The Effects of Brexit on International Injury Claims
Written by Michael Hagan, Associate & International Injury Solicitor
Ever since (and before) the UK left the European Union, the pros and cons of Brexit have been the subject of fierce debate. However, as a travel litigation specialist practicing in the jurisdiction of England & Wales, I can say without doubt that one area in which Brexit has had a negative effect for citizens, is in respect of access to justice in foreign accident claims.
Loss of Rights
The rights that have been lost wouldn’t have been known to the vast majority of the general public and certainly weren’t the subject of much (if any) discussion in the media prior to the referendum in 2016. However, as a lot of injured holidaymakers are now discovering, the loss of those rights can have a profound effect on the ability of people to obtain access to justice.
Pre-Brexit, if a resident of England or Wales was injured as the result of negligence of a third party in the EU, they would, in the vast majority of cases, have a clear right to sue the insurer of the third party in the English Court. They would often also be able, if necessary, to sue the third party themselves (the right of a Court to deal with a claim is known as ‘jurisdiction’).
Foreign law would often apply to the claim, but the ability to bring the claim in their home courts, was a convenience and comfort on which citizens of England & Wales could normally rely.
Since leaving the EU, we no longer benefit from this route to jurisdiction (which arose by virtue of European-wide legislation). Now an English or Welsh national who is injured, for example, in a road traffic accident in an EU country, must not only show that they have sustained ‘damage’ on their return home, but also prove that their home courts are the ‘most appropriate place’ for the claim to be brought. This can be very difficult when, inevitably, the accident has happened in a foreign country, involves defendants based in that (or another) country and to which a foreign law applies.
Put simply, where once there was certainty, there is now uncertainty, and an injured party may not know, for months after initiating their claim, whether they will be able to sue the foreign defendant(s) in the English Courts.
As Claimant travel lawyers, we have been advocating for entry into what is known as the ‘Lugano Convention’ which is a legal framework for cooperation between the EU and a number of non-EU European countries which, if successful, would give citizens of England and Wales something akin to the jurisdictional rights they previously enjoyed, pre-Brexit.
So far, our efforts to join ‘Lugano’ have not been successful, although very recently there have been some more positive noises from the EU.
Specialist Travel Lawyers
Whilst it is hoped that we’ll be able to return to something approaching the ‘old rules’, for now Claimants will require, more than ever, expert advice from seasoned travel lawyers, to guide them through the uncertainty of the post-Brexit jurisdictional landscape.