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This article was published prior to the publication of the post-Brexit agreement between the UK and EU which covers the relationship between the UK and EU following the end of the implementation period (commonly referred to as the “transition period”) created by the European Union (Withdrawal Agreement) Act 2020, and should be read in that context. For up-to-date commentary and information on our services, please see our Beyond Brexit page.
PM Theresa May has announced that she intends to trigger Article 50 and begin negotiations to exit the EU by March 2017. What does this mean for ongoing and future disputes?
The Government has also proposed the repeal of the European Communities Act 1972, the legislation which gives EU law supremacy in the UK. Presently, EU legislation (in particular the Recast Brussels Regulation) governs jurisdiction, choice of court and the recognition and enforcement of domestic judgments in the EU. Moving forward, in a post-Brexit world, any number of regimes may apply depending on the decisions of the UK Government, including retaining the Recast Brussels Convention, adopting the Lugano Convention or the Hague Convention or adopting none of the above.
Commercial parties can in most circumstances contractually agree where a dispute between them should be resolved. If there is no jurisdiction regime in place, the English Courts are likely to respect such contractual agreements but uncertainty arises because the courts of EU member states may not.
The Recast Brussels Regulation currently provides for the mutual (automatic) recognition and straightforward enforcement of court judgments within the EU. In the absence of such a convention post-Brexit, the process will depend on individual countries - this will cause uncertainty, delays and probably increased costs. There is also considerable uncertainty around the recognition of alternative relief, for example, an injunction or specific performance.
Currently, if you wish to commence proceedings and serve a party outside of England and Wales, you should apply for permission to serve out of the jurisdiction. However, if service is to be effected within the EU (and the English Courts have jurisdiction) there is no need to apply for permission. Removal of the Recast Brussels Regulation, with no replacement regime, will mean you have to seek permission to serve out, likely increasing both time and costs.
If you are in the process of negotiating contracts right now, you may have the luxury of being able to plan ahead - for example, it may be advisable to appoint an agent for service of process.
But what about existing litigation? If you are looking to issue proceedings soon, jurisdiction will remain as per the status quo for the time being. You may consider issuing proceedings quickly if jurisdiction is likely to cause problems outside of the current regime. Where proceedings are issued, you may also wish to consider seeking to obtain a judgment as soon as possible, before the Brexit uncertainty arises, to take advantage of the existing recognition and enforcement of judgments regime.