The Gazette 1989

GAZETTE

MARCH 1989

of proceedings on the party making the application together with the name and usual or last known address or place of business of the person against whom judgment was given and it should state the grounds on which the right to enforce the judgment is vested in the party making the application. If the judgment which the applicant seeks to enforce or any other document required for its enforcement is not in one of the official languages of the State Order 42(a), Rule 17 provides that:- "a translation thereof into the Irish or English language certified by a person competent and qualified for the purpose in one of the Con- tracting States, shall be admissible as evidence of same. The compet- ence and qualifications of the translator shall be verified by affidavit". If enforcement is ordered by the Master, notice of the enforcement order should be served on the defendant. Order 42(a), Rule 10 sets out the requirements for such notice. The notice should inform the party against whom enforce- ment has been ordered of the particulars of the judgment, the name and address of the applicant, the protective measures (if any) which have been granted, and of his right to appeal together with the time limit within which he must appeal if he wishes to do so. The procedure for appeal against an enforcement order, as provided for by Article 36 of the Convention is set out in Order 42(a), Rules 11 to 14. Rule 11 provides that the person against whom an order for enforcement is made may appeal to the High Court within one month of service of the enforcement order. Rule 12 provides that in the case of a refusal by the Master of an order for enforcement the applicant may appeal to the High Court within five weeks from the date of perfection

of the Master's Order. Rule 14 pro- vides for an appeal to the Supreme Court from a decision of the High Court either granting or refusing an order for enforcement, on a point of law only. A judgment in respect of which an order for enforcement has been made may not be executed until the time for appeal has expired (Order 42(a), Rule 13), but Article 39 of the Convention allows protective measures to be taken during the time specified for an appeal and provides that:- "The decision authorising enforcement shall carry with it the power to proceed to any such protective measures". Section 11 (3) of the 1988 Act confirms that the Master of the High Court shall grant the pro- tective measures mentioned in Article 39 when requested, as soon as the enforcement order is made. These protective measures are designed to ensure the continued protection of the applicant's interests by preventing the party against whom enforcement is sought from disposing of his assets as soon as he gets notice of the enforcement order. When the party seeking enforcement is also seek- ing protective measures, such application should be included in the application for enforcement. (Order 42(a), Rule 5). The Master of the High Court has no discretion in relation to the granting of protective measures. Once he has made an enforcement order and is satisfied that the High Court has power to grant the protective measures sought he is obliged to grant the protective measures which are requested by the applicant in his affidavit. This was confirmed by Miss Justice Carroll in an unre- ported High Court judgment delivered on the 2nd of February, 1989 in fhe case of Elwyn (Cot- tons) Ltd. -v- Pearle Designs Ltd. Once any appeal has been decided or the time for appealing has ex- pired, Section 6 of the Act provides that the judgment will have the same force and effect and be en- forceable in the same way as if it were a judgment of the High Court. Order 42(a), Rule 16 provides that an application for the enforce- ment of an authentic instrument or court settlement should be made, in the first instance, ex parte to a Judge of the High Court and not to the Master.

Master of the High Court and shall be determined by him by order (including an order for the recognition or enforcement of a judgment in part only) in accord- ance with the Conventions". Article 31 of the Convention pro- vides that such an application may be made by any interested party. The new Order 42(a) which has been inserted after Order 42, pro- vides the procedure for enforce- ment. The applicant should make an ex-parte application to the Master of the High Court for an order that the judgment be enforced in the State (Order 42(a), Rule 4). The fact that the applica- tion is to be made ex parte gives it an element of "surprise", which is designed to protect the interests of the applicant by depriving the party against whom enforcement is sought of the opportunity of disposing of his assets prior to the making of the enforcement order. The application is grounded on an affidavit in which the following documents set out in Rule 5 should be exhibited:- "(1) The judgment which is sought to be enforced or a certified or otherwise duly authenticated copy thereof; (2) In the -case of a judgment given in default, the original or a certified copy of the document which establishes that the party in default was served with the document or documents institut- ing the proceedings or with an equivalent document or documents in sufficient time to enable him to arrange for his defence. (3) Documents which establish that, according to the law of the state in which it has been given, the judgment is enforceable and has been served; (4) Where appropriate, a document showing that the applicant is in receipt of legal aid in the state in which the judgment was given;" The affidavit should be drafted in accordance with Rule 6 which requires that the affidavit should state whether the judgment provides for the payment of a sum or sums of money and, if so, whether or not there is interest due and whether any part of the debt has been satisfied. It also requires that the affidavit should give an address within the State for service

Handwriting & Subject Document Analysis

Michael Rasnmssen, Mayanncor Ltd., 19, Woodside, Rathnew, Co. Wicklow. Telephone: 0404-69474

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