Filling the gap? The impact of Hague Judgments Convention 2019 on cross-border injury claimants

The following article, co-authored by Clyde & Co Legal Director, Craig Evans, and Christopher Deacon, Partner at Stewarts Law was published in New Law Journal on 7 April.

The Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague 2019) is an international law instrument that provides a framework for recognising and enforcing foreign judgments. Under Hague 2019, a judgment obtained in one contracting state will be recognised and enforced by the courts of another contracting state, providing it complies with the requirements set out in Art 6 of the convention. Hague 2019 is of heightened importance following Brexit due to the absence of a bilateral treaty between the UK and the EU in the field of cross-border enforcement of judgments.

There is a clear consensus between claimant and defendant representatives in their responses to the consultation that Hague 2019 is a positive step forward but does not fill all the gaps left by Brexit in the field of judicial cooperation in civil and commercial matters. In particular, Hague 2019 has a number of shortcomings for serious injury victims.

Ratification without delay

As a consequence of the UK leaving the EU, the application of both the Brussles I (recast) Regulation (EU) 1215/2012 and the Lugano Convention of 2007 ended. This has resulted in significant uncertainty regarding the recognition and enforcement of UK judgments abroad and foreign judgments within the UK. Even where a judgment originating in the UK can be recognised or enforced in a foreign court, Brexit has added additional procedural burdens, delays and costs. Adopting Hague 2019 would go some way to alleviating those difficulties in the field of enforcement.

Responding to the consultation, both Clyde & Co and Stewarts highlighted the following issues:

• There is a required period of 12 months between the ratification and the convention taking effect. In addition, the transitional provision states that only 'proceedings instituted' after the convention has taken effect are in scope (ART 16). This means there will be a significant lead time before parties and their legal representatives can take advantage of the convention's mechanisms in practice. It is important, therefore, that the UK government does not delay in ratifying Hague 2019.
• The registration model in place before the UK left the EU should be used as a template. It should also cover the indirect jurisdictional grounds to make clear when a party has satisfied the convention's requirements.
• Implementation of Hague 2019 should be in all UK jurisdictions. This would mean all three UK legal systems will benefit from the additional certainty and reduced transactional cost and friction that Hague 2019 potentially brings.

Hague 2019 shortcomings

Although overall Hague 2019 is considered a positive step forward in the UK's private international law landscape, there are concerns. The limitations and exclusions from the scope of Hague 2019 create notable shortcomings that limit how the convention can assist claimants seeking to enforce a UK judgment overseas.

Under Art 3.1 (b) of Hague 2019, the definition of 'judgment' excludes interim measures as it says: 'An interim measure of protection is not a judgment.' Responding to the consultation, Clyde & Co and Stewarts questioned whether this would, for example, exclude recognition or enforcement of interim remedies such as interim payments or an order for specific disclosure. From a claimant's perspective, there is a concern this will prevent enforcement of an interim award of damages, which can be vital to a claimant to help with funding care costs and rehabilitation.

Art 5.1 (j) provides that 'the act or omission directly causing such damage [must have] occured in the state of the origin'. This would make the judgments obtained using the tort gateway, which was widened following the UK Supreme Court's decision in FS Cairo v Brownlie [2021] UKSC 45, [2021] All ER (D) 105 (Oct) unenforceable via the Hague 2019 mechanism. It is considered that the current wording of Art 5.1 (j) excludes a judgment relying on Brownlie, as Hague 2019 requires the act or omission to have occured in the state of origin of the judgment.

Art 5.1 (j) also refers to harm being 'directly caused'. This may exclude indirect loss resulting from injury or death. The explanatory notes to Hague 2019 recognise there are issues over how Hague 2019 might be interpreted. This leaves the question of the interpretation of this part to national courts, which leads to additional uncertainty.

Lugano Convention

Claimant and defendant representatives agree that efforts by the UK government and EU should continue to enable the UK to rejoin the Lugano Convention. The Lugano Convention provides certainty to parties on the questions of both jurisdiction and enforcement, whereas Hague 2019 does not include uniform rules on establishing jurisdiction.

In the future, it is possible an international convention on jurisdiction might be available for ratification and to complement Hague 2019. Since 1992, the Hague Conference on Private International Law has focused on international rules of jurisdiction and enforcement. First came the 2005 Choice of Court Agreements Convention, now Hague 2019. A constructive next step would be a convention on international rules of jurisdiction. It is understood that the work of the Hague Experts' Group continues in the field of jurisdiction, and commentators are keen for further progress to be made to introduce an international regime governing parallel proceedings, even if not extending to rules of direct jurisdiction. Even if the Hague Conference can reach a consensus on a jurisdiction convention, this development will likely be some way into the future.

What next?

The impact of Brexit on cross-border injury claimants is felt by both claimants and defendants. There is a consensus that the UK government should not lose sight of the importance to both sides in cross-border disputes involving the UK and EU/EFTA states of permitting the UK to rejoin the Lugano Convention. The ratification of Hague 2019 should not be seen as a replacement for Lugano. Although ratifying Hague 2019 does go some way towards filling the gaps left by Brexit, claimant and defendant representatives alike are keen to highlight that it is not the full answer to cross-border issues of jurisdiction and enforcement.

The Ministry of Justice is currently analysing responses to the consultation. Its response is expected to be published in the next couple of months.