While digesting my Christmas dinner and considering whether rolling to a non-essential shop is a viable mode of transport, I have had the opportunity to read through the snappily titled: “Trade and Cooperation Agreement Between the European Union and the European Atomic Energy Community, of the One Part, and the United Kingdom of Great Britain and Northern Ireland, of the other part” (hereafter, The Trade and Cooperation Agreement).
The Trade and Cooperation Agreement has been hailed by the Prime Minister, Boris Johnson, as providing an “Ambitious agreement – carefully judged to benefit everyone” and by the EU’s Chief Negotiator, Michel Barnier as negotiating “the UK’s orderly withdrawal from the EU and a brand new partnership”. Avid readers of previous articles on this website and followers of the Farrar’s Building Webinars may therefore be curious as to how the ambitious agreement provides for an orderly withdrawal in relation to the knotty issues of jurisdiction and enforcement of judgments after December 31st 2020. In that respect there is some bad news: it doesn’t.
There is no reference to be gleaned from reading The Trade and Cooperation Agreement to the UK’s application to accede to the Lugano Convention 2007, nor any mention of Brussels Recast or anything related to civil jurisdiction and the enforcement of civil judgments at all. This is particularly surprising in light of the European Commission’s announcement after the deal was struck that “the Trade and Cooperation Agreement establishes a new framework for law enforcement and judicial cooperation in criminal and civil law matters”. A perusal of the document shows that while there is agreement in relation to some specific aspects of the law (intellectual property for example), there is nothing related to more general civil concerns such as contractual and non-contractual obligations. Part III, Title I: General Provisions: Article Law.Gen.1: Objective, para 2 provides that the only part of the Trade and Cooperation Agreement dealing directly with judicial cooperation “only applies to law enforcement and judicial cooperation in criminal matters…” Judicial Cooperation in civil matters has not been dealt with.
What does this mean?
In short, this means that the current status quo come 1st January 2021 is that there is no deal on the issues of jurisdiction and enforcement. Unless the EU announces that it is prepared to agree to the UK’s accession to Lugano or a further bespoke agreement is announced (unlikely) the UK and the member states of the EU will treat each other as they would those states where there is no bilateral treaty relating to jurisdiction or enforcement of judgments. Due to the terms of the transition this will only apply to those cases issued on or after 1st January 2021. The key provisions are:
With respect to jurisdiction, unless the Package Travel Regulations or the international conventions (Athens, Montreal etc) apply, then English and Welsh common law rules under CPR r. 6.36 and PD 6B are likely to be in force. It will be necessary to seek permission to serve out of jurisdiction, which will only be granted on the basis that a jurisdictional gateway can be established. Defendants will be able to acknowledge service contesting jurisdiction pursuant to CPR part 11 even if permission for service out of jurisdiction is granted and the court may then consider whether England & Wales is the forum conveniens to hear the dispute. The process is likely to be significantly more protracted and expensive than it is at present. There remains some academic debate over whether the pre-EU bilateral treaties with some EU member states can now be relied upon, this may well have to be tested in the coming months.
The general common law rules will not apply to some cases with exclusive jurisdiction clauses governed by the Hague Convention 2005 which the UK has successfully acceded to (although the Hague Convention does not apply to any claims for personal injury or to consumer contracts). In relation to consumer contracts some of the special jurisdictional rules currently applicable have also been retained by virtue of the amendments to the Civil Jurisdiction and Judgments Act 1982 but this will by no means include all cross jurisdictional personal injury disputes.
For enforcement of foreign judgments within the English & Welsh jurisdiction it will be now necessary in most cases commenced after 31st December 2020 to issue a part 7 claim on the judgment and then proceed with separate domestic enforcement when/if the claim is granted.
The rules on enforcement of English & Welsh judgments in each member state are slightly different and lawyers operating within the English and Welsh jurisdiction would be well advised to consult a foreign lawyer before instituting enforcement proceedings in other member states.
In conclusion, unless a new further deal surprisingly appears or the EU belatedly accedes to the UK’s accession to Lugano (and all EFTA countries and the EU agree to waive the three month accession period), there are no provisions between the EU and the UK for a universally applicable system for accepting jurisdiction and the enforcement of judgments after 31st December 2020. The Trade and Cooperation Agreement has not changed this. After this date, the issues arising in relation to jurisdiction and enforcement are liable to be complex and will require the same considerations extended currently to non-EU member states. Those lawyers unfortunate enough to still be working on cases where these issues arise between Christmas and New Year are strongly advised once again to issue any cases capable of being issued before the ‘Brexit Day’ deadline.
For further information, most of the issues were considered by myself and Andrew Peebles in our recent webinar: https://www.farrarsbuilding.co.uk/webinar-jurisdiction-and-enforcement-after-brexit.
Frederick Lyon accepts instructions in all Chamber’s core areas of practice and has a particular interest in claims involving a foreign jurisdictional element. He has experience in advising and appearing in claims involving non-EU countries where jurisdiction has been challenged.