The Hague Judgments Convention 2019 (“Hague 2019”) is an international law instrument that provides a framework for recognising and enforcing judgments between the courts of contracting states. The convention has now been acceded to by the EU on behalf of its 27 member states and ratified by Ukraine, meaning it will come into force on 1 September 2023. Ratification by the UK is expected soon, although the recent change of government has slowed the Ministry of Justice’s progress.
Hague 2019 is therefore likely to form an integral part of the legal landscape in the UK for cross-border enforcement following Brexit. However, do Hague 2019’s limitations mean that judgments obtained by serious injury victims in the UK courts will continue to fall through the gaps left by Brexit and the protections afforded to weaker parties by the European regime (the Recast Regulation and Lugano Convention)? Christopher Deacon explains here.
How does Hague 2019 apply to enable recognition and enforcement of judgments?
Hague 2019 operates by permitting recognition and enforcement of a judgment falling within its scope, provided one of the jurisdictional filters set out in the exhaustive list in Article 5 is satisfied. The jurisdictional filters include factors relating to the habitual residence of the parties, the place of performance of a contractual obligation and a party consenting to jurisdiction in the “state of origin” of the judgment (ie the state of the courts from which the judgment has originated).
Importantly, in Article 5.2, there are protections for consumers and employees as weaker parties to a dispute where another party is seeking to enforce a judgment obtained against such an individual. The intention of this restriction is to try to limit enforcement against consumers/employees to judgments given in the state of that individual’s habitual residence only unless the individual has expressly consented to the jurisdiction of the courts of another state.
What are the limitations on Hague 2019 that will affect serious injury victims?
Unfortunately, there are a number of limitations and exclusions from the scope of Hague 2019, which means it may be of limited assistance to serious injury victims. In the absence of the European regime or a relevant bilateral treaty, such victims will need to continue to rely on the domestic rules in the state where they are seeking enforcement.
Carriage of passengers and goods
Article 2.1(f) excludes the carriage of passengers and goods from the scope of Hague 2019. Part of the rationale for this is that there are other international conventions governing the carriage of passengers, for example, the Montreal Convention for carriage by air and the Athens Convention for carriage by sea. However, the exclusion extends to a common scenario not necessarily covered by another international convention: a claim for damages by a passenger in a car. Paradoxically, a non-passenger injured in the same accident could rely on Hague 2019 to enforce a judgment for damages, giving rise to considerable unfairness and putting two innocent victims of the same accident on an unequal footing on the issue of enforcement.
Interim damages and costs awards and preliminary requests for disclosure
Under Article 3.1(b), the definition of “judgment” excludes interim measures. This will likely exclude from the scope of Hague 2019 the enforcement of an interim award of damages, which can be vital to serious injury victims. This limitation may also cause difficulty for the weaker party to a dispute when, for example, seeking to enforce an order for disclosure or preliminary action taken in proceedings. Examples of such preliminary proceedings include an order for pre-action disclosure in England and Wales, a party taking advantage of the Article 145 pre-action disclosure procedure under the French Code of Civil Procedure or the diligencias procedure available in Spain.
The tort gateway to jurisdiction in England and Wales and indirect damage
One of the most notable of Hague 2019’s limitations is the requirement that for a claim in tort, the damage must have occurred in the state of origin. Article 5.1(j) says that a judgment is eligible for recognition and enforcement if one of the following requirements is met:
“… the judgment ruled on a non-contractual obligation arising from death, physical injury, damage to or loss of tangible property, and the act or omission directly causing such harm occurred in the state of origin, irrespective of where that harm occurred.”
Many injury victims rely on an alleged tort/breach of a non-contractual obligation as the basis for their claim for damages. Under English law, following the UK Supreme Court’s decision in Brownlie [2021] UKSC 45, the victim of a serious injury overseas has the option of returning to the courts of England and Wales and bringing a claim for damages under the tort gateway at Civil Procedure Rule 6BPD 3.1(9)(a).
In doing so, the victim must rely on the fact that they are suffering ongoing losses and the indirect financial consequences of an accident abroad on returning home. A judgment obtained in reliance on the Brownlie jurisdiction rules is likely to be unenforceable using Hague 2019 because the convention appears to require the “act or omission” to have occurred in the state of origin of the judgment; suffering the “indirect, ongoing consequences of the act or omission” in the state of origin of the judgment will not suffice.
Fatal accidents and claims for financial dependency
Hague 2019 could also arbitrarily exclude enforcement of a judgment obtained by a claimant bringing a claim for loss of financial dependency on the deceased following a fatal accident on the basis this is an “indirect” loss. This is because Article 5.1(j) refers to harm being “directly caused”, which may exclude indirect loss consequential to the original injury or death. On the other hand, as the claim for financial dependency “arises from the death”, it may be within scope. The approach in the Explanatory Notes is that the question of interpretation of this part of Hague 2019 should be left to national courts, further highlighting the uncertainty of the regime for weaker parties.
Public policy and refusal of recognition and enforcement
Article 7 sets out the basis on which a judgment may be refused recognition or enforcement by the “Requested State” (ie the courts of the state where a party is seeking to enforce a judgment). This is a standard provision in international enforcement regimes, permitting a state to refuse recognition and enforcement on public policy grounds.
One of the concerns for serious injury victims who have obtained a judgment from the UK courts is that their claim is likely to have been pursued under a conditional fee agreement, colloquially referred to as a “no win, no fee” arrangement. This is a method of funding that enables access to justice for injury victims in the English courts. At the successful conclusion of the claim, an injury victim can expect to not only have a judgment ordering the defendant to pay damages but also a judgment requiring the defendant to pay the majority of the legal costs incurred by the victim in pursuing their claim.
Even under the European regime, some courts resisted the enforcement of English judgments on the basis that an award of costs under the English loser-pays principles offended public policy. The Greek Court of Appeal has previously ruled against enforcement of an English costs award on the basis the costs were “excessive”, a decision overruled by the Greek Supreme Court under the European regime on the basis it was a breach of the EU law concept of mutual trust. It remains to be seen how contracting states will interpret and apply the public policy exemption in Article 7 of Hague 2019. However, previous experience demonstrates the uncertainty for victims, delay and additional costs they might face in trying to defeat public policy arguments on enforcement.
Punitive damages awards
Article 10 says that enforcement of a judgment may be refused if it includes damages that do not compensate a party for actual loss or harm suffered. This provision aims to exclude punitive damages awards from the scope of Hague 2019. While those awards are not available under English law, they are often awarded to claimants who suffer injury at the hands of large corporations in proceedings brought in a number of US states. If the victim then wanted to seek enforcement against a corporation in a Hague 2019 contracting state, it would be unable to rely on the convention to enforce the punitive damages element of the award.
What are the next steps for the UK and Hague 2019?
The UK government will likely undertake a public consultation on Hague 2019 before the end of 2022. Following that, we can anticipate the UK taking steps to accede to the convention.
Hague 2019 should be welcomed as a positive addition to the UK’s private international law landscape following Brexit. Indeed, as more states ratify Hague 2019 as an international convention, its reach will go further than the EU and enable recognition and enforcement of qualifying judgments across the globe.
At the same time, it is clear that more needs to be done to ensure serious injury victims seeking to enforce a judgment overseas have an effective mechanism for doing so. As things stand, even with the UK’s ratification of Hague 2019 looking to be on the horizon, injury victims will likely need to continue to rely on the domestic rules of enforcement on a case-by-case basis depending on the country in which they are seeking enforcement, with accompanying uncertainty, delay and additional cost.
You can find further information regarding our expertise, experience and team on our International Injury page.
If you require assistance from our team, please contact us.
Subscribe – In order to receive our news straight to your inbox, subscribe here. Our newsletters are sent no more than once a month.
