Status of Digitalisation of ESCP Enforcemnt Procedures
At present in Ireland, enforcement of the ESCP judgements cannot be initiated electronically. Nevertheless, Rule 3 of Order 53B refers to the possibility of electronic filing of documents in the general framework of the ESCP proceedings. Therefore, electronic filing of any document – in the context of the ESCP – is valid provided that the sender is satisfied that the electronic communication has been delivered to the intended recipient. Otherwise, the electronic filing will not be considered by the enforcement authorities and the document must be resend within the specified timeframe. Further, Sub-rule 2 of Rule 3 highlights that the lack of a manuscript signature on the documents that have been filed electronically cannot be question the validity of that document.
ESCP Procedural Aspects
1. Competent Enforcement Authority
In Ireland, the County Registrars deal with enforcement of the ESCP judgements. In Cork and Dublin – the two largest cities in Ireland – the Sheriff performs the same role for the execution of judgements. Pursuant to Article 16 of Order 53B, the enforcement of the ESCP judgements (also court settlements) is governed by the provisions of Order 51 and Order 51A which are also applicable to the judgements of District Courts.
2. Rules on Service
As regards the service of documents in enforcement of the ESCP judgements, Rule 3 of Order 51A refers to the summons for attendance of the debtor and the statutory declaration:
‘‘(1) When a debt is due on foot of a judgment of a competent court and the creditor requires the attendance of the debtor before the Court for examination as to the debtor’s means under section 15 (as substituted by section 1(1) of the 1986 Act) of the 1926 Act, the creditor may proceed in accordance with this rule.
(2) The creditor or the creditor’s solicitor may lodge with the Clerk in duplicate for issue a summons in the Form 51A.01 Schedule C and the statutory declaration (in the Form 51A.03 Schedule C, modified as appropriate) required by section 15(2) of the 1926 Act.
(3) The Clerk must enter a return date on the summons and list the matter for hearing.
(4) The creditor must serve the summons on the debtor.
(5) The summons must be served on the debtor in a manner prescribed in Order 41 at least 14 days or, if service is by registered post, at least 21 days, before the return date.
(6) The original of the summons, and a statutory declaration of service of the summons, must be filed with the Clerk at least four days before the return date.’’
3. Language of the Certificate and Documents to be Appended
The standard Form D and a copy of the judgement are only accepted in English or Irish, the official languages of Ireland.
4. Enforcement Fees
In Ireland, the fees for the execution of judgements to recover debts depend on the complexity of the case, the adopted enforcement measures, also the nature and value of the assets to seize. The fees are to be initially paid by the creditor to Sheriff/County Registrar via bank transfer, cheque, or using any other permitted means of payment. However, upon successful enforcement of the judgement this amount will be refunded to the creditor.
In the case of enforcing an ESCP judgement, there are two major factors that determine the enforcement costs: a) Stamp duty on court documents; and b) Sheriff’s fees.
As regards the latter, the fees are governed by Sheriffs’ Fees and Expenses Order 2005. Section 3 (1) of this Order stipulates that ‘Sheriff’ in this legislation also includes the ‘Country Registrar’. Thus, the enforcement fees for ESCP judgments are also applicable to the cases where the execution is conducted by a County Registrar in Ireland.
It should be noted that under this Order, any additional costs incurred by the Sheriff during the execution phase is added to the total costs of enforcement. The Schedule to Sheriffs’ Fees and Expenses Order 2005 can be found here: https://www.irishstatutebook.ie/eli/2005/si/644/made/en/print
5. Refusal, Stay, or Limitation of Enforcement Procedures
Within the framework of Article 23 of the ESCP Regulation (on limitation or stay of enforcement procedures), in Ireland, District Courts retain jurisdiction in dealing with applications for refusal, stay or limitation of enforcement of ESCP judgements.
Pursuant to Rule 17 (1) of Order 53B: ‘‘Where enforcement of a judgment or court settlement given in the Euro-
pean Small Claims Procedure in a Member State other than the State under
these Rules is sought in accordance with rule 16, the party against whom
enforcement is sought may apply to the Court for an order refusing enforcement
on the basis of the provisions of Article 22(1) of the EU Regulation, or for an
order staying or limiting enforcement on the basis of the provisions of Article
23 of the EU Regulation.’’
The party against whom the enforcement is sought must submit the Notice of Motion (Form 53B.02 Schedule C) to the Court specifying the alleged grounds in Article 22 (1) of the ESCP Regulation for refusal of the enforcement procedure (Rule 17 (2), Order 53B). The Court will dismiss the request unless satisfied as to the urgency of the application. According to Rule 17 (3) of Order 53B, where the Court grants permission for refusal, stay or limitation of enforcement procedure: ‘‘…a copy of the notice of motion must be served by the respondent:
(a) not later than seven days before the return date of the motion, on the claimant and
(b) on such other persons as the Court directs.’’
The existence of the specific rules in Order 53B provides a useful framework for a more effective implementation of the ESCP Regulation in Ireland. Moreover, the Courts Service Website in Ireland provides the citizens with an opportunity to use an informative online search directory to get access to the relevant forms (in the context of national procedural rules) to be used in the ESCP related proceedings.
On the other end, with respect to the enforcement of ESCP judgements, the current measures in Ireland still need to be further improved. First, the existing information on the published EU e-Justice Portal are not sufficient to provide (especially foreign) creditors with consistent and clear information regarding the rules on ESCP enforcement under the national procedural rules. Second, although one of the main objectives of the ESCP is to be used as a DIY debt recovery procedure, it is still difficult for lay citizens to find the appropriate local enforcement authority to initiate with the enforcement procedure. Third, the enforcement rules are still too complicated for the (self-represented) creditors which forces them to hire local lawyers to proceed with the enforcement procedure.
Above all, this study suggests the full digitalization of the ESCP enforcement procedures and creation of an interactive, simplified, and user-friendly roadmap (integrated into the Irish Court Service Website) can tackle most of the recurring issues faced by the creditors and encourage more use of this Regulation by consumers.
The Law of S.I. No. 17 of 2014 on Execution and Enforcement of Judgements <https://www.courts.ie/rules/execution-and-enforcement-judgments-si-no-17-2014> accessed 20 July 2022.
Pablo Cortes, ‘Does the Proposed European Procedure Enhance the Resolution of Small Claims?’ 2008 (27) Civil Justice Quarterly 83.
This Form can be downloaded from the Courts Service Website: <https://www.courts.ie/content/forms-civil-proceedings> accessed 22 July 2022.