Dáil Éireann - Volume 494 - 07 October, 1998

Jurisdiction of Courts and Enforcement of Judgments Bill, 1998 [ Seanad ]: Second Stage.

Acting Chairman: For the information of Members, the speeches of each Minister and the spokespersons of Fine Gael and the Labour Party shall not exceed 30 minutes.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): I move: “That the Bill be now read a Second Time.” The Bill is primarily a consolidating measure which amalgamates the Jurisdiction of Courts and [1234] Enforcement of Court Judgments Acts. It also involves consequential adjustments to the Maintenance Act, 1994. A further element which attaches to it is that it will enable the State to ratify a convention of 1996 on the accession of Austria, Finland and Sweden to the Convention and Protocol on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels in 1968. Apart from a minor procedural amendment to the existing legislation, the only other adjustments being made arise as a result of technical changes required by the 1996 Accession Convention.

The Acts of 1998 and 1993 gave the force of law in the State to the 1968 Convention on the Recognition and Enforcement of Judgments as amended by the various conventions covering the accession of new member states. The 1968 convention was of far reaching importance, providing and setting up procedures for the recognition and enforcement of civil and commercial judgments of the various member states of the European Communities, now termed the European Union. The Acts also gave the force of law to the 1971 Protocol on the Interpretation of the Convention by the European Court of Justice, and the 1993 Act made provision for the Lugano Convention of 1988 and its Protocol to have the force of law in the State. The Lugano Convention runs parallel to the 1968 Judgments Convention and provides for similar recognition and enforcement procedures as are contained in the 1968 convention. However, it is only concerned with the enforcement of judgments as between EU member states and states which are members of the European Free Trade Association, EFTA.

Before outlining, in a general way, the main features of the measure we are discussing, I should like first to deal with the background to the 1968 convention and to the Lugano Convention and to touch upon some of the key provisions in those instruments. These conventions provide speedy and informal procedures for enabling judgments given in one participating State to be recognised and enforced in each of the other participating States. More fundamentally, the conventions prescribe jurisdictional rules which determine the court in each State which is competent to rule on an action. Normally, a defendant is to be sued in his or her country of domicile, which, in this context, usually means the country in which he or she ordinarily resides. However, in certain cases, a person can take proceedings in his or her own country against a person domiciled in another contracting State, instead of having to sue that person in the country in which they reside.

In the case of both conventions, Article 1 sets out their scope. They apply in civil or commercial matters, whatever the nature of the court or tribunal. However, they do not extend to criminal matters. They do not apply to revenue, customs or administrative matters. Excluded too are wills and succession, bankruptcy, social security and arbitration. Furthermore, the conventions do not [1235] apply to the status or legal capacity of natural persons, to actions such as divorce, for example, nor do they extend to rights in property arising out of a matrimonial relationship.

In this context, I am pleased that, along with the other EU member states, on 28 May 1998 Ireland signed a convention on jurisdiction and enforcement of judgments in matrimonial matters, following negotiations over a number of years at EU level. That convention is concerned with judgments in the area of divorce, legal separation and annulment, as well as custody and access matters. When finally adopted by Ireland, a process which will require legislation, judgments given in accordance with its jurisdiction rules will be entitled to recognition and enforcement in all EU member states. There is an associated protocol to the convention providing for its interpretation by the Court of Justice of the European Communities, which has also been signed by the State.

Returning to the 1968 convention and to the Lugano Convention, Titles II — Articles 2 to 24 — contain, for the most part, jurisdictional criteria. These articles specify comprehensive rules which serve to determine the court vested with jurisdiction. The importance of this is that, with a few exceptions, an enforcing court in another member state is obliged to accept the jurisdictional competence of the court which gave the original judgment. Because of this, enforcement of a judgment given in one member state is virtually automatic in each of the other member states.

Domicile is the connecting factor under the conventions to link a person with a contracting state for purposes of grounding jurisdiction. In this context, however, the term does not have the strict legal meaning which it normally has under Irish law. Instead, for convention purposes, domicile is equated with ordinary residence. The provisions of the Ninth Schedule to the Bill deal with this matter. I will refer further to this when I outline the main provisions of the Bill.

There are a number of exceptions to the general rule providing that a person domiciled in a state is to be sued in the courts of that state. For instance, in matters relating to a contract, a person may be sued in the courts for the place of performance of the obligation in question, and in matters relating to a tort, for example, defamation, a person may be sued in the courts for the place where the harmful event occurred.

Under the conventions, there are a small number of grounds on which a judgment may not be recognised. They include, where recognition would be contrary to public policy in the state where such recognition is sought, or where the judgment is irreconcilable with one given in a dispute between the same parties in that state.

The origins of the 1968 convention are to be found in the Treaty of Rome. Under Article 220 of the treaty, member states were asked to secure “the simplification of formalities governing the [1236] reciprocal recognition and enforcement of judgments of courts or tribunals”. This reflects the fact that respect for the law in society depends to no small extent on the existence of effective means of enforcement. While this has particular resonance in the area of criminal law, it also applies in the civil law arena where, for example, the ability to enforce money judgments may be of crucial importance to the survival of a business or enterprise.

One very useful aspect of the conventions which strengthens enforcement mechanisms is the provision which allows recourse to the courts of any of the contracting states to seek provisional or protective measures, although the substance of the case falls to be heard by the courts of a different contracting state. For example, a plaintiff in Germany who is taking proceedings against a defendant in Germany under the conventions could apply for an injunction in the courts of another contracting state which would have the effect of freezing any assets that defendant might have in that state. In consequence when judgment was given, the German plaintiff could secure effective enforcement in the other state, if the defendant had insufficient assets in Germany to meet the judgment.

The criteria to be applied in deciding whether to grant such reliefs are a matter for a state's internal law. In addition, the legislation here provides that a court need not grant such measures if it considers it inexpedient to do so. The conventions also provide that a person is automatically entitled to obtain protective measures once a court has authorised the enforcement of a judgment.

I should like to emphasise that at the heart of the conventions lies a very simple concept. It is the provision of speedy and informal procedures to allow judgments in one participating state to be enforced in another participating state.

While this Bill is a technical one, the enforcement of judgments does have increasing relevance to the lives of people in the state and it will have an ever increasing relevance as there is greater mobility of people and greater commercial interaction between this State and other states which are parties to the conventions. From time to time, people will find the need to bring legal proceedings outside the state or if they bring them in our own courts, they may need to seek to enforce judgments granted by those courts in other states.

I now turn to some of the details of the Bill. Part 1, sections 1, 2 and 3, sets out the short title, commencement and standard interpretation provisions, as well as the Schedules to the Bill. The Bill will be brought into force by ministerial order and section 1 makes provision for different parts to be brought into operation at different times. As the primary purpose of this measure is to enable us to ratify the 1996 Accession Convention in respect of Austria, Finland and Sweden, the commencement order will not be made until Ireland has ratified that convention. As of now, [1237] three countries, Austria, Denmark and the Netherlands, have ratified the Accession Convention and it is due to come into force on 1 December of this year in respect of those countries. It is my intention that Ireland will proceed with the ratification process as quickly as is feasible and that the Bill will be commenced with all possible speed.

The interpretation provisions relevant to the 1968 convention as amended are contained in section 4. The only new element here is that there is provision for an extended definition of “judgment” in the context of the conventions, to include authentic instruments and court settlements, and also arrangements relating to maintenance obligations as referred to in Article 10 of the 1996 Accession Convention. Authentic instruments are a feature of certain continental countries and usually provide for the enforcement of financial obligations without the need to have recourse to the courts. The reference to arrangements relating to maintenance obligations concluded with administrative authorities was inserted pursuant to the 1996 Accession Convention, and such arrangements are quite common in Scandinavian jurisdictions.

The effect of the extended definition will be that all these instruments and measures can in future be enforced via the Master of the High Court, rather than by way of application to the High Court itself. This is the only procedural change which is being brought forward under the Bill. The remaining sections in Part II do not differ in substance from equivalent provisions which were contained in the 1988 and 1993 Acts.

Part III essentially makes the relevant provisions of Part II applicable to the Lugano Convention, which, as I said, governs enforcement of judgments as between EU and EFTA states. That convention mirrors the provisions of the 1968 conventions as amended by the subsequent Accession Conventions. Part IV makes certain amendments to the Maintenance Act, 1994, which are required as a consequence of this Bill and repeals the Judgments Acts, 1988 and 1993.

The nine Schedules to the Bill contain the texts of the 1968 convention, as amended, and the Protocol on interpretation by the European Court of Justice; the key provisions of the four accession conventions, and the text of the Lugano Convention and Protocol. I draw Deputies attention, in particular, to the First and Second Schedules which are consolidated versions of the texts of the convention and Protocol and, therefore, incorporate amendments made thereto by the various accession conventions. They are the 1978 accession convention in respect of Ireland, Denmark and the United Kingdom; the 1982 convention which concerns Greece; the 1989 convention covering the Spanish and Portuguese accession and the most recent instrument of accession which involved Austria, Finland and Sweden in 1996.

It is a measure of the importance of the 1968 convention that Article 63 thereof recognises the [1238] fact that any State joining the European Community is required to accept it as a basis for negotiations on this subject and, on becoming members of the EU, Austria, Finland and Sweden undertook, subject to necessary adjustment, to accede to this convention and its associated Protocol.

The Bill is a technical measure. However, I hope its passage through the House will help to develop awareness among the public of the practical importance of the conventions to all of us. The fact that the legislation in this area has now been consolidated should make it more accessible to practitioners and anyone else who needs to have recourse to the enforcement machinery of the conventions. I am especially pleased to bring forward this legislation, which is at the core of judicial co-operation in the civil sphere, in the aftermath of the successful referendum on the Amsterdam Treaty.

Perhaps the most significant recent development in economic terms is the globalisation of products and markets. Increased international competition and the growth in telecommunications and other new technologies mean that measures providing for jurisdiction and enforcement across national boundaries become more necessary and contracts drawn up in one country for enforcement in another become a routine part of life. In this context a system which guarantees the virtually automatic enforcement of foreign judgments in 18 states is an important and practical tool for anyone doing business across national boundaries.

The progressive elimination of barriers to trade, including the development of the Single Market, means that now, more than ever, predictability and certainty are vital in the area of business and commercial relationships within Europe and beyond. Individuals and corporate entities need to be sure that they can readily enforce contracts and secure enforcement of judgments for large sums of money.

Ireland's rate of export growth has expanded dramatically in recent years and the value of our exports in 1997 was £35 billion, an increase of 14 per cent on the previous year. While this figure covers countries other than the EU and EFTA group which are subject to the convention, it should be noted that the most recent figures available indicate that almost 70 per cent of our trade is with EU countries and a further 3 per cent with the EFTA states. I mention these figures in order to show the practical importance of the system of recognition and enforcement of judgments under the conventions.

Work is under way at the Hague Conference on Private International Law on developing a worldwide convention providing for the recognition and enforcement of judgments in civil and commercial areas. This emphasises the fact that there is a great deal of potential for expansion and development in the sphere of judicial co-operation in Europe and beyond. I commend the Bill to the House.

[1239] Mr. Higgins (Mayo): Consolidating legislation is welcome as it seeks to merge, rationalise and make more comprehensible a series of Acts which have been introduced in regard to the same or related issues over a period of time. There is an urgent need to introduce such legislation across a range of areas in all Departments, but particularly in the justice sphere.

All one has to do is look at intoxicating liquor licensing. The licensing trade is regulated by a myriad of Acts which date back as far as the 1830s. A series of Acts also deals with road traffic, which badly needs to be brought together under one umbrella. In the area of criminal justice, not alone do we have the annual Criminal Justice Act, but in recent years there has been a plethora of legislation dealing with virtually every aspect of criminal activity, including drugs, laundering of criminal assets, offences against the person, etc.

It must be extremely difficult for the Garda, in enforcing the law, and the courts, in interpreting and administering it, to keep up to speed with legislative change and the complexities of the new measures and requirements. It must be particularly difficult when one Act supersedes, amends or embraces previous legislation, in part or in whole. It is a major and daunting task to undertake consolidation of legislation, but in the interests of clarity and certainty each Department should have a section working on consolidation of previous Acts.

I welcome the Bill and while we might pat ourselves on the back because we are among the first EU member states to ratify the accession convention of Austria, Finland and Sweden, there is a general tardiness on the part of all European states — and we are no exception — in ratifying and implementing European conventions and regulations. This Bill enables us, as the Minister stated, to ratify a convention which was put in place in 1996. Why has it taken two years to reach this stage? The 1968 EC Convention on Jurisdiction and Enforcement of Judgments on Civil and Commercial Matters was only ratified by the Dáil through the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988, while we are among the first in the queue on this occasion.

Generally, Ireland has a tendency to merrily sign conventions and then allow two years and in some cases eight or ten years or more to elapse before it does anything about them. This is a serious issue because we are talking about people's rights and entitlements. They are entitled to expect that when Ireland, through its Minister or Ambassador, appends a signature on their behalf to any convention or agreement, then that convention or agreement should be given legal effect as quickly as possible.

The importance of this legislation is underlined by the fact that it helps to consolidate and clarify definite international rules in the area of civil and commercial law. The importance of the Brussels Convention is put very much in its context when [1240] one considers that the combined population of the contracting states is greater than 372 million. Every year 80,000 people die and 40 million are injured in these contracting states in accidents involving consumer goods. More than 300,000 are left with a permanent disability annually.

Many of these statistics give rise to transnational legal actions. This reciprocal recognition and enforcement of judgments by courts and tribunals in civil and commercial law areas is fundamental to the operation of good commercial practice. Speedy and informal procedures for the recognition of judgments from one member state to another and their enforcement is welcome and fundamental. The simplification of complex legal formalities is also to be welcomed.

However, generally, harmonisation of law has been slow in terms of drafting and implementation and this is unfortunate. There has been a major growth in trade between member states. In Ireland's case, the change in trading business between our overdependency on trade with the UK to our very successful diversification into the newly opened EU markets has brought the need for mutually acceptable rules and regulations very much into focus. The measures in this legislation apply only to our fellow EU partners and EFTA countries. Admittedly, approximately 80 per cent of our trade and commerce is carried out with those countries. However, we should also endeavour to establish similar reciprocal arrangements with the United States, Canada, Australia and New Zealand because we do a good deal of business with those countries. It is in their interest as well as ours to have as much harmonisation and cohesion as possible. Those democracies have highly developed legal and commercial systems. From the point of view of establishing internationally accepted norms across a wider geographical area, will the Minister indicate if the EU is contemplating a further extension of these international arrangements? Have talks commenced or have they been instigated with a view to broadening the scope of mutually accepted commercial law?

It would be extremely difficult to implement internationally applicable laws for non-democratic countries. We need only recall the topical export credit insurance which has been the protective mechanism for our trading operations with such countries, to compensate for the fact that one has no other legal redress in the event of payment defaults by them.

The legal framework set down in this legislation, whereby judgments made in one country are legally enforceable in another, is extremely important from the point of view of trade and commerce, particularly given the major expansion of world commerce in recent years. Every day new barriers are being broken down, new markets are being opened and new opportunities are presenting themselves. As an economy, whose commercial success is recognised world-wide, it is particularly important that we adopt best practice while ensuring a successful legal [1241] framework is put in place to protect trade from breach of contract, default and so on, and that an effective mutually enforceable regime is in place.

We should lead by example in this area and be the first on every occasion to ratify, adopt and embrace the provisions of international conventions. We should encourage other countries in Europe, through the European Union, to speed up the adoption and ratification process. We should continually reinforce the point that a simple, coherent legal system, which transcends national boundaries, is in everybody's interest, not only to provide important protection but also to ensure international trade operates as smoothly as possible.

The Maintenance Act, l994, provided for the setting up a central authority to ensure responsibilities were met in full and that maintenance orders could be enforced in another country where the person responsible for the debt, although living in another jurisdiction, could be forced to discharge his or her responsibility. That was a crucial mechanism for dealing with husbands who had deserted their families and fled to foreign climes to start a new life while leaving their wives and children penniless at home. I welcome the change signalled by the Minister in this legislation in that regard. Anything that helps to simplify or to make more effective the enforcement of maintenance orders made by an Irish court has to be welcomed. The central authority has done excellent work on behalf of many people who succeeded in getting maintenance orders, but they were effectively rendered useless because people did not have the know-how, confidence or resources to pursue the orders successfully.

A major weakness in ascertaining the effectiveness of the convention is that lawyers and litigants in prosecuting or defending civil and commercial litigation have not had recourse to any central database. The Centralised EU Convention Casebook and Judgment Registry Database is a welcome development. The intention is that it will provide online access to key information relating to convention actions during their progress through the courts in the various contracting States. This will be invaluable to lawyers, litigants and investors. Investors will be able to check on the database whether the company in which they propose to invest has been a defendant under the convention. In a product liability action a litigant will be able to check if other litigants are bringing the same action against the same defendant in another contracting State.

While the legislation will certainly help to streamline activities in the commercial and civil sphere, there is an urgent need to extend the scope of such co-operation into the criminal area. There is an urgent need also to give legal effect to the spirit and aspirations of the Amsterdam Treaty in relation to effective international combating of crime even though we have the Europol Bill and co-operation at that level. Rather than a one page set of laudable aspirations in the [1242] Amsterdam Treaty, what is needed is more cohesion, co-operation and an exchange of vital data in the fight against crime. While extradition treaties are effective in returning offenders to the country of the origin of the crime, the degree of data exchange in certain areas is not good.

There is particular concern at the manner in which known sex offenders and paedophiles are able to move easily from one jurisdiction to another with little if any awareness in the new host country of their criminal track record. A good example of this is the manner in which high profile swimming coaches, with a frightening list of sex offences against children and young swimmers in their care, were able to move unimpeded to Scotland and get similar employment there and further afield to the United States and take up important coaching positions and prey on others. A Brussels type convention in the criminal sphere is long overdue. I welcome the Bill and look forward to its speedy passage through the House.

Ms O'Sullivan: I welcome this Bill and note its origins date back to when the former Minister, Mervyn Taylor, was in office. He drew up the heads of this legislation when he was Minister for Equality and Law Reform. It has taken the Government a long time to bring this legislation before the House given that the heads of the Bill were ready 15 months ago, but it is important that we are debating it now. The delay in its introduction may have a good deal to do with the inability of the Department of Justice, Equality and Law Reform to cope with the volume of outstanding legislation. My party and I believe it was unwise to merge the Department of Justice and Equality and Law Reform. I call on the Government to reinstitute the Department of Equality and Law Reform, particularly as there are more than 30 Bills under the Department of Justice, Equality and Law Reform either before the House or on the list of promised legislation. That points to the need to reconsider the decision to merge the two Departments. Under EU law we are required to introduce the Data Protection Bill, which is awaited. Last week I asked when the Equal Status Bill, which was promised for the autumn, would be introduced, but I gather it will not be ready until 1999. The delay in introducing those Bills highlight the importance of giving proper emphasis to legislation related to equality and law reform.

The purpose of this Bill may seem to be procedural given its main function is to consolidate law governing civil cases taken outside the jurisdiction of the State. However, the Bill is of major significance in that it will make the law more accessible to those who might have taken cases outside the State in the past if they had the money to do so. It will facilitate the taking of a wide variety of cases, including those relating to maintenance and business, to which Deputy Higgins referred. This legislation will be most important in both those areas.

[1243] It is particularly important in the case of maintenance orders and legal cases relating to accidents or crimes which occurred abroad. As people move more freely across the EU, the need for this legislation becomes greater. We are all aware of the huge increase in the movement of people between EU states for short and long-term work purposes. Inevitably, the need for such legislation has increased because of the greater interaction between EU states in terms of civil law.

Although more recent legislation in this area has helped people to take civil cases abroad, the Bill will make that process much easier. It will also assist in speeding up civil cases taken against an individual or a collective in another EU state. The Minister referred to trade and commerce and to the point that the survival of a business may depend on the ability to enforce money judgments. In many cases such judgments refer to business done outside the State.

The Minister also referred to the current level of exports from Ireland to the EU. On the basis of the 1997 figures and the percentage of business within the EU, I estimate that Ireland's export trade is worth approximately £20 billion. Therefore, a sizeable amount of the legislation businesses use relates to other jurisdictions within the EU. In that context, the economic survival and development of many companies will depend on their ability to enforce judgments in other EU jurisdictions. I support Deputy Higgins's comments about the possibility of using the legislation to enforce judgments outside the EU. I am sure this would involve many difficulties, but it would afford protection to companies which have large amounts of trade outside the EU.

It is expected that one of the biggest Bills ever in terms of the number of sections, the Bill relating to copyright and relevant matters, will come before the House in the near future. The issue of copyright has become very important to creators of all types of work, particularly that which appears on the Internet and in print. Usually a breach of copyright outside the state of origin would be dismissed as not worth challenging under our current legislation. It is in such instances that the Bill will be of vital importance.

I acknowledge that the Department of Social, Community and Family Affairs has made some headway in ensuring that parents are fulfilling their responsibilities in terms of providing maintenance for their families. However, many fathers and some mothers have deserted their families to travel and settle abroad. All Members are aware of cases where it has been extremely difficult to follow up maintenance orders when the parent has left the jurisdiction of the State. People have had great difficulty in getting such maintenance orders implemented and getting enough money to keep their families going. The legislation will be very effective in this regard and bring much relief to many individual families who have had difficulty in pursuing these orders.

[1244] I am sure all Members have read harrowing stories about deserted families who have tried desperately to find the deserting parent to give maintenance towards providing for family needs. This was very difficult in the past. Despite the fact that the Maintenance Act, 1994, was in place, people still encountered huge amounts of red tape and expense in pursuing maintenance orders outside the jurisdiction. In many cases, families cannot afford the expense and have great difficulty pursuing their rights as a result. I welcome that the Bill will ease the burden for such families.

Deputy Higgins referred to the use of databases and information technology in criminal law. This is a good point. There have been so many advances in this area that it should be much easier now to trace information relating to legislation in various European countries and cases which cross European divides. Undoubtedly, there is room for more efficiency and effectiveness with regard the use of databases. I hope they will be used for the good of people involved in cases.

Once the Bill is passed, Ireland will be the second EU country to have fulfilled its obligations under the Judgments Convention. I am glad we are making headway at last because, for too long, Ireland has been too slow in passing and enforcing required legislation. An example of this is the parental leave legislation which was discussed in the last session. Although this will be implemented in December, Ireland had to seek extra time to introduce the measure because we had not fulfilled our duties in that regard. Another example is the Bill relating to data protection. However, Ireland will be among the first to introduce legislation to implement the Judgments Convention and this is welcome. I hope it is a pattern for the future, but I am not sure that will be the case given my comments earlier about the need for a separate Department to deal with equality and law reform issues. Nevertheless, I acknowledge that Ireland is in good time in this case.

In an effort to make the Bill more useful and relevant, the Labour Party has proposed a number of amendments which are centred on correcting errors and speeding up the ratification process. I intend to table amendments on Committee Stage in relation to the Convention on the Legalisation of Documents. This has been signed but the statutory instruments have not yet been introduced and this is creating a cost for businesses.

I welcome the legislation. While it is a relatively dry Bill, its effect will be most important in terms of the increase in business within the EU and the area of maintenance and other civil matters where people are having much difficulty enforcing decisions. The Minister outlined a number of exceptions which are acceptable and make sense, for example, where recognition would be contrary to public policy in the state where such recognition is sought or where the judgment is irreconcilable with one given in a dispute [1245] between the same parties in that state. They are logical exceptions and should be accepted.

Mr. Roche: Deputy O'Sullivan's contribution was most interesting, but I question the logic of her suggestion that splitting the Department of Justice, Equality and Law Reform into two separate Departments would be an effective and efficient way of using the limited resources available in the joint Department at present. This subject has arisen on a number of occasions.

Ms O'Sullivan: It was questioned in the past.

Mr. Roche: As a student of public administration, it interests me. However, the debate is based on a false premise. A matter which Deputy O'Sullivan and others may wish to examine is the manner and disposition of staff in the public service over the past 25 years. One of the indisputable realities is that Departments which have been split have become less rather than more efficient. I have sympathy with the view that a small focused Department should be more efficient and I have argued that thesis generally.

Ms O'Sullivan: The Department achieved much when it existed.

Mr. Roche: However, the reality has been otherwise. Provided the joint Department retains all its staff and specialist expertise, the current disposition of staff is probably a more efficient way of achieving the objectives which the Deputy and I share.

Debate adjourned.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.