Jurisdiction and the Recognition and Enforcement of Judgments After Brexit

Joshua Folkard |

The European Union (Withdrawal Agreement) Act 2020 gained Royal Assent on 23 January 2020 (“the Withdrawal Agreement Act”). The Withdrawal Agreement Act can be found here.

The Withdrawal Agreement Act gives effect to the “Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community” (the “Withdrawal Agreement”), which can be found here.

The Withdrawal Agreement must now be approved by (i) the European Parliament (in a vote due to take place on 29 January 2020); and (ii) the Council of the European Union (“the Council”) by qualified majority voting.

Assuming that the Withdrawal Agreement is approved by the European Parliament and the Council, what rules will apply to jurisdiction and the recognition and enforcement of judgments from Exit Day (scheduled for 11pm on 31 January 2020)?

1. Jurisdiction

Jurisdiction is dealt with by Article 67(1) of the Withdrawal Agreement. Broadly, that agreement provides “[i]n the United Kingdom, as well as in the Member States in situations involving the United Kingdom” for:

  1. The continued application of the Brussels (Recast) Regulation (No. 1215/2012) for legal proceedings “instituted before the end of the transition period”: Article 67(1)(a).
  2. The continued application of the Brussels (Recast) scheme for legal proceedings which, although not instituted before the end of the transition period, “are related to such proceedings” pursuant to Articles 29 to 31 of the Brussels (Recast) Regulation: Article 67(1)(a). Articles 29 to 31 of the Brussels (Recast) contain the Regulation’s lis pendens provisions, in particular involving (i) the same cause of action between the same parties (Article 29), (ii) related actions (Article 30); and (iii) actions which come within the exclusive jurisdiction of several courts (Article 31).

The Withdrawal Agreement provides for the “transition period” to run until 31 December 2020: Article 126 (although there is provision for extension in Article 132). Thus, as regards new actions commenced up to at least 31 December 2020, jurisdiction will continue to be governed by the Brussels (Recast) Regulation.

2. Recognition & Enforcement of Judgments

The Withdrawal Agreement provides that “[i]n the United Kingdom, as well as in the Member States in situations involving the United Kingdom” the Brussels (Recast) Regulation will continue to apply to judgments “given in legal proceedings instituted before the end of the transition period”: Article 67(2)(a).

The recognition and enforcement of judgments from the remaining 27 Member States of the European Union (“the EU27”) will therefore continue to be governed by the Brussels (Recast) Regulation, at least in respect of judgments handed down by EU27 Courts in proceedings started before 31 December 2020.

3. The European Enforcement Order Regulation

The European Enforcement Order Regulation 805/2004 (“the EEO Regulation”) deals with the recognition and enforcement of judgments, court settlements and authentic instruments given on “uncontested claims”: Article 3(1) of the EEO Regulation. The EEO Regulation can be found here.

Provided that the relevant European Enforcement Order Certificate (“EEO Certificates”) was applied for before the end of the transition period, the Withdrawal Agreement provides for the continued application of the EEO Regulation to (Article 67(2)(d)):

  1. [J]udgments given in legal proceedings instituted before the end of the transition period”; and
  2. Court settlements approved or concluded and authentic instruments drawn up before the end of the transition period”.

Thus, when December 2020 approaches (assuming there has been no extension to the transition period) it may be worth considering whether EEO Certificates ought to be applied for in respect of judgments, settlements or authentic instruments which have arisen on “uncontested claims”, for example default judgments.

4. The Queen’s Speech and PIL Bill

The Queen’s Speech delivered on 14 October 2019 stated that “[s]teps will be taken to provide certainty, stability and new opportunities for the financial services and legal sectors”.

The Queen’s Speech Background Paper published on 19 December 2019 made reference to a “Private International Law (Implementation of Agreements) Bill” (“the PIL Bill”). The purposes of the PIL Bill were said to be to:

  • Maintain and strengthen the UK’s role as a world leader in delivering justice across borders on civil and family justice issues”; and
  • Make it easier for UK individuals and families who become involved in international legal disputes to access justice”.

It remains to be seen whether the PIL Bill will progress and, if so, what its eventual terms will be.

 

Written by Joshua Folkard

Josh is regularly instructed in commercial disputes concerning jurisdiction/service out and applicable law, as well as cases concerning application of the EEO Regulation.

Disclaimer: this article is not to be relied upon as legal advice. The circumstances of each case differ and legal advice specific to the individual case should always be sought.

© Josh Folkard of 4 New Square, January 2020.