Post-Brexit enforcement difficulties in UK/French cross-border claims

The end of the Brexit Implementation Period on 1 January 2021 put an end to Brussels I (Recast)’s common system of jurisdiction and enforcement in civil and commercial matters (except for pending claims) as between the EU and the UK. We blogged about the Government’s guidance on the new status quo here.

Of particular concern for English claimants suing French defendants in the future is the question of how and when an English court’s judgment can be enforced in France. As we pointed out in a previous blog post, the question of possible enforcement must be addressed as a matter of priority by any cross-border practitioner considering new litigation.

We are grateful to Karel Roynette of Grenier Avocats for this eye-opening blog post setting out the difficulties that English claimants may now encounter despite having successfully pursued a French defendant to judgment.

In summary, France will agree to enforce a foreign judgment where a three-prong test is met. This is the so-called “exequatur process”. Its requirements are as follows: i) the establishment of jurisdiction by the foreign country’s court complies with French jurisdictional rules, ii) there is no impediment of French public policies, iii) no fraud is committed (Cass 1e civ., 20 Feb. 2007).

Brexit has brought about no substantial change in position in respect of the last two requirements. This blog post will rather focus on the first prerequisite of when the establishment of an English court’s jurisdiction complies with French jurisdictional rules, so that its judgment can be enforced in France.

Scenarios where a UK court is deemed to have jurisdiction under French jurisdictional rules as easily as pre-Brexit

First of all, French law states that a choice-of-court agreement, stipulated by parties in a cross-border contract, shall determine which court has jurisdiction to hear their contract claim (Cass 1e civ., 17 Dec. 1985).

Therefore, when there is a dispute over a cross-border contract between parties who have entered into a UK choice-of-court agreement under Brussels I (Recast), a UK court can take jurisdiction and its judgment will then validly be enforced in France. Additionally, a choice-of-court agreement made after the end of the Implementation Period will prevail under the Hague Convention on Choice of Court Agreements 2005. We blogged about the Hague Convention here.

If the parties have not made a choice-of-court agreement, French law provides that the court for the place where the contract is to be performed may have jurisdiction over a contract claim (Code Civ. Proc., Art. 46). Therefore, if a contract is to be performed in the UK, a UK court can establish jurisdiction to rule over a contract claim and its judgment is validly enforceable in France.

Regarding tort claims, the French rule is that the court for the place where the wrongdoing or damage happens can have jurisdiction to hear such claims (Code Civ. Proc., Art. 46). Therefore, in the instance that a French manufacturer, directly or via UK distributors, sells products which happen to be defective and cause damage in the UK, any judgment then to be issued by a UK court, deemed to have jurisdiction, will be enforceable in France.

French law may provide a court further jurisdiction to hear: i) a claim made by a plaintiff in order to add a defendant to an underlying lawsuit or ii) a third-party claim brought by a defendant against another (Code Civ. Proc., Art. 42).

Accordingly, for example, if a UK victim gets injured during his holidays in France which he booked from a UK travel agency, he can sue the UK travel agency in the UK. The UK plaintiff may also add the French resort to the lawsuit, and the UK court may eventually decide to hear it all. Its judgment can validly be enforced against the French resort in France. Likewise, if it is the UK travel agency which brings a third-party claim against the French resort, the UK court’s judgment can still be enforced in France.

Scenarios where a UK court is no longer deemed to have jurisdiction post-Brexit under French jurisdictional rules

France does not apply the rule that the court for the place where a contract is made (and not performed) has jurisdiction. France only recognizes, by exception, that an EU consumer can sue another EU professional contracting party in the court for the place where the contract was made under Section 4 of Brussels I (Recast).

Therefore, now, post-Brexit, if a UK consumer and a French professional enter into a contract in the UK (but perform it outside the UK), a UK court cannot issue a judgment enforceable in France. This is despite new English jurisdictional rules concerning consumer contracts which we discussed here.

Likewise, France does not allow a victim to bring a direct right of action against an insurer in front of the court for the place where the victim is domiciled, except under Section 3 of Brussels I (Recast). Therefore, in the event that a UK court hears a UK victim’s direct right of action against a French insurer while it does not have jurisdiction against the underlying defendant (insured by the French insurer), its judgment will not be enforced in France. Litigation will have to be brought directly to France.

This article is for information purposes only and cannot lead its author to any liability. Please feel free to contact Karel should you need any further information.