Long Arms and Sharp Elbows: Jurisdiction from 1 January 2021

Joshua Folkard |

Following the EU-UK Trade and Co-operation Agreement (“TCA”) and the laying before Parliament of the Civil, Criminal and Family Justice (Amendment) (EU Exit) Regulations 2020, the key points for jurisdiction over EU-27 Defendants after the end of the transition period are now clear:

  1. For proceedings issued on or after 1 January 2021, the Brussels Regulation (recast) (“BIR”) will be revoked: Regulation 89 of the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (SI 2019/479).
  2. Save for cases involving jurisdiction clauses in favour of England (as to which, see below), the same permission will therefore be required to serve a French Defendant as is currently required to serve a Russian or BVI Defendant.
  3. There are limited exceptions to (1) and (2) above for consumer and employment cases: see the new sections 15A to 15E of the Civil Jurisdiction and Judgments Act 1982. In those cases, the previous BIR rules will in substance continue to apply.
  4. The English Courts will take jurisdiction without the need for such permission where there is an exclusive jurisdiction clause falling within the scope of the Hague Convention on Choice of Court Agreements 2005 (“the Hague Convention”). There is substantial dispute between the UK and the EU about whether the Hague Convention came into force in the UK for relevant purposes before 1 January 2021.
  5. In any event, the Civil Procedure Rules will be amended so that permission is not required to serve foreign Defendants out of the jurisdiction where the Claimant/applicant seeks to rely upon a jurisdiction clause in favour of England & Wales: see Approved Minutes of the Civil Procedure Rules Committee on 9 October 2020.
  6. The United Kingdom applied to join the Lugano Convention (“Lugano”) on 8 April 2020, but neither the EU nor Denmark have yet given their approval. The rules set out at (1) to (5) above will accordingly govern jurisdiction for at least a substantial period of time to come.

The TCA makes provision for (i) Law Enforcement and Judicial Co-Operation in Criminal Matters (in Part Three, from page 282 onwards); and (ii) certain provisions dealing with the provision of legal services in the EU-27 (see Reservation No.2 from page 544 onwards and Annex SERVIN-4 from page 747 onwards). From 1 January 2021, however, jurisdiction will be governed by domestic UK rules.

On Wednesday 13 January 2021 at 1-2pm GMT, Graham Chapman, George Spalton and Joshua Folkard will give the webinar: “Long Arms and Sharp Elbows: Jurisdiction after 31 December 2020”. They will speak in more detail about the points set out above, as well as the transitional provisions for claims issued before 1 January 2021. To join that webinar please contact events@4newsquare.com.

Written by Joshua Folkard

Many of Josh’s cases involve international or cross-border elements and he has a particular specialism in the conflict of laws/jurisdiction. In addition to his full-time practice at the Bar, Josh teaches International Commercial Litigation at University College London and has recently published: (i) a chapter on the ‘good arguable case’ test for service out applications in “Challenging Private Law: Lord Sumption on the Supreme Court”; and (ii) a case note on jurisdiction in insurance matters ([2020] 79(3) Cambridge Law Journal 427).

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.

© Joshua Folkard of 4 New Square, December 2020.