Earlier this year, the European Parliament published a report entitled ‘Ensuring Efficient Cooperation with the UK in civil law matters: Situation after Brexit and Options for Future Cooperation’. The report looks at the impact of Brexit in the field of judicial cooperation in civil matters, which includes aspects of family law and claims for personal injury damages.
The report considered the implications of the EU Commission’s decision to block UK reaccession to the Lugano Convention (“Lugano”) and suggests areas where closer cooperation should be pursued between the EU and the UK in the future. International Injury partner Christopher Deacon and Divorce and Family partner Lisette Dupré examine the report.
Arguably, the biggest impact of Brexit in the field of judicial cooperation in cross-border matters is access to justice for ordinary citizens of the UK and EU. The impact is felt most acutely in the context of an accident that causes serious injury, holding large corporations to account for human rights abuses and in the field of family law.
The European Parliament is known for being an advocate for the rights of individuals as consumers, workers and victims. It is perhaps with good interest, therefore, that the UK might look to its report as a barometer on the changes Brexit has introduced and the important question of the UK’s reaccession to Lugano.
The impact of Brexit on EU and UK citizens
The European Parliament’s report recognises the significant impact of Brexit on individuals, stating: “…the UK’s withdrawal has resulted in a severe impairment of inter-country cooperation in judicial matters, diminishing the effectiveness of judicial protection both for EU citizens and entities and… for UK citizens and entities.”
Before Brexit, weaker parties to a dispute benefited from special provisions on jurisdiction, giving a wider choice as to where they could bring a claim for damages. If the claim fell within the European rules on jurisdiction set out in the Brussels Recast Regulation or Lugano, the defendant could not challenge jurisdiction on the basis that the courts of another country were a more appropriate place to hear the claim. In other words, a defendant could not challenge jurisdiction under the common law doctrine of forum non conveniens (“FNC”). Furthermore, any judgment arising from proceedings brought under the European jurisdiction rules could be easily enforced across the EU, Switzerland, Norway or Iceland.
Weaker parties being denied access to justice
By blocking the UK’s reaccession to Lugano, the EU is currently denying weaker parties important protections that enable full access to justice. Where proceedings can be brought in the UK courts, defendants are able to raise arguments on FNC, giving rise to uncertainty and additional cost. Even if a claimant can overcome the FNC hurdle, uncertainty remains on the question of enforcement of judgments. This question must currently be tackled on a case-by-case basis, which is particularly unsatisfactory for individual citizens of the UK and EU and, in some instances, is an insurmountable hurdle to bringing a claim.
Given the profound impact of Brexit on access to justice for individuals, it is concerning that the report focuses much of its attention on commercial disputes and the potential economic benefits to the EU of the specialist commercial courts established there in recent years. The creation of international commercial courts is a global phenomenon dating from before Brexit. In reality, commercial parties will continue to choose where and how to resolve their disputes. They are more likely to reap the advantages of the Hague Convention on Choice of Court Agreements 2005 and the Hague Judgments Convention 2019.
Protection of consumers and workers
The European Parliament highlights how the UK has ‘nationalised’ two important aspects of the European regime on jurisdiction that give enhanced protections to consumers and employees. These enable consumers and employees to bring proceedings in their home courts in the UK against a party domiciled in the EU and restrict where weaker parties to a dispute can be sued by a UK or EU-based defendant.
However, the European Parliament’s report fails to recognise two important shortcomings to the ‘nationalisation’ of the consumer and employment contract jurisdictions. Firstly, under the ‘nationalised’ UK rules, a defendant could raise an FNC argument to challenge jurisdiction. Secondly, if an individual successfully establishes jurisdiction pursuant to these rules, recognition and enforcement of a judgment does not necessarily follow. The judgment must be enforced on a case-by-case basis and is subject to the rules in the receiving state.
Actions against insurers
Direct actions against insurers have not been imported into the UK’s legal landscape post-Brexit, despite this being a central foundation to the special jurisdiction provisions aimed at protecting weaker parties, notably serious injury victims. Direct action is frequently relied upon in motor claims. It is also available in other cases depending on the applicable law, including for claims against the insurers of accommodation or holiday excursion providers.
Following Brexit, the UK retained the Rome II Regulation, which determines the law applicable to non-contractual damages claims. Article 18 of Rome II enables an individual to bring a direct action against a liability insurer if the applicable law permits such an action. However, this does not overcome the challenge of enforcing a judgment from the UK courts that a victim has obtained in reliance upon Article 18.
Negative impact of FNC in holding multinationals to account
The European Parliament recognises the negative impact the principle of FNC has in holding multinational companies to account and that this “deserves consideration”. The EU Commission’s current stance on UK reaccession to Lugano has prompted the United Nations Working Group on the issue of human rights and transnational corporations to write directly to its president.
The overall weakening of protections previously afforded to individual citizens, which benefited serious injury victims in a cross-border context, also deserves urgent consideration by the EU.
The European Parliament underestimates the enforcement hurdles that individuals may now face on a country-by-country basis in the absence of Lugano. The report states:
“International experience shows that in most cases the grounds of opposition to the recognition of a foreign judgment are based on the pendency of another proceeding on the same subject before the national court, or on the existence of a judgment already rendered in the target jurisdiction.”
The experience of serious injury victims in the UK is that the key basis on which they might now bring a claim in their home courts (based on a wide definition of damage supported in the case of Brownlie  UKSC 45) is undermined by the lack of an effective enforcement regime between the UK and EU. It is possible that a judgment arising from proceedings in the UK may not be recognised in the relevant EU27 member state where an individual seeks enforcement.
Brexit has left a patchwork of provisions
The European Parliament acknowledges that Brexit has left a patchwork of provisions on applicable law, jurisdiction and enforcement, giving rise to uncertainty and increased costs on all sides, noting:
“… Brexit, and the … UK’s non-participation in the Lugano Convention, has fragmented the legislative landscape, causing international judicial cooperation to regress.
“Large corporations, especially multinationals, which can rely on the assistance of specialised law firms, will be less affected by this fragmentation. It is also foreseeable … that such companies will continue to approach the UK Courts on the basis of exclusive agreements under the Hague Convention and that they will be able to cope with the increased costs that will inevitably arise both in terms of conflicts of jurisdiction and opposition to the effectiveness of domestic judgments in the EU and vice versa.”
An olive branch from the European Parliament?
Encouragingly, in conclusion, the European Parliament recognises the importance of establishing “negotiations on specific and limited matters of particular social relevance as a first step in rebuilding a system of international cooperation between the EU and the UK”.
A welcome olive branch suggests “a climate of mutual trust could be rebuilt”. This includes divorce and legal separation, maintenance obligations, small claims, cross-border insolvencies and SLAPPS (strategic lawsuits against public participation). However, the proposals would not plug all the gaps left for individual citizens by the UK’s non-accession to Lugano.
International Injury partner Christopher Deacon says: “In the absence of the UK’s reaccession to Lugano, future agreements between the EU and the UK should also extend to securing the special jurisdiction and enforcement provisions for the benefit of weaker parties to disputes across the EU and UK.
“Permitting the UK’s accession to Lugano would go a long way to remedying the lacuna created by Brexit and reintroduce a predictable, streamlined procedure enabling full access to justice for individual citizens of the EU and the UK who have their rights infringed.
“If the UK’s reaccession to Lugano remains a political red line for the EU, with the will of the European legislature and the UK government, steps could be taken to put in place an agreement that replicates the protections afforded to individual citizens through the special jurisdiction and enforcement provisions of Lugano. The European Parliament contemplates such an approach in the field of divorce and legal separation. There is a strong argument that such future cooperation should include enhanced protections for serious injury victims with a special jurisdiction and enforcement framework between the EU and the UK aimed at protecting weaker parties to a dispute.”
Divorce and Family partner Lisette Dupré says: “It is encouraging to see the European Parliament acknowledge the importance of considering how Brexit has impacted the weakest in society, including children and their families. The issues in family law are more nuanced, which means reaccession to Lugano may resolve some issues but also create new challenges. A bespoke agreement with the EU plugging gaps left behind by Brussels ll bis and the Maintenance Regulation is a positive suggestion by the European Parliament.
“While it would take time to discuss and negotiate those agreements, many would agree it could benefit families significantly, not least due to a significant reduction in the risk of conflicts of competence between different jurisdictions and difficulties with enforcement. However, we need to get on with it. We are nearly three years on from the end of the transition period, and moving from one system of laws to another is not easy.”
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