International injury Partner Chris Deacon joined a panel of speakers at the Law Society’s Commercial Litigation conference on 29 September 2021 to talk about the enforcement of English judgments in Europe following Brexit.
Chris provided an update on the UK’s request for accession to the Lugano Convention and an insight into the challenges facing consumers, victims and employees seeking to enforce a judgment from the English courts in Europe following the end of the Brexit transition process. He spoke alongside Sarah Garvey of Allen & Overy and Elizabeth Williams of Simmons & Simmons. The session was chaired by Dr Helena Raulus, Head of the Law Society’s Brussels office.
Before and after Brexit
Under the European regime pre-Brexit, jurisdiction and enforcement went “hand-in-glove”. If you could establish jurisdiction in the English courts under the European regime, then enforcement of any judgment obtained in those proceedings would follow naturally through the automatic recognition and enforcement mechanisms of the Recast Regulation or Lugano.
The European regime was favourable for consumers, victims and employees by protecting these weaker parties to a dispute through various special jurisdiction provisions. This enabled them to bring proceedings against a defendant domiciled overseas in the individual’s home courts.
With the previous European regime now gone and no sight of UK accession to the Lugano Convention coming soon, Chris said: “The options open to individuals to ground jurisdiction in their home courts are more limited and more uncertain. Consequently, the all-important question of enforcement is now also more uncertain. Individuals must now grapple with the myriad of domestic laws on enforcement in each European country, which may be considerably less favourable and give rise to a real risk of a judgment not being enforceable. Enforcement, rather than being taken for granted, must now be considered by individuals from the outset, side-by-side with the question of jurisdiction.”
Questions of jurisdiction and enforcement
Chris talked through the common law gateways to establishing jurisdiction in England. He noted that even if the English courts are willing to exercise jurisdiction over a dispute, there remains a risk on enforcement as the foreign court may not recognise the English court’s jurisdiction. Chris cautioned: “In high-value disputes, this does not mean the claimant should shy away from bringing proceedings in England – that may well still be in their best interests.”
He continued: “It simply means that the considerations at the outset are different to what we have known and become comfortable with. The choice of forum requires greater consideration than it did before for such claimants, with enforcement of an English judgment in the relevant EU27/Lugano state central to the early considerations in a case. Unless and until the UK accedes to Lugano, there is a lack of certainty. It will be a question of weighing up and balancing the enforcement risks so a client can then make a fully informed decision on where to bring proceedings.”
Looking forward to future trends in jurisdiction and enforcement, Chris joined the other panellists in considering some of the shortcomings of the Hague 2019 Judgments Convention. This is an international convention dealing with the enforcement of judgments but is not comprehensive and is likely to leave a number of gaps in the protections afforded to weaker parties. The panel concluded by offering some practical tips on litigation strategy, including moving quickly to establish jurisdiction rather than waiting to see if the other side strikes first. Another suggestion was to weigh up the advantages and disadvantages of applying for default or summary judgment to maximise the prospect of the judgment being enforceable in Europe.
Summary in the Law Society Gazette
Chris was quoted in an article in the Law Society Gazette about the Commercial Litigation Conference 2021.
The article states:
‘“The European Commission has indicated that the Lugano Convention supports the EU’s relationship with third countries which have a particularly close regulatory integration with the EU. The commission suggested that that is not the UK,” Chris explained.
‘“Now that might be open to question given the unprecedented Trade and Cooperation Agreement that the UK has entered into with the EU – but the European Commission is sending out a signal that it sees the Hague Convention regime as being the way forward with the UK.”
‘Chris added that this issue has now been “kicked into the long grass” and has reached a “procedural impasse”.’
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