The Hague Judgments Convention (Hague 2019) provides a framework for recognising and enforcing judgments between the courts of contracting states. When it comes into force in the UK in 2025, it will significantly widen the scope for enforcing a UK judgment in the EU27. Although a constructive step forward, it has limitations, including in relation to victims of an accident abroad who return to the UK and choose to bring proceedings in their home courts.

International Injury partner Chris Deacon has examined the limitations of the Hague Judgments Convention for the victims of accidents abroad in the EU in a letter published by the Law Society Gazette, and a full-length article for the 2 August 2024 edition of New Law Journal reproduced in full here.

Introduction

The Hague Conference on Private International Law has confirmed that on 27 June 2024, the UK deposited its instrument of ratification of Hague 2019, an international convention that provides a framework for recognising and enforcing judgments between the courts of contracting states.

Hague 2019 will enter into force in the UK on 1 July 2025 and will apply to proceedings commenced from that date onwards. It forms an important part of the UK’s legislative landscape in the field of cross-border enforcement, particularly following Brexit. Hague 2019 entered into force in the EU (except Denmark) from 1 September 2023 and will significantly widen the scope for enforcing a UK judgment in the EU27. Ukraine and Uruguay have also ratified the convention.

What are the main limitations of Hague 2019 for victims of an accident abroad?

While the UK’s adoption of Hague 2019 is a constructive step forward, it has several limitations for individuals, consumers and victims seeking access to justice. It will not plug the gaps that remain following Brexit for the victims of accidents abroad in the EU. The most notable limitations of Hague 2019 include:

• the exclusion of the carriage of passengers and goods;
• the exclusion of interim remedies, which will impact interim damages and costs payments;
• the requirement that for a claim in tort, the damage must have occurred in the state of origin, ie, the country from which the judgment a party is seeking to enforce emanates; and
• the potential exclusion of the 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 might be viewed as an ‘indirect’ loss when national courts are interpreting Hague 2019.

How is jurisdiction relevant to enforcement under Hague 2019?

An individual seeking to enforce a judgment in reliance on Hague 2019 will need to satisfy at least one of the jurisdiction gateways or filters. These are set out in Art 5 and focus on the basis on which the UK court has exercised jurisdiction over the dispute. 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).

Article 5.2 provides important 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.

How does recognition & enforcement of a judgment work under Hague 2019?

The recognition and enforcement of a judgment is not automatic, with Hague 2019 setting out the grounds on which enforcement can be refused. Those grounds include, for example, enforcement against a defendant who has not received proper notice of the proceedings or if enforcement is considered manifestly incompatible with public policy in the country where an individual is seeking enforcement (a concept that has previously caused problems in the recovery of legal costs in addition to damages). The requirements around notice of proceedings may prove challenging for individuals who face an uncooperative defendant and where service is required overseas.

How might Hague 2019’s limitations impact the victims of an accident abroad?

Hague 2019’s limitations mean that victims of an accident abroad who return to the UK and choose to bring proceedings in their home courts may face uncertainty as to whether they will be able to enforce a judgment if the defendant fails to pay what a UK court has ordered at the successful conclusion of their claim.

The position varies depending on the country where the victim may be required to enforce a judgment. This means the local rules on enforcement will likely require careful analysis on a case-by case basis if a defendant fails to pay. Not only does this increase uncertainty, but it also adds to the costs for serious injury victims and, in some instances, may pose an insurmountable barrier to access to justice.

An acute illustration of the challenges is enforcement in France. It is estimated that over 7m UK residents visited France in 2022, the latest year for which statistics appear to be available. While only a small number of those visitors will have to take legal action following a serious injury, those who do could be disproportionately impacted by the uncertain legal landscape on enforcement of a UK judgment at one of the most vulnerable times they are likely to experience in life.

There are instances where the UK courts will accept jurisdiction following an accident in France involving a defendant who is based in France. There are, however, mixed views among practitioners as to whether a UK judgment can then be enforced in France if a defendant does not pay what is ordered, particularly if the UK court has accepted it has jurisdiction to hear a claim on a basis that French law does not recognise.

This extends to the so-called tort gateway, where the English courts adopt a wide interpretation of the concept of damage and will exercise jurisdiction over a claim following an accident abroad on the basis that the serious injury victim is continuing to suffer the ongoing impact and losses on their return home to England and Wales.

What should the new UK government do to improve the enforcement rights & protections of victims & consumers?

For countries that remain close trading partners and with a shared interest in continuing to promote a high degree of consumer protection, there is a strong argument for revisiting the position on both jurisdiction and cross-border enforcement for weaker parties to a dispute.

Those campaigning for the rights of cross-border injury victims had been holding out hope that a change of UK government might reset the dial with the EU and finally open the way to the UK’s re-accession to the Lugano Convention. Lugano deals with cross-border jurisdiction and enforcement between signatory states, which includes the EU27, Switzerland, Norway and Iceland. It includes key protections for cross-border injury victims, consumers and employees, and provides a relatively straightforward procedure for enforcing a judgment between the signatory states.

On the eve of winning a landslide majority, however, Labour leader and now prime minister Sir Keir Starmer was reported in The Guardian as insisting the UK will not rejoin the EU, single market or customs union in his lifetime. As the EU sees Lugano as an integral part of the single market, it will take a shift in position on one side of the negotiation or the other for the benefits and protections of the Lugano Convention on cross-border jurisdiction and enforcement to return.

While the UK ratifying Hague 2019 is a positive step forward in the field of international enforcement of judgments, particularly between the UK and EU post-Brexit, there remain significant gaps in the protections needed for victims, consumers and employees. Very often, these individuals will be pursuing a claim at one of the most vulnerable moments in their lives, particularly following an accident abroad.

If the UK’s re-accession to Lugano remains a political red line then steps could and should now 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. An alternative is for the UK government to prioritise bilateral arrangements with those EU countries the UK has the strongest trading relations with and that are most frequented by visitors from the UK.

A new bilateral agreement on cross-border citizens’ rights, providing much needed certainty for victims of accidents abroad as they navigate a difficult and vulnerable time in their lives, should be prioritised by Shabana Mahmood and her colleagues at the Ministry of Justice when they are reviewing our relationship with the EU and the rest of the world in the field of private international law and civil justice.

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