Royaume-Uni & Europe
The transition period has ended and a deal was agreed. However, what are the implications for cross-border civil proceedings involving casualty claims?
We have considered the jurisdictional changes for cross-border civil proceedings following the end of the transition period, issues of applicable law and the effect upon jurisdiction and enforcement of judgments. The Government's own guidance on these issues can be found here.
The position now is governed by the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (as amended).
Proceedings commenced in the UK up to 31 December 2020 will still be covered by European Union rules on international jurisdiction. Those Claimants will have the ease and familiarity of Regulation (EC) No. 1215/2012 – or the 'Brussels Recast Regulation' (BRR). Article 67(1) of the Withdrawal Agreement states that the BRR rules will continue to apply to proceedings not commenced in the UK prior to the end of the transition period, but are "related to such proceedings". This means that where proceedings had been issued in the UK by 31 December 2020, BRR will continue prevent parallel proceedings being brought in EU Member States, whenever those actions are commenced (and vice versa).
Since the transition period ended the Recast Brussels Regulation also no longer applies to the UK (except in relation to ongoing proceedings).
In April 2020, the UK government applied for the UK to re-join the Lugano Convention as an independent contracting party. A decision is currently pending. The Lugano Convention was laid before Parliament on November 2020 to ensure it can enter into force as soon as possible if the application is accepted.
The Lugano Convention does not apply after 31 December 2020 as between the UK, Iceland and Switzerland, even where proceedings were commenced before this date. However, the UK will unilaterally continue to apply the Lugano Convention to those proceedings (per regulation 92 of the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019).
In respect of new casualty claims to be issued in the UK post 31 December, the Government guidance confirms that “the rules governing jurisdiction in all cross-border disputes, including those involving parties domiciled in the EU (or in other states party to the Lugano Convention 2007), are derived from the domestic law of each UK jurisdiction.”
In England and Wales, this comprises the common law, together with various statutory provisions including, in particular, Part 6 of the Civil Procedure Rules 1998 (notably Practice Direction 6B). These common law rules still have some uncertainty with the ongoing Brownlie litigation. As such, for claims in this area, advice will need to be sought for if and when there is the opportunity of a jurisdictional challenge. This will be key for any litigated claims that fall in the lacuna of Recast Brussels Regulation and any future accession to the Lugano Convention.
The Rome II regulation provides that the law applicable to non-contractual obligations such as torts giving rise to personal injuries, will be, in summary, the law in the country where the accident or incident giving rise to disease happened.
Article 66 of the Withdrawal Agreement confirms that Rome II – relating to non-contractual obligations such as casualty claims - will continue to apply in the UK, where events giving rise to damage occurred before the end of the transition period. As from 1 January 2021 Rome II is classed as "retained EU law" and the UK now applies the retained version of Rome II, to determine applicable law in relation to contractual or non-contractual obligations.
Brexit does not make a substantial difference to the way that Rome II is applied in Member States where the UK is concerned. Article 3 is headed "Universal Application" and makes it clear that its rules apply regardless of whether a "law specified by this Regulation" is the law of a Member State or not. Article 4(1) says that in personal injury claims that the basic rule is that the law applicable to a tort is that of the country in which the damage occurred. In this context, the term "country" covered the UK before the end of the transition period, and will continue to cover the UK in future.
National law will now need to be applied to enforce a judgment from a court of one of the EU 27 or EFTA states in England and Wales. Where there is no applicable UK statute or where the originating jurisdictions do not have bilateral treaties in place with the UK, common law rules relating to recognition and enforcement of judgments will apply.
Applications for recognition and enforcement of a foreign judgment are governed by CPR 74, and in England and Wales need to be brought in the High Court. The judgment must be final, be for a definite sum, and not have been issued in respect of taxes, penalties or multiple damages awards.
For claims that are instigated in England & Wales against foreign defendants it would be wise to do full due diligence of the enforcement position in the home state of the proposed defendant and advice from a local lawyer should be sought.