Stewarts recently responded to the Ministry of Justice’s consultation on the Hague Convention of 2019 on the recognition and enforcement of foreign judgments. The response, led by Chris Deacon and Grace Horvath-Franco, outlined why the UK should join Hague 2019. It also highlights some of the convention’s shortcomings, notably in relation to the protection of serious injury victims and consumers.
Joining Hague 2019 will help fill some of the gaps left by Brexit concerning the enforcement of judgments between the UK and EU. It also has the potential to facilitate the enforcement of judgments with the rest of the world.
The UK economy will likely benefit from certainty on the enforcement of judgments falling within the scope of Hague 2019, with a side effect of the convention being the support of international trade. Hague 2019 reassures UK businesses that effective mechanisms are in place to secure enforcement in other jurisdictions. As such, we believe UK and overseas businesses will be more inclined to operate across borders and enter into cross-border contracts and investment relationships with each other.
In broad terms, accession to Hague 2019 would be a positive step in opening the way to more effective cross-border recognition and enforcement of judgments. However, there remain several notable shortcomings in its enforcement regime, particularly for individuals, consumers and victims seeking access to justice, such as:
- 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
- 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, and
- the exclusion of punitive damages awards, which will be of particular relevance should the United States of America ratify the convention.
The shortcomings of Hague 2019 are further detailed in Chris’ previous article.
In its consultation response, Stewarts emphasised that alongside joining Hague 2019, re-joining the Lugano Convention must remain a high priority for the UK government and the EU. The Lugano Convention is a more comprehensive framework on jurisdiction and enforcement of judgments between the UK and the EU/EFTA states. In particular, the Lugano Convention provides greater protection to weaker parties to a dispute.
Chris Deacon, a partner in the Aviation and International Injury department at Stewarts, said:
“It is clear more needs to be done to ensure victims of serious injury seeking to enforce a judgment overseas have an effective mechanism for doing so. Even with the UK’s ratification of Hague 2019, in many common scenarios, cross-border injury victims will likely need to continue to rely on the domestic rules of enforcement, depending on the country where they seek enforcement. This will result in accompanying uncertainty, delay and additional cost. We have highlighted those concerns in our response to the UK government’s consultation on Hague 2019.
“We look forward to continuing to work on improving access to justice and certainty on jurisdiction and enforcement for serious injury victims, consumers and employees.”
Stewarts’ full response to the consultation can be read here.
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