EU Commission releases updated notice on post-Brexit transition period private international law rules

The EU Commission has released an updated notice concerning the impact of the end of the Brexit transition period on private international law. The notice is available here.

We summarised the position under the Withdrawal Agreement in a previous blog post. In summary:

  • The EU rules on international jurisdiction will continue to apply to proceedings “instituted” in the UK before the end of the transition period.
  • The EU rules on international jurisdiction will continue to apply to proceedings which, although not instituted in the UK before the end of the transition period, “are related to such proceedings” for lis pendens purposes.
  • For proceedings instituted in EU Member States after the end of the transition period, the courts in the EU Member States will determine their international jurisdiction pursuant to any relevant EU law instruments, international conventions, or national laws.
  • There is no mention of the possible applicability of the Lugano Convention. Although it is the UK government’s stated intention to accede to the Convention, we posted about potential problems with this strategy here.
  • Rome I will continue to apply to the UK in respect of contracts concluded before the end of the transition period.
  • Rome II will continue to apply to the UK 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 EU Member States after the transition period as before.
  • Brussels I (Recast) is to apply to the recognition and enforcement of judgments given in legal proceedings instituted before the end of the transition period and to authentic instruments formally drawn up or registered and court settlements approved or concluded before the end of the transition period.
  • EU rules on enforcement will not apply to judicial decisions where the original proceedings have been instituted after the end of the transition period.
  • The UK has expressed its intention to accede in its own right to the 2005 Hague Convention on Choice of Court Agreements after the end of the transition period. The Convention will apply between the EU and the UK to exclusive choice of court agreements concluded after the Convention enters into force in the UK as party in its own right to the Convention.

Supreme Court vicarious liability ruling applied in Scottish abuse claim

In this blog post, Samuel Cuthbert considers the case of JXJ v The Province of Great Britain of the Institute of Brothers of the Christian Schools (“The De La Salle Brothers”) [2020] EWHC 1914 (QB).

This is the first sexual abuse case applying the Supreme Court’s decision on vicarious liability in Various Claimants v Barclays Bank [2020] UKSC 13. It is also technically “international”, because it involved Scottish law. In that respect, it has a number of interesting comments about the Foreign Limitation Periods Act 1984 and Scotland’s “mirrored” version of s. 33 Limitation Act 1980 in historical abuse cases.

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Food poisoning ruling sends shockwaves through package travel litigation sector

In this blog post, Cressida Mawdesley-Thomas considers the recent case of Griffiths v TUI UK Limited [2020] EWHC 2268 (QB).

It is difficult to overstate the impact of this ruling in relation to the way in which package holiday food poisoning cases have generally been fought since the key Court of Appeal decision in Wood & Anor v TUI Travel Plc (t/a First Choice) [2017] EWCA Civ 11 (discussed in detail here).

In summary, Martin Spencer J held that it was not open to a defendant to invite the trial judge to disregard a claimant’s expert report where it represented the only expert evidence on the issue of causation. Provided that the report met the minimum requirements of CPR 35PD 3, the court was in effect bound to accept the expert’s conclusions – even if the reasoning was demonstrably poor.

At the conclusion of this blog post, we explain our understanding of the likely implications for future litigation.

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New authority on Rome II tort “escape clause”

In this blog post, Spencer Turner discusses the recent decision in Avonwick Holdings Ltd v Azitio Holdings Ltd & Ors [2020] EWHC 1844 (Comm).

This case involved three of Ukraine’s most prominent businessmen, allegations of misrepresentation, deceit, conspiracy, claims and counterclaims valued in excess of US$1 billion and an eight-week High Court trial in which 14 counsel were instructed.

For the purposes of this blog, comment is confined to Picken J’s interesting discussion of the Article 4(3) “escape clause” in Rome II at [150]-[176]. For the particularly diligent, the remainder of the 1,105 paragraph judgment can be read here.

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Court of Appeal: Civil Liability (Contribution) Act 1978 has extra-territorial effect

In Roberts v The Soldiers, Sailors, Airmen And Families Association – Forces Help & Anor [2020] EWCA Civ 926, the Court of Appeal confirmed that the Civil Liability (Contribution) Act 1978 has extraterritorial effect. In this blog post, Megan Griffiths and James Beeton outline the decision and consider its implications for future litigation.

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High Court blow for environmental damage representative actions

In a previous blog post, we noted that litigation concerning damage caused by an oil spill off the coast of Nigeria had, unusually, been brought as a representative action under CPR Part 19.

At a hearing (discussed here), this feature of the litigation was commented on by the judge, who noted that there could be serious issues in respect of the procedural requirement for all the affected persons to have suffered the “same damage”.

These comments were seized upon by the Defendant, who suggested that the claim should be struck out on a number of grounds, including that “the action is not a “representative action” because there is insufficient identity of interest between the Claimants”.

Judgment on this issue has now been given in Jalla & Ors v Royal Dutch Shell Plc & Ors [2020] EWHC 2211 (TCC). Stuart Smith J accepted the Defendant’s argument. The decision represents a huge blow for those hoping to use the representative action as a cost-effective vehicle for bringing large-scale litigation arising out of environmental disasters.

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Court of Appeal rules in revived Brownlie litigation

A summary of the background to this case is set out in a previous blog post on the first instance decision here. On appeal under the citation FS Cairo (Nile Plaza) LLC v Brownlie [2020] EWCA Civ 996, the Court of Appeal ruled on:

  • whether the tort gateway for service out of the jurisdiction could be triggered by consequential damage suffered in the UK; and
  • the status and effect of the common law presumption that, in the absence of evidence of the content of a foreign applicable law, the court will simply apply English law.

This is a highly significant decision for lawyers interested in the conflict of laws. However, rather unhelpfully, three distinct sets of judicial reasons on the second issue have complicated rather than clarified the position concerning the need to prove foreign law. At the end of this blog post, I summarise the current position as I understand it to be.

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New authority on Service Regulation and insurance provisions of Brussels I (Recast)

In The London Steam-Ship Owners’ Mutual Insurance Association Ltd v The Kingdom of Spain [2020] EWHC 1920 (Comm), Butcher J considered four related Part 11 applications arising in four related sets of court proceedings.

The factual background involved claims against the states of Spain and France for failures to honour arbitral awards or to abide by judgments of the courts of England and Wales.

The points of interest for the purposes of this blog are these:

  • Confirmation that the Service Regulation – and not the regime set out in s. 12 of the State Immunity Act 1978 – applies to claims against EU Member States, save where the claim concerns acts of state authority.
  • A useful summary of the authorities concerning whether there is a “serious issue to be tried” for the purpose of applications to serve out of the jurisdiction.
  • Distillation of the principles concerning what qualifies as a “matter relating to insurance” following the recent decision of the Supreme Court in Aspen Underwriting Ltd & Ors v Credit Europe Bank NV [2020] UKSC 11.
  • Consideration of key terms in Section III of Brussels I (Recast) – in particular, “beneficiary” and “injured party” – plus a determination of whether a state bringing a subrograted claim in respect of sums paid out under state compensation schemes can properly be characterised as a “weaker party” for the purposes of Section III.
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