Following the publication of the UK government’s response to the consultation which sought views on plans for the UK to become a Contracting Party to the Hague Convention 2019 on Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“Hague 2019”), the UK government has confirmed that the UK “will sign Hague 2019 as soon as practicable”. A copy of the government response can be read here.
For those practising in international personal injury this is a welcome but meagre bowl of gruel to put on an otherwise empty post-Brexit table. It is not Lugano, but at least it is something. In this article Patrick Vincent KC considers the UK’s impending ratification of Hague 2019, what it means for international personal injury litigation, and in particular focuses on some of the concerning shortcomings of Hague 2019 by comparison to the position previously enjoyed under Brussels Recast.
We are also grateful for the spirited response to the consultation exercise provided by Stewarts Law (Chris Deacon) and Clyde & Co (Craig Evans), and their excellent article for the New Law Journal, “The Hague Judgments Convention 2019: Filling the Gap?” which identifies some of the challenges with Hague 2019 and which can be read here.
Firstly, and potentially most problematically, is Article 2(1)(f) which provides that the Convention shall not apply to the carriage of passengers and goods. On first reading, the article appears to be concerned with commercial transport. However, digging into the 183 page “Explanatory Report” accompanying the Convention, things get a little more complicated. Paragraph 54 of that report reads as follows:-
“…the exclusion is not limited to commercial contracts for carriage and, therefore, it also covers consumer contracts and contracts between non-professionals e.g. the Convention does not apply to a judgment for personal injury to a passenger injured in an accident as a result of the driver’s negligence. Conversely, this exclusion does not cover damages to third parties, e.g. a victim in an accident who was not a passenger.”
The exclusion itself does not mention the word “contract” at all. To the extent that it is said that Article 2(1)(f) goes beyond commercial contracts and applies to “non-professionals” such as a driver and passenger, one wonders whether what is meant here is “…agreements between non-professionals…” – such as A agreeing to B being a passenger in a car driven by A. If so, a judgment obtained by a passenger against a negligent driver cannot be enforced under the Convention. But the exclusion does not cover victims who are not passengers – such as pedestrians. So, if a negligent driver injures a passenger and a pedestrian in the same accident the passenger’s judgment is excluded but the pedestrian’s claim is not. As many international personal injury claims related to road traffic claims, there is potentially a worrying lacuna here.
Secondly, Article 3(1)(b) provides that for the purposes of the Convention “An interim measure of protection is not a judgment.” In the UK, an order for an interim payment in a personal injury claim is as good as judgment for enforcement purposes. If there was any doubt about whether such an order is an “interim measure of protection” covers such orders it is dispelled by Paragraph 99 of the Explanatory Report, which states “ ‘Interim measure of protection’ covers measures that serve two main purposes: providing a preliminary means of securing assets out of which a final judgment out of which a final judgment may be satisfied…an interim order for payment cannot be recognised or enforced under the Convention.” That creates a further difficulty in personal injury claims and in particular, the more serious large claims that could run for years where interim funding is badly needed by the victim.
Thirdly, in Article 3(1)(b) the Convention defines a judgment to mean “any decision on the merits given by a court …”. Whilst this definition can include a judgment in default, the wording of the definition means that no provision is made for settlements which, as we well know, if the means by which the majority of personal injury claims conclude. This clearly creates a further potential enforcement difficulty for those working in this area.
In its response to the consultation the UK Government has indicated that accession to the Hague Convention will not dampen its enthusiasm for Lugano. We hope that is true. That Hague Convention is a start but – please could we have more?