Comment: Brexit and the impact on Cross-Border Civil Litigation: Do we have guidance or is it a guessing game?

11th June 2019

Written by Fletchers Solicitors’ Trainee Solicitor, Ceri Dudley.

At present, European Union (EU) law takes precedence over UK law. The European Union (Withdrawal) Act came into force on the 26th June 2018, which ultimately brings a conclusion to this sovereignty and UK law will establish priority on this day. This is otherwise known as ‘exit day’. Should the date be 2019? Have a read and see what you think?

By way of background, EU rules are currently used in all Member States and, more specifically to this article, UK law to determine the following:

  • Which country’s courts hear a civil, commercial or family law case raising cross-border issues with other EU countries (jurisdiction)
  • Which country’s laws apply (applicable law)
  • How a judgment obtained in one EU country should be recognised and enforced in another (recognition and enforcement)
  • How cross-border legal procedural matters are handled (such as taking evidence in one country for use in proceedings in another)[1]

It is perhaps not unfair to state that the UK and EU are keen for relations to continue to be harmonious following the UK’s exit from the EU. As we are all aware, both parties have been working together to secure a mutually beneficial deal which will allow the relationship between the UK and the EU to be maintained once the impending ‘exit day’ is reached. But, the question that looms over all of us prevails: what happens to this relationship should a ‘no-deal’ conclusion be reached?

How Clear Exactly is the Guidance?

There is little doubt that the loss of reciprocity with Europe would open a Pandora’s Box on civil litigation with Europe when dealing with unresolved issues that were previously sheltered under the realm of European law and regulations. What is simply unclear, is whether the ‘no-deal’ scenario means that we will be forced to rely upon archaic law predating the implementation of the EU instead of the regulations that have taken precedent today.

The Government published the guidance ‘Handling civil legal cases that involve EU countries if there’s no Brexit deal’ on the 13th September 2018[2] detailing what should happen in the event that a deal cannot be reached and the implications for those engaged in disputes, in light of a lack of framework for ongoing civil judicial co-operation between UK and EU countries. In the paper, it is clear that should a severance of agreement with Europe take place leading to a ‘no-deal’, then the existing civil judicial co-operation rules will be revoked and national law will prevail. In cross-border cases, we will simply refer to existing cross-border precedents concerning non-Member State countries in order to govern our relationship with the EU.

Perhaps less clearly, the guidance subsequently declares that in some situations, the interaction between these rules may be unclear and as such, businesses should look to obtain legal advice if it affects their individual circumstances.[3] It is true to say that this advice provides an overwhelming amount of uncertainty.  

The Law Society and the Government suggested in their guidance that the UK will retain the Rome I and Rome II Treaties for contractual and non-contractual matters, where reciprocity is not entirely necessary for operation purposes, which should ensure that some element of streamlining is present in the way that rules are applied.

Similarly, we would also continue to apply existing international agreements, such as the 2005 Hague Convention on Choice of Court Agreement, which the UK would need to take steps to rejoin in its own right. We are currently privy to this as part of our EU membership but once this is revoked, we will also lose our right to participation in this convention.[4]

Due to the fact this did not come into force within the UK on the 1st April 2019, any ongoing dispute covered by Brussels or the convention between a potential ‘exit day’ date remains once again be nothing short of a blurred dilemma.

This is not clarified within the guidance.

‘Exit day’ date remains once again be nothing short of a blurred dilemma.

In addition to this, there is unquestionably some element of vagueness as to when the Convention will come into force within the UK, considering it enters into force on the first day of the month following three months after ratification, and also whether it will be applicable to jurisdiction agreements that have been concluded before the UK is entered into the convention on their own merits and not as a Member State of the EU. One would presume that it should be, albeit this is yet to be clarified.[5]

The guidance simply states that they will seek to provide legal certainty for those involved in ongoing litigation when the UK exits Europe, although the presumption is that the cases will continue to run as normal. In a subsequent point, it then goes on to state that it cannot be guaranteed that EU courts will follow or recognise such principle and that those with ongoing disputes on this day should obtain legal advice.

Conclusion

To summarise, the UK’s exit from the EU is unlikely to have a large effect on disputes between parties both based in EU Member States however, it is yet to be seen how civil litigation will be impacted where one of the parties are based within the UK. The answer on the impact will be largely dependent upon whether an agreement with Europe can be made, but also on how UK law will incorporate the other European conventions that we will remain privy to or rejoin, namely the Rome Treaties and the Hague Convention. There will be a desperate need for clarification on this, and also on how such treaties will apply during the transition stage should a deal fail once ‘exit day’ arrives. Ultimately, the picture remains imprecise. The guidance has provided a degree of clarity in regards to that we would may be relying upon, but what we have is far from a clear picture.


[1] Department for Business, Energy and Industrial Strategy, Handling Civil Litigation Cases that Involve EU Countries if There’s No Brexit Deal Before 29 March 2019 (Ministry of Justice, 2018)

[2]  Department for Business, Energy and Industrial Strategy, Handling Civil Litigation Cases that Involve EU Countries if There’s No Brexit Deal Before 29 March 2019 (Ministry of Justice, 2018)

[3] Department for Business, Energy and Industrial Strategy, Handling Civil Litigation Cases that Involve EU Countries if There’s No Brexit Deal Before 29 March 2019 (Ministry of Justice, 2018)

[4] Law Society, Family Law, Data, Civil Disputes – What Happens in the Wake of a No-Deal Brexit (12 November 2018)

[5] Nicola Gare, ‘Brexit – Impact of a ‘No Deal’ on English Disputes with EU Counter-Parties, < http://www.hfw.com/Brexit-impact-of-a-no-deal-on-English-disputes-with-EU-counter-parties>

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