On 31 January 2020, the UK Prime Minister Boris Johnson announced with great fanfare that “we are leaving the European Union”. In reality, however, it will be business as usual until at least the end of 2020, with EU law continuing to apply in the UK while Brexit is in transition. In this article, Chris Deacon, partner, and Hannah Fletcher, trainee solicitor, examine what the Brexit transition period means for UK residents who are involved in a serious accident in the EU.

The transition period is good news for those seriously injured travelling in the EU, who will see important rights preserved until it ends. This provides an 11-month window of opportunity for the UK government to work with stakeholders, such as APIL and the Law Society, to ensure these important protections are maintained in the post-Brexit era.

As a UK resident who has been injured in an accident when visiting the EU, when can I bring my claim in the UK courts?

Currently, as a UK resident injured while visiting the EU, you have the right to pursue a claim against an EU-based defendant in your home courts in a number of important situations, including:

• The right to sue an EU-based insurer directly where such a direct right of action is permitted, which is notably the case for all EU motor accidents.
• A right to compensation from the Motor Insurers’ Bureau (MIB) if you are involved in a motor accident in the EU which is caused by an uninsured driver or a ‘hit and run’.
• The right to join the insured party to the proceedings brought against the insurer, although this is the subject of a reference to the Court of Justice of the European Union (CJEU) in the case of Cole v IVI so the legal position could change in the future. This is an important right in cases where suing the insurer alone may not be sufficient, for example, in serious injury cases where the defendant has limited insurance in place.
• If injured while enjoying services provided as part of a consumer contract, then the right to pursue a claim against the other party to the contract in the UK courts. Common examples include holiday accommodation and excursions or activities.
• Where there is a defendant based in the UK and another defendant based elsewhere in the EU, the right to bring the ‘foreign’ defendant into the English courts where there is a close connection between the claims against each defendant.

The above rights will continue to apply until the end of the transition period. They are rules that are designed to protect the weaker party to a claim and ensure that UK residents who have been seriously injured in the EU can pursue a claim for compensation against the party liable in their home court.

Practically speaking, being able to pursue a claim in your home court means language, difficulties with funding a claim and the prospect of travelling overseas for court hearings are not a barrier to access to justice, particularly for those who have been left seriously disabled by their injuries.

What if I have already started proceedings in the UK courts before the end of the transition period? Will my case remain in the UK courts?

If you have started proceedings in the UK during the transition period, the Withdrawal Agreement allows these proceedings to remain in the UK courts until they are concluded. This means that an EU-based defendant will not be able to challenge the jurisdiction of the UK courts if they have the power to deal with your case under the EU Regulation on jurisdiction and enforcement, known as the Recast Regulation.

Similar provisions are in place under the Lugano Convention in relation to jurisdiction against a defendant based in Norway, Switzerland and Iceland. The UK is party to the Lugano Convention by virtue of its (former) EU membership, and this will continue to apply during the transition period.

If I am successful in obtaining compensation in the UK courts, how can I secure what I am owed if the EU-based defendant does not pay?

Any judgment obtained in proceedings commenced in the UK before the end of the transition period will continue to be enforceable in the EU and Lugano countries in the same way as pre-Brexit, even if that judgment is made after the end of the transition period.

The mere threat of enforcement proceedings under the Recast Regulation or Lugano Convention is often enough to compel a defendant to pay any compensation due without delay. The same EU rules can be used by anyone in an EU member state who has a judgment requiring a UK-based defendant to pay money.

What about the impact on claims caused by an uninsured or unidentified motor vehicle in the EU?

If the motor insurer becomes insolvent, or the driver of the motor vehicle is uninsured or cannot be traced, EU law requires a compensation body in each EU member state to step in and fund the claim for compensation. In the UK, the compensation body is the MIB. During the transition period, these protections will remain in place. However, after the transition period, the European Motor Insurance Directives will cease to be part of UK law.

The MIB has been trying to enter into agreements with each EU member state to ensure that protections for UK residents injured by an uninsured or untraced driver abroad remain in place after Brexit. Worryingly, the MIB has reported that the compensation bodies of France, Poland and Romania have not yet agreed to sign the agreements with the UK.

This means that if you are the victim of an accident involving an uninsured/untraced driver in these countries after the end of the transition period, you may no longer be able to obtain compensation. The MIB is continuing to work to find a solution. However, this is one of the clearest examples of how those who suffer serious injury in the EU could be left with no means of redress whatsoever following Brexit.

What will happen when the transition period ends on 31 December 2020?

When the transition period ends, the picture for UK residents injured in the EU will look very different than it does now. The Recast Regulation, Lugano Convention and EU Motor Insurance Directives will no longer apply in the UK. The automatic right to bring proceedings against an EU-based defendant in the circumstances outlined above will fall away. It will also take longer to enforce a judgment from the UK courts as you will need to go through the legal procedures in the country where you are seeking to enforce rather than relying on automatic recognition and enforcement under EU law.

Important rights for individuals will, therefore, fall away unless steps are taken to incorporate them into UK law or replace them with alternative legislation before the end of the transition period.

What solutions are available to ensure the rights of injury victims are preserved after Brexit?

The UK could sign up to the Lugano Convention. Helpfully, the UK government has already made clear its intention to do so. The Lugano Convention mirrors the predecessor to the EU’s Recast Regulation, known as the Brussels I Regulation, and so enables consumers and victims of accidents overseas to bring proceedings in their home courts in certain circumstances. It also provides a framework for automatic recognition and enforcement of judgments in any of the other countries that are also a party (or ‘signatory’) to the convention.

The UK would need to apply to become a party to the Lugano Convention, which would require approval from all other signatories (the EU and EFTA Member States, other than Liechtenstein). Reassuringly, the UK has already received support from Norway, Iceland and Switzerland, but would also need consent from the EU itself to join the convention.

Another option would be for the UK government to negotiate a bilateral treaty with the EU, incorporating the same rights that currently exist on jurisdiction and enforcement, and maintaining the protections provided by the EU Motor Insurance Directives. This would likely be a long and complicated process of negotiation and, as with the Lugano Convention, would ultimately require the EU’s cooperation. There may also be limited appetite on the part of the UK government to fully align with the EU Motor Insurance Directives given moves to extend the remit of compulsory motor insurance.

As things stand, signing up to the Lugano Convention is the most obvious way of maintaining alignment on jurisdiction and enforcement, and protecting the rights of UK residents who are injured overseas, when the transition period ends.

It is important that anyone involved in an accident in the EU during the transition period, and indeed following Brexit, seeks specialist advice. This is because, even though the legal position is currently clear, there could be an increase in challenges from EU-based defendants when UK victims of accidents try to bring a claim in the UK courts.

You can find further information regarding our expertise, experience and team on our International Injury pages.

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