113 / 482
GAZETTE
MARCH 1989
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
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
Handwriting & Subject
Document Analysis
Michael Rasnmssen,
Mayanncor Ltd.,
19, Woodside, Rathnew,
Co. Wicklow.
Telephone: 0404-69474
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.
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