 1982 Accession Convention, Article 34 of the 1989 Accession Convention and Article 18 of the 1996 Accession Convention, and

• (b) in the case of the remaining Schedules, the authentic texts, in the English language, referred to in the Articles mentioned in paragraph (a) and in Article 68 of the Lugano Convention.

PART II The 1968 Convention and the Accession Conventions

4 Interpretation of this Part.

4.—(1) In this Part, unless the context otherwise requires—

“Contracting State” means a state—

• (a) which is—

• (i) one of the original parties to the 1968 Convention (Belgium, the Federal Republic of Germany, France, Italy, Luxembourg and the Netherlands), or

• (ii) one of the parties acceding to the 1968 Convention under any of the Accession Conventions (the State, Denmark, the United Kingdom, the Hellenic Republic, the Kingdom of Spain, the Portuguese Republic, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden), and

• (b) respecting which—

• (i) the 1978 Accession Convention has entered into force in accordance with Article 39 of that Convention,

• (ii) the 1982 Accession Convention has entered into force in accordance with Article 15 of that Convention,

• (iii) the 1989 Accession Convention has entered into force in accordance with Article 32 of that Convention, or

• (iv) the 1996 Accession Convention has entered into force in accordance with Article 16 of that Convention,

as the case may be;

“the Conventions” means the 1968 Convention, the 1971 Protocol and the Accession Conventions;

“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 7, or

• (b) is made or varied on appeal from a decision of the Master of the High Court under section 7 or from a decision of the High Court relating to the Master’s decision;

“judgment” means a judgment or order (by whatever name called) that is a judgment for the purposes of the 1968 Convention, and, except in sections 10, 12 and 14, includes—

• (a) an instrument or settlement referred to in Title IV of the 1968 Convention, and

• (b) an arrangement relating to maintenance obligations concluded with or authenticated by an administrative authority, as referred to in Article 10 of the 1996 Accession Convention;

“maintenance” means maintenance within the meaning of the Conventions;

“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 liable to make payments under the order;

“maintenance order” means a judgment relating to maintenance.

• (2) The Minister for Foreign Affairs may, by order, declare—

• (a) that any state specified in the order is a Contracting State, or

• (b) that a declaration has been made pursuant to Article IV of the 1968 Convention, or a communication has been made pursuant to Article VI of that Convention, to the Secretary General of the Council of the European Communities.

• (3) The text of a declaration or communication referred to in subsection (2)(b) shall be set out in the order declaring that the declaration or communication has been made.

• (4) An order that is in force under subsection (2) is—

• (a) if made under subsection (2)(a), evidence that any state to which the declaration relates is a Contracting State, and

• (b) if made under subsection (2)(b), evidence that the declaration pursuant to Article IV or the communication pursuant to Article VI was made and evidence of its contents.

• (5) The Minister for Foreign Affairs may, by order, amend or revoke an order made under subsection (2) or this subsection.

5 Conventions to have force of law.

5.—The Conventions shall have the force of law in the State and judicial notice shall be taken of them.

6 Interpretation of Conventions.

6.—(1) Judicial notice shall be taken of—

• (a) a ruling or decision of, or expression of opinion by, the European Court on any question about the meaning or effect of a provision of the Conventions, and

• (b) the reports listed in subsection (2).

• (2) When interpreting a provision of the Conventions, a court may consider the following reports (which are reproduced in the Official Journal of the European Communities) and shall give them the weight that is appropriate in the circumstances:

• (a) the reports by Mr. P. Jenard on the 1968 Convention and the 1971 Protocol¹;

• (b) the report by Professor Peter Schlosser on the 1978 Accession Convention²;

• (c) the report by Professor Demetrios Evrigenis and Professor K. D. Kerameus on the accession of the Hellenic Republic to the 1968 Convention and the 1971 Protocol³;

• (d) the report by Mr. Almeida Cruz, Mr. Desantes Real and Mr. P. Jenard on the 1989 Accession Convention⁴.

7 Applications for recognition and enforcement of Community judgments.

7.—(1) An application under the Conventions for the recognition or enforcement in the State of a judgment shall—

• (a) be made to the Master of the High Court, and

• (b) be determined by the Master by order in accordance with the Conventions.

• (2) An order made by the Master of the High Court under subsection (1) may include an order for the recognition or enforcement of only part of a judgment.

8 Enforcement of Community judgments by the High Court.

8.—(1) Subject to section 10 (4) and to the restrictions on enforcement contained in Article 39 of the 1968 Convention, if an enforcement order has been made respecting a judgment—

• (a) the judgment 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) the High Court has the same powers respecting enforcement of the judgment, and proceedings may be taken on the judgment, as if it were a judgment of that Court.

• (2) Subject to subsections (3) and (6), subsection (1) shall apply only to a judgment other than a maintenance order.

• (3) On application by the 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) sums which were payable under the maintenance order as periodic payments but were 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) A declaration 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 sums or sum referred to in that subsection.

• (5) If a declaration is made under subsection (3), the sums or sum to which the declaration relates shall be deemed, for the purposes of this Part, 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 the order under section 9(7).

9 Enforcement of Community maintenance orders by the District Court.

9.—(1) Subject to section 10(4) and to the restrictions on enforcement contained in Article 39 of the 1968 Convention, 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) of the Defence Act, 1954, and

• (c) subject to the 1968 Convention, the variation or discharge of that order under section 6 of the Family Law (Maintenance of Spouses and Children) Act, 1976, as amended by the Status of Children Act, 1987,

to be an order made by the District Court under section 5 or section 5A or 21A (inserted by the Status of Children Act, 1987) of the Family Law (Maintenance of Spouses and Children) Act, 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 the appropriate enactment mentioned in subsection (2).

• (4) Where an enforceable maintenance order is varied by a court in a Contracting State other than the State 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 court in a Contracting State other than the State 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 were not paid, on or before that date.

• (6) Subject to section 8(3) to (5) of this Act, the following shall be regarded as being payable pursuant to an order made under section 5 or section 5A or 21A (inserted by the Status of Children Act, 1987) of the Family Law (Maintenance of Spouses and Children) Act, 1976:

• (a) any sums that were payable under an enforceable maintenance order but were not paid before the date of the making of the relevant enforcement order;

• (b) any costs of or incidental to the application for the enforcement order that are payable under section 10(2) of this Act.

• (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 the maintenance debtor under an enforceable maintenance order does not reside in the State but is in the employment of an individual residing or having a place of business in the State or of a corporation or association having its seat in the State, the district court district in which that individual resides or that corporation or association has its seat.

• (8) Despite anything to the contrary in an enforceable maintenance order, the maintenance debtor shall pay any sum payable under that order to—

• (a) in the case referred to in subsection (7)(a), the district court clerk for the district court district 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 under the order or, if a public authority has been authorised by the creditor to receive that sum, to that authority.

• (9) If a sum payable under an enforceable maintenance order is not duly paid and if the maintenance creditor under the order so requests in writing, the district court clerk concerned shall make an application respecting that sum under—

• (a) section 10 (which relates to the attachment of certain earnings) of the Family Law (Maintenance of Spouses and Children) Act, 1976, or

• (b) section 8 (which relates to the enforcement of certain maintenance orders) of the Enforcement of Court Orders Act, 1940.

• (10) For the purposes of subsection (9)(b), a reference in section 8 of the Enforcement of Court Orders Act, 1940 (other than in subsections (4) and (5) of that section) to an applicant shall be construed as 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) Section 8(7) of the Enforcement of Court Orders Act, 1940, does not apply to proceedings for the enforcement of an enforceable maintenance order.

• (13) The maintenance debtor under an enforceable maintenance order shall give notice to the district court clerk for the district court area in which the debtor has been residing of any change of address.

• (14) A person who, without reasonable excuse, contravenes subsection (13) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000.

• (15) 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 those clerks.

• (16) For the purposes of this section, the Dublin Metropolitan Area shall be deemed to be a district court area.

10 Provisions in enforcement orders for payment of interest on judgments and payment of costs.

10.—(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 Contracting State in which the judgment was given, interest on that 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 that 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 that sum.

• (2) An enforcement order may, at the discretion of the court concerned or the Master of the High Court, as may be appropriate, 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 the enforcement order was made.

• (4) Interest shall be payable on a sum referred to in subsection (1) only as provided for in this section.

11 Currency of payments under Community maintenance orders.

11.—(1) An amount payable in the State under a maintenance order by virtue of an enforcement order shall be paid in the currency of the State.

• (2) If the amount referred to in subsection (1) is stated in the maintenance order in a currency other than that of the State, the 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 section, 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 any of the following:

• (a) a body licensed under the Central Bank Acts, 1942 to 1998, or authorised under regulations made under the European Communities Act, 1972, to carry on banking business;

• (b) a building society incorporated or deemed to be incorporated under section 10 of the Building Societies Act, 1989;

• (c) a society licensed under section 10 of the Trustee Savings Banks Act, 1989, to carry on the business of a trustee savings bank;

• (d) An Post;

• (e) ACC Bank public limited company;

• (f) ICC Bank public limited company.

12 Proof and admissibility of certain judgments, documents and related translations.

12.—(1) For the purposes of the Conventions—

• (a) a document that is duly authenticated and purports to be a copy of a judgment given by a court of a Contracting State other than the State shall, without further proof, be deemed to be a true copy of the judgment, unless the contrary is shown, and

• (b) the original or any copy of a document mentioned in Article 46.2 or 47 of the 1968 Convention shall be admissible as evidence of any matter to which the document relates.

• (2) A document purporting to be a copy of a judgment given by a court of a Contracting State, shall, for the purposes of this Act, be regarded as being duly authenticated if it purports—

• (a) to bear the seal of that court, or

• (b) to be certified by a judge or officer of that court to be a true copy of a judgment given by that court.

• (3) A document shall be admissible as evidence of a translation if—

• (a) it purports to be the translation of—

• (i) a judgment given by a court of a Contracting State other than the State,

• (ii) a document mentioned in Article 46.2, 47 or 50 of the 1968 Convention, or

• (iii) a document containing a settlement referred to in Article 51 of the 1968 Convention or containing an arrangement referred to in Article 10 of the 1996 Accession Convention, and

• (b) it is certified as correct by a person competent to do so.

13 Provisional, including protective, measures.

13.—(1) On application pursuant to Article 24 of the 1968 Convention, the High Court may grant any provisional, including protective, measures of any kind 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 Contracting State other than the State, and

• (b) the subject matter of the proceedings is within the scope of the 1968 Convention as determined by Article 1 (whether or not that Convention has effect in relation to the proceedings).

• (2) On an application under subsection (1), the High Court may refuse to grant the measures sought if, in its opinion, the fact that, apart from this section, that 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 39 of the 1968 Convention, 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 Act, 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.

14 Provision of certain documents by courts in the State to interested parties.

14.—If a judgment is given by a court in the State, the registrar or clerk of that court shall, at the request of an interested party and subject to any conditions that may be specified by rules of court, give to the interested party—

• (a) a duly authenticated copy of the judgment,

• (b) a certificate signed by the registrar or clerk of the court stating—

• (i) the nature of the proceedings,

• (ii) the grounds, pursuant to the 1968 Convention, on which the court assumed jurisdiction,

• (iii) the date on which the time for lodging an appeal against the judgment will expire or, if it has expired, the date on which it expired,

• (iv) whether notice of appeal against, or, if the judgment was given in default of appearance, notice to set aside, the judgment has been entered,

• (v) if the judgment is for the payment of a sum of money, the rate of interest, if any, payable on the sum and the date from which interest is payable, and

• (vi) any other particulars that may be specified by rules of court, and

• (c) if the judgment was given in default of appearance, the original or a copy, certified by the registrar or clerk of the court to be a true copy, of a document establishing that notice of the institution of proceedings was served on the person in default.

15 Domicile for purposes of 1968 Convention and this Part.

15.—(1) In order to determine for the purposes of the 1968 Convention and this Part whether an individual is domiciled in the State, in a place in the State or in a state other than a Contracting State, the following provisions shall apply:

• (a) Part I of the Ninth Schedule, in relation to the text in the English language of the 1968 Convention;

• (b) Part II of the Ninth Schedule, in relation to the text in the Irish language of the 1968 Convention.

• (2) The seat of a corporation or association shall be treated as its domicile and in order to determine for the purposes of Article 53 of the 1968 Convention and this Part whether a corporation or association has its seat in the State, in a place in the State or in a state other than a Contracting State, the following provisions shall apply:

• (a) Part III of the Ninth Schedule, in relation to the text in the English language of the 1968 Convention;

• (b) Part IV of the Ninth Schedule, in relation to the text in the Irish language of the 1968 Convention.

• (3) In order to determine for the purposes of the 1968 Convention and this Part whether a trust is domiciled in the State the following provisions shall apply:

• (a) Part V of the Ninth Schedule, in relation to the text in the English language of the 1968 Convention;

• (b) Part VI of the Ninth Schedule, in relation to the text in the Irish language of the 1968 Convention.

• (4) In this section—

“association” means an unincorporated body of persons;

“corporation” means a body corporate.

16 Venue for certain proceedings in Circuit Court or District Court.

16.—(1) Subject to Title II of the 1968 Convention, the jurisdiction of the Circuit Court respecting proceedings that may be instituted in the State by virtue of Article 2, 8.1, 11, 14 or 16(1)(b) of that Convention shall be exercised by the judge of that 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 respecting proceedings that may be instituted in the State by virtue of Article 14 of the 1968 Convention by a plaintiff domiciled in the State may be exercised as follows:

• (a) in the case of the Circuit Court, by the judge of the Circuit Court for the time being assigned to the circuit where the plaintiff or one of the plaintiffs ordinarily resides or carries on any profession, business or occupation;

• (b) in the case of the District Court, by the judge of the District Court for the time being assigned to the district court district in which the plaintiff or one of the plaintiffs ordinarily resides or carries on any profession, business or occupation.

PART III The Lugano Convention

17 Interpretation of this Part.

17.—(1) For the purposes of this Part, unless the context otherwise requires—

“Contracting State” means a state respecting which the Lugano Convention has entered into force in accordance with Article 61 or 62 of that 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 7 as applied by this section, or

• (b) is made or varied on appeal from a decision of the Master of the High Court under section 7 as applied by this Part or from a decision of the High Court relating to the Master’s decision;

“judgment” means a judgment or order (by whatever name called) that is a judgment for the purposes of the Lugano Convention, and, except in sections 10, 12 and 14 as applied by this Part, includes an instrument or settlement referred to in Title IV of that Convention;

“maintenance” means maintenance within the meaning of the Lugano 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 liable to make payments under the order;

“maintenance order” means a judgment relating to maintenance.

• (2) The Minister for Foreign Affairs may, by order, declare—

• (a) that any state specified in the order is a Contracting State, or

• (b) that—

• (i) a denunciation has been made pursuant to Article 64 of the Lugano Convention,

• (ii) a declaration has been made pursuant to Article Ia, Ib, or IV of Protocol 1, or

• (iii) a communication has been made pursuant to Article 63 of the Lugano Convention or Article VI of Protocol 1.

• (3) The text of a denunciation, declaration or communication referred to in subsection (2)(b) shall be set out in the order declaring that the denunciation, declaration or communication has been made.

• (4) An order that is in force under subsection (2) shall be—

• (a) if made under subsection (2)(a), evidence that any state to which the declaration relates is a Contracting State, and

• (b) if made under subsection (2)(b), evidence that the denunciation, declaration or communication, the text of which is set out in the order, was made and evidence of its contents.

• (5) The Minister for Foreign Affairs may, by order, amend or revoke an order made under subsection (2) or this subsection.

• (6) The definition of “judgment” in subsection (1) shall not be construed to limit the effect of Article 54b of the Lugano Convention.

18 Convention to have force of law.

18.—The Lugano Convention shall have the force of law in the State and judicial notice shall be taken of it.

19 Interpretation of Convention.

19.—(1) Judicial notice shall be taken of relevant decisions delivered by courts of other Contracting States concerning the provisions of the Lugano Convention, and a court shall, when interpreting and applying those provisions, pay due account to the principles laid down in those decisions.

• (2) Judicial notice shall be taken of the report prepared by Mr. P. Jenard and Mr. G. Möller on the Lugano Convention¹, and, when interpreting any provision of that Convention, a court may consider that report and shall give it the weight that is appropriate in the circumstances.

20 Application of certain provisions of Part II.

20.—(1) Sections 7 to 16 apply in relation to the application of the Lugano Convention in the State pursuant to section 18 as they apply in relation to the application, pursuant to section 5, of the Conventions (as defined in section 4) with—

• (a) the modifications set out in subsection (2), and

• (b) any other necessary modifications.

• (2) For the purposes of subsection (1),

• (a) a reference in sections 7 to 16 to a numbered Article or Title of the 1968 Convention shall be construed as a reference to the corresponding Article or Title of the Lugano Convention,

• (b) a reference in sections 7 to 16 to an instrument or settlement shall be construed as a reference to an instrument or settlement referred to in Title IV of the Lugano Convention, and

• (c) a reference in sections 7 to 16 to a term defined in section 17 shall be construed in accordance with that section.

PART IV Amendments and Repeals

21 “Act of 1994”.

21.—In this Part, “the Act of 1994” means the Maintenance Act, 1994.

22 Amendment of Act of 1994.

22.—(1) Section 3 (1) of the Act of 1994 is hereby amended by the substitution of the following definition for the definitions of “the Act of 1988” and “the Act of 1993”:

“‘the Act of 1998’ means the Jurisdiction of Courts and Enforcement of Judgments Act, 1998;”.

• (2) Section 4 (2) of the Act of 1994 (as amended by section 45 (b) of the Family Law Act, 1995, and section 53 (b) of the Family Law (Divorce) Act, 1996) is hereby amended by the substitution of the following paragraph for paragraph (a):

• “(a) For the purposes of section 8 of the Enforcement of Court Orders Act, 1940, the Act of 1976, the Act of 1995, the Act of 1996, the Act of 1998 and this Act, the Central Authority shall have authority to act on behalf of a maintenance creditor or of a claimant, as defined in section 13 (1), and references in those enactments to a maintenance creditor or to such a claimant shall be construed as including references to the Central Authority.”.

• (3) Section 5 of the Act of 1994 is hereby amended by the substitution of “Jurisdiction of Courts and Enforcement of Judgments Act, 1998” for “Jurisdiction of Courts and Enforcement of Judgments Acts, 1988 and 1993”.

• (4) Section 6 of the Act of 1994 is hereby amended—

• (a) in subsection (1) by the substitution of the following definitions for the definitions of “the Brussels Convention”, and “the Lugano Convention” respectively:

“‘the Brussels Convention’ means—

• (a) the 1968 Convention, and

• (b) the Accession Conventions,

as defined in the Act of 1998, and a reference to an Article of the Brussels Convention shall be construed as including a reference to the corresponding Article of the Lugano Convention;”,

“‘the Lugano Convention’ has the meaning assigned to it by the Act of 1998;”,

• (b) in subsection (1) in the definition of “reciprocating jurisdiction”, by the substitution of “the Act of 1998” for “the Acts of 1988 and 1993”, and

• (c) in subsection (2)(a), by the substitution of “the Act of 1998” for “the Acts of 1988 and 1993”.

• (5) Section 7 (1) of the Act of 1994 is hereby amended by the substitution of “in accordance with section 7 of the Act of 1998” for “in accordance with section 5 of the Act of 1988”.

• (6) Section 14 of the Act of 1994 is hereby amended—

• (a) in subsection (1), by the substitution of the following for paragraph (a):

• “(a) if the request is accompanied by an order of a court in a Contracting State (as defined in the Act of 1998), transmit the request to the Master of the High Court for determination in accordance with section 7 of the Act of 1998 and Part II of this Act, and the other provisions of the Act of 1998 shall apply accordingly, with any necessary modifications,”,

• (b) in subsection (2), by the substitution of the following for paragraphs (a) and (b):

• “(a) the order of the District Court shall be deemed to be an enforceable maintenance order as defined in the Act of 1998, and

• (b) sections 8, 9 and 10 of that Act shall apply in relation to that order, with any necessary modifications.”,

and

• (c) by the insertion of the following subsection after subsection (9):

• “(9A) In subsections (1) (a) and (9) a reference to an order of, or made by, a court shall be construed as including a reference to—

  • (a) an instrument or settlement within the meaning of the Brussels Convention as defined in Part II, and

  • (b) an arrangement relating to maintenance obligations concluded with or authenticated by an administrative authority, as referred to in Article 10 of the 1996 Accession Convention as defined in section 2 of the Act of 1998.”.

• (7) Section 20 (1) of the Act of 1994 is hereby amended by the substitution of “the Act of 1998” for “the Act of 1988”.

23 Repeals.

23.—The following are hereby repealed:

• (a) the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988;

• (b) the Jurisdiction of Courts and Enforcement of Judgments Act, 1993;

• (c) sections 7 (7) and 9 to 12 of the Act of 1994.

FIRST SCHEDULE Text of the 1968 Convention as amended by the 1978 Accession Convention, the 1982 Accession Convention, the 1989 Accession Convention and the 1996 Accession Convention¹

CONVENTION

on jurisdiction and the enforcement of judgments in civil and commercial matters

PREAMBLE

THE HIGH CONTRACTING PARTIES TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY,

DESIRING to implement the provisions of Article 220 of that Treaty by virtue of which they undertook to secure the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals;

ANXIOUS to strengthen in the Community the legal protection of persons therein established;

CONSIDERING that it is necessary for this purpose to determine the international jurisdiction of their courts, to facilitate recognition and to introduce an expeditious procedure for securing the enforcement of judgments, authentic instruments and court settlements;

HAVE DECIDED to conclude this Convention and to this end have designated as their Plenipotentiaries:

[Plenipotentiaries designated by the Member States]

WHO, meeting within the Council, having exchanged their full powers, found in good and due form,

HAVE AGREED AS FOLLOWS:

Title I

SCOPE

Article 1

This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.

The Convention shall not apply to:

Title II

JURISDICTION

SECTION 1

General Provisions

Article 2

Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State.

Persons who are not nationals of the State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State.

Article 3

Persons domiciled in a Contracting State may be sued in the courts of another Contracting State only by virtue of the rules set out in Sections 2 to 6 of this Title.

In particular the following provisions shall not be applicable as against them:

—in Belgium: Article 15 of the civil code (Code civil — Burgerlijk Wetboek) and Article 638 of the judicial code (Code judiciaire — Gerechtelijk Wetboek),

—in Denmark: Article 246 (2) and (3) of the law on civil procedure (Lov om rettens pleje),

—in the Federal Republic of Germany: Article 23 of the code of civil procedure (Zivilprozeβordnung),

—in Greece: Article 40 of the code of civil procedure (Kώδικας Πoλιτικής Δικoνoμίας),

—in France: Articles 14 and 15 of the civil code (Code civil),

—in Ireland: the rules which enable jurisdiction to be founded on the document instituting the proceedings having been served on the defendant during his temporary presence in Ireland,

—in Italy: Articles 2 and 4, Nos 1 and 2 of the code of civil procedure (Codice di procedura civile),

—in Luxembourg: Articles 14 and 15 of the civil code (Code civil),

—in Austria: Article 99 of the Law on Court Jurisdiction (Jurisdiktionsnorm),

—in the Netherlands: Articles 126 (3) and 127 of the code of civil procedure (Wetbook van Burgerlijke Rechtsvordering),

—in Portugal: Article 65 (1)(c), Article 65 (2) and Article 65A (c) of the code of civil procedure (Código de Processo Civil) and Article 11 of the code of labour procedure (Código de Processo de Trabalho),

—in Finland: the second, third and fourth sentences of the first paragraph of Section 1 of Chapter 10 of the Code of Judicial Procedure (oikeudenkäymiskaari/rättegångsbalken),

—in Sweden: the first sentence of the first paragraph of Section 3 of Chapter 10 of the Code of Judicial Procedure (rättegångsbalken),

— in the United Kingdom: the rules which enable jurisdiction to be founded on:

• (a) the document instituting the proceedings having been served on the defendant during his temporary presence in the United Kingdom; or

• (b) the presence within the United Kingdom of property belonging to the defendant; or

• (c) the seizure by the plaintiff of property situated in the United Kingdom.

Article 4

If the defendant is not domiciled in a Contracting State, the jurisdiction of the courts of each Contracting State shall, subject to the provisions of Article 16, be determined by the law of that State.

As against such a defendant, any person domiciled in a Contracting State may, whatever his nationality, avail himself in that State of the rules of jurisdiction there in force, and in particular those specified in the second paragraph of Article 3, in the same way as the nationals of that State.

SECTION 2

Special Jurisdiction

Article 5

A person domiciled in a Contracting State may, in another Contracting State, be sued:

• (a) has been arrested to secure such payment,

or

• (b) could have been so arrested, but bail or other security has been given;

provided that this provision shall apply only if it is claimed that the defendant has an interest in the cargo or freight or had such an interest at the time of salvage.

Article 6

A person domiciled in a Contracting State may also be sued:

Article 6a

Where by virtue of this Convention a court of a Contracting State has jurisdiction in actions relating to liability from the use or operation of a ship, that court, or any other court substituted for this purpose by the internal law of that State, shall also have jurisdiction over claims for limitation of such liability.

SECTION 3

Jurisdiction in Matters Relating to Insurance

Article 7

In matters relating to insurance, jurisdiction shall be determined by this Section, without prejudice to the provisions of Article 4 and 5.5.

Article 8

An insurer domiciled in a Contracting State may be sued:

An insurer who is not domiciled in a Contracting State but has a branch, agency or other establishment in one of the Contracting States shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.

Article 9

In respect of liability insurance or insurance of immovable property, the insurer may in addition be sued in the courts for the place where the harmful event occurred. The same applies if movable and immovable property are covered by the same insurance policy and both are adversely affected by the same contingency.

Article 10

In respect of liability insurance, the insurer may also, if the law of the court permits it, be joined in proceedings which the injured party had brought against the insured.

The provisions of Articles 7, 8 and 9 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted.

If the law governing such direct actions provides that the policy-holder or the insured may be joined as a party to the action, the same court shall have jurisdiction over them.

Article 11

Without prejudice to the provisions of the third paragraph of Article 10, an insurer may bring proceedings only in the courts of the Contracting State in which the defendant is domiciled, irrespective of whether he is the policy-holder, the insured or a beneficiary.

The provisions of this Section shall not affect the right to bring a counterclaim in the court in which, in accordance with this Section, the original claim is pending.

Article 12

The provisions of this Section may be departed from only by an agreement on jurisdiction:

Article 12a

The following are the risks referred to in Article 12.5:

• (a) sea-going ships, installations situated offshore or on the high seas, or aircraft, arising from perils which relate to their use for commercial purposes;

• (b) goods in transit other than passengers’ baggage where the transit consists of or includes carriage by such ships or aircraft;

• (a) arising out of the use or operation of ships, installations or aircraft as referred to in 1. (a) above in so far as the law of the Contracting State in which such aircraft are registered does not prohibit agreements on jurisdiction regarding insurance of such risks;

• (b) for loss or damage caused by goods in transit as described in 1.(b) above;

SECTION 4

Jurisdiction over Consumer Contracts

Article 13

In proceedings concerning a contract concluded by a person for a purpose which can be regarded as being outside his trade or profession, hereinafter called ‘the consumer’, jurisdiction shall be determined by this Section, without prejudice to the provisions of Articles 4 and 5.5, if it is:

• (a) in the State of the consumer’s domicile the conclusion of the contract was preceded by a specific invitation addressed to him or by advertising; and

• (b) the consumer took in that State the steps necessary for the conclusion of the contract.

Where a consumer enters into a contract with a party who is not domiciled in a Contracting State but has a branch, agency or other establishment in one of the Contracting States, that party shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.

This Section shall not apply to contracts of transport.

Article 14

A consumer may bring proceedings against the other party to a contract either in the courts of the Contracting State in which that party is domiciled or in the courts of the Contracting State in which he is himself domiciled.

Proceedings may be brought against a consumer by the other party to the contract only in the courts of the Contracting State in which the consumer is domiciled.

These provisions shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.

Article 15

The provisions of this Section may be departed from only by an agreement:

SECTION 5

Exclusive Jurisdiction

Article 16

The following courts shall have exclusive jurisdiction, regardless of domicile:

• (b) however, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the Contracting State in which the defendant is domiciled shall also have jurisdiction, provided that the landlord and the tenant are natural persons and are domiciled in the same Contracting State;

SECTION 6

Prorogation of Jurisdiction

Article 17

If the parties, one or more of whom is domiciled in a Contracting State, have agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction. Such an agreement conferring jurisdiction shall be either:

• (a) in writing or evidenced in writing; or

• (b) in a form which accords with practices which the parties have established between themselves; or

• (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

Where such an agreement is concluded by parties, none of whom is domiciled in a Contracting State, the courts of other Contracting States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.

The court or courts of a Contracting State on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between these persons or their rights or obligations under the trust are involved.

Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to the provisions of Articles 12 or 15, or if the courts whose juridiction they purport to exclude have exclusive jurisdiction by virtue of Article 16.

If an agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention.

In matters relating to individual contracts of employment an agreement conferring jurisdiction shall have legal force only if it is entered into after the dispute has arisen or if the employee invokes it to seise courts other than those for the defendant’s domicile or those specified in Article 5.1.

Article 18

A part from jurisdiction derived from other provisions of this Convention, a court of a Contracting State before whom a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered solely to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 16.

SECTION 7

Examination as to Jurisdiction and Admissibility

Article 19

Where a court of a Contracting State is seised of a claim which is principally concerned with a matter over which the courts of another Contracting State have exclusive jurisdiction by virtue of Article 16, it shall declare of its own motion that it has no jurisdiction.

Article 20

Where a defendant domiciled in one Contracting State is sued in a court of another Contracting State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of the Convention.

The court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.

The provisions of the foregoing paragraph shall be replaced by those of Article 15 of the Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters, if the document instituting the proceedings or notice thereof had to be transmitted abroad in accordance with that Convention.

SECTION 8

Lis Pendens — Related Actions

Article 21

Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.

Article 22

Where related actions are brought in the courts of different Contracting States, any court other than the court first seised may, while the actions are pending at first instance, stay its proceedings.

A court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the law of that court permits the consolidation of related actions and the court first seised has jurisdiction over both actions.

For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.

Article 23

Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court.

SECTION 9

Provisional, including Protective Measures

Article 24

Application may be made to the courts of a Contracting State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Convention, the courts of another Contracting State have jurisdiction as to the substance of the matter.

Title III

RECOGNITION AND ENFORCEMENT

Article 25

For the purposes of this Convention, ‘judgment’ means any judgment given by a court or tribunal of a Contracting State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.

SECTION 1

Recognition

Article 26

A judgment given in a Contracting State shall be recognized in the other Contracting States without any special procedure being required.

Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Title, apply for a decision that the judgment be recognized.

If the outcome of proceedings in a court of a Contracting State depends on the determination of an incidental question of recognition, that court shall have jurisdiction over that question.

Article 27

A judgment shall not be recognized:

Article 28

Moreover, a judgment shall not be recognized if it conflicts with the provisions of Sections 3, 4 or 5 of Title II, or in a case provided for in Article 59.

In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the State of origin based its jurisdiction.

Subject to the provisions of the first paragraph, the jurisdiction of the court of the State of origin may not be reviewed; the test of public policy referred to in Article 27.1 may not be applied to the rules relating to jurisdiction.

Article 29

Under no circumstances may a foreign judgment be reviewed as to its substance.

Article 30

A court of a Contracting State in which recognition is sought of a judgment given in another Contracting State may stay the proceedings if an ordinary appeal against the judgment has been lodged.

A court of a Contracting State in which recognition is sought of a judgment given in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the State of origin, by reason of an appeal.

SECTION 2

Enforcement

Article 31

A judgment given in a Contracting State and enforceable in that State shall be enforced in another Contracting State when, on the application of any interested party, it has been declared enforceable there.

However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland, or in Northern Ireland when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.

Article 32

—in Belgium, to the tribunal de première instance or rechtbank van eerste aanleg,

—in Denmark, to the byret,

—in the Federal Republic of Germany, to the presiding judge of a chamber of the Landgericht,

—in Greece, to the Moνoμελές Πρωτoδικεío,

—in Spain, to the Juzgado de Primera Instancia,

—in France, to the presiding judge of the tribunal de grande instance,

—in Ireland, to the High Court,

—in Italy, to the corte d'appello,

—in Luxembourg, to the presiding judge of the tribunal d'arrondissement,

—in Austria, to the Bezirksgericht,

—in the Netherlands, to the presiding judge of the arrondissementsrechtbank,

—in Portugal, to the Tribunal Judicial de Círculo,

—in Finland, to the Käräjäoikeus/tingsrätt,

— in Sweden, to the Svea hovrätt,

—in the United Kingdom:

Article 33

The procedure for making the application shall be governed by the law of the State in which enforcement is sought.

The applicant must give an address for service of process within the area of jurisdiction of the court applied to. However, if the law of the State in which enforcement is sought does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem.

The documents referred to in Articles 46 and 47 shall be attached to the application.

Article 34

The court applied to shall give its decision without delay; the party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.

The application may be refused only for one of the reasons specified in Articles 27 and 28.

Under no circumstances may the foreign judgment be reviewed as to its substance.

Article 35