The Jurisdiction of Courts and Enforcement of Judgments Bill, 1998, has two main objectives. First, it will enable Ireland to ratify the Accession Convention of Austria, Finland and Sweden to the 1968 Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the associated Protocol on the interpretation of that Convention by the European Court of Justice. Second, it will consolidate the provisions of the Jurisdiction of Courts and Enforcement of Judgments Acts, 1988 and 1993. In the course of that consolidation, the opportunity is being taken to make minor procedural adjustments to the legislation. Otherwise, the legislative machinery which has been in force since 1988 is being retained. While the extent of the Schedules to the Bill might suggest otherwise, the concept underlying the 1968 Judgments Convention is very simple. It is the provision of speedy and informal procedures for enabling judgments in one member state to be recognised and enforced in each of the other member states. The Lugano Convention, which is also the subject of this consolidating legislation, parallels the 1968 Convention and fulfils the same purpose in relation to the enforcement of judgments between EU member states and three states which are members of the European Free Trade Association — Iceland, Norway and Switzerland. The fundamental principle underlying both conventions is the creation of a common body of rules which govern the jurisdiction of the courts in a broad range of civil and commercial matters both in EU member states and members of the European Free Trade Association. This common body of rules is accompanied by a system whereby the relevant judgments in such civil and commercial matters are, by and large, subject to almost automatic enforcement.
The 1968 Convention was drawn up pursuant to an obligation under Article 220 of the EEC Treaty for member states to enter into negotiations with each other to simplify the formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals. Its effect was limited to civil and commercial matters and it entered into force between the six original member states on 1 February, 1973. Subsequently, a separate Protocol on interpretation of the Convention by the European Court of Justice was drawn up and this entered into force in 1975. Accession to the convention and its Protocol is a requirement of membership and, in consequence, a series of accession conventions has resulted in minor modifications of those original instruments as new member states have joined the Union. In 1978, there was the Accession Convention for Ireland, Denmark and the UK. In 1982, there was such a convention for Greece. In 1989, there was one for Spain and Portugal and most recently there was the 1996 Accession Convention for Austria, Finland and Sweden. The intention is that this convention will be ratified by the State as soon as is practicable, following the passage of this legislation.
The text of the 1968 Convention as amended by the 1978, 1982, 1989 and 1996 Accession Conventions is now in the form of a consolidated text which was published in the Official Journal of the European Communities on 26 January, 1998. Although the 1968 Convention has been in force in the State for ten years, it is a somewhat technical measure which may be more familiar to the legal practitioner than anyone else. Therefore, it is worth setting out some of the main features of the convention, as amended by the subsequent Accession Conventions.
Its main object is to simplify legal formalities in the civil and commercial areas. The scope of the convention is set out in Article 1. That Article provides that it is to apply to civil and commercial matters, but not to judgments concerning the status or legal capacity of natural persons, matrimonial property, wills, succession, bankruptcy, arbitration, social security, revenue, customs or administrative matters. The convention does not cover criminal matters. Also, certain matters relating to status — for example divorce — are excluded from the scope of this convention. However, in this context I wish to mention that at EU level, negotiations on a draft Convention on jurisdiction, recognition and enforcement of judgments in matrimonial matters are close to finalisation. When finalised, this measure will, in broad terms, extend the principles of the 1968 Convention to encompass the recognition of divorces, judicial separations and annulments on an EU-wide basis.
The jurisdictional rules of the convention are set out in Title II, in particular Articles 2 to 18 therein. As to the grounds on which jurisdiction may be assumed under the Convention, the main ground, set out in Article 2, is that a person domiciled in a contracting state is sued in the courts of that state. In this connection, I point out that the meaning of "domicile" under the conventions is roughly equivalent to ordinary residence. The term does not have the more particularised meaning which generally applies under Irish law. Within the Bill, provisions relating to domicile are contained in section 15 and in the Ninth Schedule.
There are a limited number of grounds on which recognition and enforcement of a judgment can be refused. The main grounds for refusal to recognise a judgment are where it would be contrary to public policy to do so or where the defendant was not made aware of the proceedings against him or her.
Special provision is made for individual litigants in areas such as insurance and consumer contracts and also in matters relating to maintenance. In these areas the plaintiff is the acknowledged weaker party and so he or she may commence proceedings in the country where he or she is domiciled. That is an exception to the general principle that proceedings must be instituted in the country where the defendant is domiciled. Other exceptions of this kind occur in matters relating to a contract — where a person may be sued in the courts for the place of performance of the obligation in question — and in tort cases, where a person may be sued in the courts for the place where the harmful event occurred.
It is an unfortunate fact of modern living that ever-increasing travel and mobility can bring more and more pressures on family life and can, where marriages have broken down, see individual family members living in different countries. In this regard the enforcement of foreign maintenance judgments will strike most people as being of particular importance.
The passing into law of the Judgments Acts, which we are now consolidating, meant that Irish maintenance orders could be recognised and enforced in all EU and EFTA countries which were parties to the 1968 and Lugano Conventions. However, while the simplified enforcement mechanisms were available to the maintenance creditor, he or she had to travel to or engage a lawyer in the country concerned in order to secure enforcement of the maintenance judgment. Under the Maintenance Act, 1994, a central authority now functions which is concerned with the recovery of maintenance and acts on behalf of maintenance creditors who wish to have a maintenance order enforced where the maintenance debtor is living in another country.
The provisions of the 1994 Act mean that it is no longer necessary for Irish maintenance creditors to initiate enforcement proceedings themselves in the relevant member states. Instead, they simply apply to the central authority for assistance in having their maintenance order recognised and enforced. The central authority deals with incoming and outgoing applications, assists with documentation, locating the whereabouts of debtors and aims to ensure that moneys due are duly paid over.
There is a small procedural change introduced in the Bill that is relevant to the area of maintenance. This change in procedure relates to applications for the enforcement of authentic instruments and settlements. Instruments are a feature of the law in some Scandinavian and continental jurisdictions and usually provide for the enforcement of financial obligations without the need to have recourse to the courts. Settlements are a feature of Dutch and German law. They are approved by a court and are enforceable without further formality. At present applications for the enforcement of such instruments and settlements must go to the High Court. However, to simplify matters, I am providing in the Bill for the applications for enforcement of such instruments and settlements to be directed to the Master of the High Court.
Another matter of note in relation to maintenance is that the 1996 Accession Convention inserts a new article — Article 5(e) — into the Protocol to the 1968 Convention, providing that arrangements relating to maintenance obligations concluded with administrative authorities or authenticated by them shall be regarded as authentic instruments under the 1968 Convention. Under the Bill, these maintenance arrangements may also be enforced via the office of the Master of the High Court.
The Bill re-enacts the existing provisions of the Judgments Acts, 1988 to 1993, as adjusted to incorporate the Accession Convention for Austria, Finland and Sweden. For convenience of reference, there are set out in Schedules to the Bill the new consolidated text of the 1968 Convention and the 1971 Protocol in both the English and Irish languages. Also set out are the key provisions of the four Accession Conventions and the text of the Lugano Convention and its Protocol.
Section 1 is a standard provision in legislation of this nature and it provides that the Bill will be brought into operation on a date or dates to be fixed by order and that different parts may be brought in at different times. In respect of the 1996 Accession Convention, which involves Austria, Finland and Sweden, it will be necessary for one of those three countries to have deposited its instrument of ratification before that Convention can enter into force.
Part II of the Bill is concerned with the 1968 Convention and the subsequent Accession Conventions. Under section 5 these conventions are to have the force of law in the State. Thus, the courts are considered to know of their provisions without the requirement to have them proven in evidence. There is also an identical provision in respect of the Lugano Convention in section 18 of the Bill.
The 1971 Protocol gave jurisdiction to the Court of Justice of the European Communities to interpret the 1968 Convention and to give rulings thereon. Section 6 provides that, arising from that jurisdiction, judicial notice shall be taken of the rulings and opinions of the European Court of Justice on the conventions. The section also provides that judicial notice shall be taken of the Explanatory Reports on the Accession Conventions. The report in respect of the recent accession of Austria, Finland and Sweden is not yet available, but I would hope that it will be possible to bring forward a suitable amendment to the Bill should the report become available in the near future.
Section 7 provides that applications for the enforcement of judgments are to be made to the Master of the High Court. To facilitate speedy enforcement procedures, the Bill extends the definition of judgments, where appropriate, to include authentic instruments and settlements and arrangements relating to maintenance obligations, which are common in continental jurisdictions, so that these measures too can be enforced via the office of the Master of the High Court rather than via the High Court itself which is the case at present.
Section 8 deems convention judgments in respect of which an enforcement order has been made to be of the same force and effect as a judgment of the High Court. However, the overwhelming majority of maintenance orders will fall to be enforced by the District Court under section 9. This allows the maintenance creditor to avail of the administrative machinery for the enforcement of maintenance orders which is well established at District Court level.
Section 10 provides for the payment of interest on judgments and for the payment of costs. Section 11 provides, where the need arises, for fixing the currency and rate of exchange which should apply in the case of enforceable maintenance orders.
Under section 13 the High Court is empowered to grant any provisional, including protective, measures which are normally available to it even if the substantive matter of the case falls to be heard by the courts of another state which is a contracting party to the 1968 Convention. The measure most likely to be applied for would be an injunction to restrain a defendant transferring assets out of this jurisdiction so as to defeat any future judgment that might be given against him or her.
Part III of the Bill makes the relevant provisions of this legislation applicable to the Lugano Convention, which governs enforcement of judgments between EU and EFTA member states. As I mentioned, the Lugano Convention mirrors the provisions of the Judgments Convention. It is possible for a state which is not yet a member of the EU or EFTA to accede to the Lugano Convention provided it is sponsored by a State which is such a member. Such accession requires the unanimous agreement of all the contracting parties. It is likely that Poland will be acceding to the Lugano Convention on the basis of these arrangements in the near future. Furthermore, as additional countries apply for membership of the EU, I would expect that accessions of this nature will become more commonplace.
Part IV of the Bill makes certain amendments to the Maintenance Act, 1994, which are necessitated by this Bill and repeals the Judgments Acts, 1988 and 1993.
Although this is a technical Bill, its effects have day to day significance for many people. As a consolidating measure it will be of benefit in simplifying this somewhat complex area of the law, both for the practitioner and anyone else who has reason to use this legislation. I commend the Bill to the House.