No Brexit deal on civil jurisdiction

When we first started this blog what feels like aeons ago (but which, on checking, was in fact only in 2016), our very first posts formed a short series speculating on the possible impact of Brexit on civil litigation.

Assuming that the Draft EU-UK Trade and Cooperation Agreement will in due course be approved by Parliament, (and barring the emergence of some as yet unknown side-deal on civil jurisdiction) there will be no more need to speculate.

This blog post summarises the position on jurisdiction and applicable law as we understand it for cross-border civil proceedings brought in England and Wales during and after the Implementation Period.

Jurisdiction

In summary, the deal is apparently silent on the future of jurisdiction and enforcement in civil proceedings.

Although it had been the UK government’s intention to accede to the Lugano Convention, agreement in this respect has not made it into the deal.

It is by no means a foregone conclusion that the UK will in fact be allowed to accede.

And, even if the UK were to accede, there would be an implementation gap of several months.

The position is therefore governed by the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (as amended).

• The EU rules on international jurisdiction will continue to apply to proceedings started in the UK before the end of the transition period. We can expect litigation about whether this covers proceedings which have been issued within the transition period but not served until after 31 December 2020.
• The EU rules on international jurisdiction will continue to apply to proceedings which, although not started in the UK before the end of the transition period, “are related to such proceedings” for lis pendens purposes.
• For proceedings started after the end of the transition period, the common law rules or the rules of any applicable legal instrument will apply to jurisdiction and enforcement. One such instrument is the Hague Convention on Choice of Court Agreements, to which the UK will accede in its own right with effect from 1 January 2021 (pursuant to the Private International Law (Implementation Of Agreements) Act 2020).
• Given the expanded role for the common law rules, the correct interpretation of the “tort” service gateway (and the defendant’s upcoming second outing on this question in the Supreme Court in Brownlie No. 2) will assume monumental importance for tort lawyers.
• But, there are two important exceptions. These relate to the special jurisdictional rules protecting consumers entering into consumer contracts and employees under employment contracts. Amended versions of these rules will be incorporated into English law by the insertion of new sections 15B and 15C to the Civil Jurisdiction and Judgments Act 1982. We will take a closer look at these new provisions in a future blog.

Applicable Law

The position is governed by the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019 (as amended).

• Rome I will continue to apply directly in respect of contracts concluded before the end of the transition period.
• Rome II will continue to apply directly in respect of events giving rise to damage which occur before the end of the transition period.
• Rome I and Rome II will continue to apply in amended form as “retained EU law” after the end of the transition period. The question of the continuing relevance of CJEU decisions to the correct interpretation of these provisions will no doubt be an interesting (and litigated) one.