Court of Appeal: English judges can exercise former CJEU powers

The first signs of divergence between the UK and EU legal systems are starting to emerge in cases based on the proper approach to retained EU law.

In Open Rights Group & Anor, R (On the Application Of) v Secretary of State for the Home Department & Anor [2021] EWCA Civ 1573, the Court of Appeal considered how to respond when asked to exercise a power to delay the implementation of dominant rules of retained EU law in the context of data protection rules.

The complicating factor was that this power had previously been exercisable only by the CJEU.

The Court had to consider whether it could assume that power for itself or whether it was forced to hold that the power had essentially vanished after the ending of the CJEU’s jurisdiction with Brexit.

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Don’t hold out hope for future UK Lugano accession

It is old news that the UK’s bid to join the Lugano Convention has stalled and been kicked into the political long grass. We previously blogged about the reasons given by the EU Commission for opposing UK Lugano Convention membership.


For the European Union, the Lugano Convention is a flanking measure of the internal market and relates to the EU-EFTA/EEA context. In relation to all other third countries the consistent policy of the European Union is to promote cooperation within the framework of the multilateral Hague Conventions. The United Kingdom is a third country without a special link to the internal market. Therefore, there is no reason for the European Union to depart from its general approach in relation to the United Kingdom.

At the time, we also speculated about whether there may in fact have been different motivations behind the opposition, in particular based on the following comment:

Stakeholders concerned, and in particular practitioners engaged in cross-border contractual matters involving the European Union, should take this into account when making a choice of international jurisdiction.

As we settle into the post-Brownlie era under the CPR service gateways, it is interesting to now look back at the comments of Éric Dupond-Moretti, French Minister of Justice, on the consequences for judicial cooperation in France of the UK-EU Trade and Cooperation Agreement.

His comments, originally made in February 2021 but recently recirculated online, go some way to confirming the suspicion that there may have been more to refusal of UK membership than the Commission’s stated reasons. The comments suggest opposition to UK membership of a deeper and more fundamental kind, which will likely prove difficult to overcome in the near future without skilled and targeted diplomacy.

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Brownlie II mini-series: (3) Foreign law

This is the third and final instalment in our Brownlie II mini-series.

The judgment can be found here. Our first article on the background and decision itself is here. The second article on the future implications of the tort gateway ruling can be found here.

In this third article, Patrick Vincent QC considers the many new tactical choices now available to litigants in cross-border claims based on the Supreme Court’s approach to the rules concerning the use of foreign law in English proceedings.

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Judgment in Scots law mesothelioma claim

Judgment was handed down in Haggerty-Garton & Ors v Imperial Chemical Industries Ltd [2021] EWHC 2924 (QB) yesterday following a two-day assessment of damages hearing before Ritchie J.

This was an unusual fatal mesothelioma claim where the applicable law was Scots law. Judgment for the First Claimant, Charmaine Haggerty-Garton (the widow), was given in the sum of £614,040.

Dushal Mehta of Fieldfisher and John Paul Swoboda of 12 KBW represented the First Claimant and her three children.

An article providing more information on the facts of the case can be found here.

This claim was unusual as Scots law was the applicable law despite the claim being tried in England. This gives practitioners north and south of the border a chance to consider what is the same and what is different in personal injury actions. There are two huge differences: awards of general damages for ‘loss of society’ for relatives and interest.

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Default judgments and invalid service – CPR Part 11 or Part 13?

We previously blogged about the options available to a foreign defendant who wishes to challenge a default judgment entered against them.

Where the defendant accepts that they were validly served but wishes to challenge the court’s jurisdiction, they may choose to proceed purely under CPR Part 11 without combining this with an alternative application to set aside the judgment on the basis of a real prospect of successfully defending the claim under CPR Part 13.

The reason they may choose to do this is to avoid any suggestion that they have submitted to the English court’s jurisdiction by making the CPR Part 13 application.

But what about the situation in which the defendant wants to challenge the default judgment on the basis that service was not validly effected at all? Does such an application have to be made under CPR Part 11?

In Mann v Towarzystwo Ubezpieczen Inter Polska SA & Ors [2021] EWHC 2913 (QB), Master Thornett explained that the answer is “no”.

The successful Claimant was represented by Aliyah Akram of 12 King’s Bench Walk.

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Brownlie II mini-series: (2) The tort gateway

This is the second blog in our new series on the Supreme Court’s recent decision in the Brownlie litigation.

For a discussion of the background and the key elements of the decision itself, have a look at Peter Hale’s excellent first blog in this series.

A reminder that the two issues for the Court to decide were the scope of the “tort gateway” under CPR 6BPD 3.1(9) and the proper approach to pleading and proving foreign law.

This blog post looks at the tort gateway decision in detail, with a focus on what its impact may be on future cross-border litigation.

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Brownlie II mini-series: (1) The decision

A week ago, the Supreme Court gave its much anticipated second ruling in the Brownlie litigation.

The background to this important decision should be familiar by now. Those wanting a refresher can see our earlier blogs on the last Supreme Court decision, the High Court’s decision in the reconstituted litigation, and the Court of Appeal’s ruling.

The two issues for the Supreme Court to decide were the scope of the “tort gateway” under CPR 6BPD 3.1(9) and the proper approach to pleading and proving foreign law.

This blog post by Peter Hale, a pupil at 12KBW, is the first in a new three-part series considering the decision and its implications for future cross-border litigation. Peter deals with the background to the case and the decision itself.

In the following parts of the series, we will be taking stock of the law as we understand it and considering where this important ruling leaves cross-border litigants and lawyers.

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Costs capping order refused in Malawian tea plantation litigation

A fascinating costs decision has just been released (please bear with me) in Thomas & Ors v PGI Group Ltd [2021] EWHC 2776 (QB). Kate Boakes is one of the counsel team representing the Claimants.

31 women employed at tea and macadamia nut plantations in Malawi allege sexual assault, harassment, and other types of sexual discrimination at the hands of male colleagues.

They bring claims in England against their employer’s parent company, which they say owed them a duty of care on the basis that it promulgated standards and exercised control over the employer. The parent company denies liability.

If the claims were successful, they would only entitle the Claimants to fairly modest damages. The Defendant said they would amount to around £10,000 each and £310,000 altogether (although the Claimants disagreed with those figures).

The parties filed costs budgets. The Claimants estimated their total costs of the proceedings at £3,177,806.76.

The Defendant asked the court to make a costs capping order limiting the future costs of the Claimants to £150,000.

It argued that incurring over £3 million in costs in order to recover only £310,000 in damages was disproportionate. It was also unfair, since the Defendant was unlikely to recover any costs at all even if they won owing to the effect of QOCS.

The Claimants’ response was striking: if the costs capping order were made, then they would in practice have to abandon their claims.

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When in Rome … Guidance from judges applying Italian law

Two recent decisions – both coincidentally dealing with the application of Italian law in the English courts – have given some useful general indicators about how the courts will approach the determination of disputes concerning foreign law.

In River Countess BV & Ors v MSC Cruise Management (UK) Ltd [2021] EWHC 2652 (Admlty), Andrew Baker J considered a claim for damages arising out of the collision of two cruise ships in one of Venice’s major canals.

Meanwhile, in Deutsche Bank AG London v Comune di Busto Arsizio [2021] EWHC 2706 (Comm), Cockerill J dealt with a case concerning the very different situation of swaps entered into by a small Italian local authority with Deutsche Bank.

English lawyers dealing with cases governed by Italian law would be well advised to read the useful summaries of the Italian legal system and Civil Code in these cases.

For the purpose of this blog, I am drawing attention to just two things: (i) the comments about how judges will resolve battles between foreign law experts and (ii) the analysis of whether an English court can depart from decisions of foreign courts – even, in this case, the ultimate appeal court of Italy.

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