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.

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Greek Supreme Court changes course on enforcement of English costs awards

This week we will be featuring guest posts by some of our European colleagues looking at recognition and enforcement of English judgments overseas, with one eye on the post-Brexit future.

For this first post, we are grateful to Louiza Papadopoulou, Trainee Solicitor at P.A.G Law, Athens, Greece who wrote this piece with assistance from George Natsinas, Solicitor and Member of the Athens Bar Association.

In a case concerning the enforcement of a UK costs certificate, the Greek Supreme Court recently overturned longstanding precedent and held that the “excessive nature” of an English costs award is not contrary to Greek public order. The reasoning of the court’s decision was based on the EU principle of mutual trust and the prohibition of any review of the substance of a foreign judgment, as provided for in art. 45 of the original Brussels Regulation.

As Louiza and George point out in their comments below, Brexit has changed the picture. However, this ruling will continue to have relevance to cases with a Greek element started before 1 January 2021 under the transitional provisions of the Withdrawal Agreement.

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Judgment day announced in X v Kuoni

My thanks to William Audland QC for letting me know that the CJEU has informed the parties in X v Kuoni Travel C-578/19 that it will hand down its judgment at 9.30 am on 18 March 2021.

We previously blogged about the first instance decision, the Court of Appeal’s decision, the interim judgment of the Supreme Court, and the Advocate-General’s Opinion. We are looking forward to completing the set in a few weeks.

The Defendant in the litigation is represented by William Audland QC, Nina Ross, and Achas Burin, all of 12 King’s Bench Walk.

Supreme Court rules in Okpabi v Royal Dutch Shell Plc and SPDC

The decision of the Supreme Court in Okpabi & Others v Royal Dutch Shell Plc & SPDC was handed down this morning.

The Supreme Court has, unsurprisingly, confirmed that the law is as stated in its recent decision of Lungowe & Others v Vedanta Resources Plc & KCM [2019] UKSC 20. Applying the principles laid down in Vedanta, the Claimants’ case can proceed in this jurisdiction.

In this blog post (produced in record time), Kate Boakes analyses the new decision and its implications. She also looks back at the line of cases constituting the “Vedanta model” of claims against UK-domiciled parent companies.

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The 2005 Hague Convention on Choice of Court Agreements

We previously blogged about the changes to the landscape of civil jurisdiction and enforcement brought about at the end of the Implementation Period on 31 December 2020.

One of these changes was the direct incorporation into English law of the 2005 Hague Convention on Choice of Court Agreements via the Private International Law (Implementation of Agreements) Act 2020.

This actually represents a continuation of the position pre-Implementation Period, since the Convention already applied by virtue of the UK’s membership of the EU. The EU block is a party to the Convention, as are Denmark, Montenegro, Mexico and Singapore.

But what exactly is the Convention and what does it do? In this blog post, Cressida Mawdesley-Thomas summarises the key points.

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Brexit mini-series: (5) the big picture

In this comprehensive analytical article, John-Paul Swoboda and Spencer Turner set out their view of the current position and the implications of Brexit for the future of cross-border civil litigation in the UK.

In Bulmer Ltd v Bollinger[1] Lord Denning spoke of the European Communities Act 1972 as ‘like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute’.

In the four decades that followed, the Brussels I (Recast) Regulation, the Rome I and Rome II Regulations, the Service Regulation, and the Lugano Convention revolutionised cross-border litigation and shaped the UK’s civil justice system. As was said by the authors of Dicey, Morris & Collins[2] in the most recent edition of ‘Conflict of Laws’ ‘[b]y far the most significant source of the English conflict of laws … is European Union law’.

On 24 December 2020 it became clear that the tide had turned. The conclusion of the Trade and Cooperation Agreement[3] between the UK and the EU did not include any provisions on judicial cooperation in civil matters (as we discussed here). On 31 December 2020, the UK’s participation in large parts of the EU legal order ended and a new period for private international law began.

In this post we will offer some thoughts and consider the implications from our perspective as travel and personal injury practitioners.

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High Court sends Brussels Regulation request in Oktoberfest torpedo case

A fascinating decision has been released today in Jamieson v Wurttemburgische Versicherung AG & Anor [2021] EWHC 178 (QB). The Claimant was represented by Harry Steinberg QC, the First Defendant by Sarah Crowther QC, and the Second Defendant by Richard Viney.

The Claimant suffered a serious brain injury after being hit by a taxi as he walked back to his hotel from the Oktoberfest in Munich. His representatives then entered into pre-action correspondence with the taxi’s insurer. They specifically asked the insurer to refrain from issuing proceedings for a negative declaration of liability in Germany.

Unfortunately for the Claimant, the insurer’s response was to do exactly that. When this emerged some time later after negotiations between the parties had failed, the Claimant issued his own proceedings in England against the insurer (the First Defendant) and against the Claimant’s employer (the Second Defendant).

Those proceedings were stayed by consent in the hope that the German courts would come to a quick decision on seisin and jurisdiction. However, when the case became embroiled in a “procedural quagmire”, the Claimant attempted to have the stay lifted. This was the subject of the hearing before Master Davison.

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Applicable law in asbestos disease claims

John-Paul Swoboda and Spencer Turner instructed by Dushal Mehta of Fieldfisher recently represented a Claimant in Charmaine Haggerty-Garton (as Widow and Executrix of the Estate of Mr David Haggerty (Deceased)) v Imperial Chemical Industries Limited. This was a claim which involved the common law double actionability rule and the circumstances in which the “flexible exception” to the rule can apply.   

The claim was brought by the widow of Mr Haggerty in England. Mr Haggerty died from mesothelioma following exposure to asbestos in Scotland in the 1970s. The Claimant’s position was that Scots law applied to the claim. If Scots law were found to apply to the claim, the Claimant could bring a claim for ‘loss of society’ under section 4 of the Damages (Scotland) Act 2011, which had the potential to substantially increase the value of her claim. Relatives unable to claim in English law would also be able to join the action if Scots law applied.

This blog post considers the principles relevant to the determination of the applicable law in this claim.

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