A “no-deal” Brexit for civil litigation
The long goodbye is over. Following the Brexit referendum in June 2016, the UK formally left the EU on 31 January 2020. Transitional provisions were in place until 31 December 2020, with the EU-UK Trade and Cooperation Agreement applicable from 1 January 2021.
The agreement was rightly been met with sighs of relief, given the alternative. However, the agreement is largely silent on civil justice issues. This, in effect, leaves us with a “no-deal” scenario in relation to jurisdiction and enforcement of judgments, the service of legal process and the taking of evidence in civil and commercial matters.
Enforcement of judgments
From a civil litigation perspective, EU membership provides a crucial benefit in allowing a judgment obtained in one member state to be enforced with relative ease in other member states, thanks largely to the EU Regulation No. 1215/2012 (the Brussels I Regulation (recast)).
The Brussels Recast regulation no longer applies to enforcement, in Ireland, of UK judgments in cases commenced after 1 January 2021. We look at the mechanisms now available for the enforcement of UK judgments in this jurisdiction and possible future developments.
Transitional provisions - UK proceedings instituted before 31 December 2020
The Withdrawal Agreement between the EU and the UK (Article 67(2)) provides that recognition and enforcement of UK judgments in proceedings instituted before 31 December 2020 (the end of the transition period) remain governed by the European regime.
We may therefore see a significant tail of UK judgments made after 1 January 2021 which are permitted enforcement in Ireland because they arise from proceedings issued before 31 December 2020.
New cases - UK proceedings instituted from 1 January 2021
Where UK judgments arise from proceedings instituted from 1 January 2021, recognition and enforcement in Ireland will be governed by common law rules of private international law, supplemented by the Hague Convention on Choice of Court Agreements 2005, if applicable.
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Hague Convention
The UK acceded to the Hague Convention on 1 January 2021. For the Convention to apply to our scenario (enforcement of UK judgments in Ireland) there must be:
- an exclusive jurisdiction agreement in favour of the UK Courts, and
- that exclusive jurisdiction agreement must post-date the coming into force of the Convention in the UK.
It is not yet clear whether EU member states will treat the Convention as having been in force for the UK since 1 October 2015 (when it came into force for the EU generally), or only from when the UK re-joined on 1 January 2021. The EU commission, in a guidance note published on 27 August 2020, is of the view that “the Convention will apply between the EU and the United Kingdom to exclusive choice of court agreements concluded after the Convention enters into force in the United Kingdom as party in its own right to the Convention.”
If the convention applies to a UK judgment which is then to be enforced in Ireland, a declaration of enforceability will be required from an Irish court (unlike under Brussels Recast). An application for such a declaration is made ex-parte to the Master of the High Court, in accordance with the provisions of Order 42D of the Rules of the Superior Courts of Ireland. Recognition or enforcement may be refused on particular grounds set out in Article 9 of the Convention, such as fraud or public policy.
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Common Law Rules
If a UK judgment does not fall within the scope of the Hague Convention, litigants must look to common law rules of private international law and satisfy three requirements, namely that:
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The judgment is for a liquidated sum
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The judgment is final and conclusive, and
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The judgment was handed down by what the Irish courts could view as a court of competent jurisdiction.
If the above requirements are met, then proceedings for enforcement may be commenced by way of summary summons, in which summary judgment in the amount of the judgment debt is sought. The jurisdiction of the Irish courts to enforce a foreign judgment in this manner is discretionary – for example, enforcement may be refused on grounds of public policy or natural justice.
Potential future developments
The UK has applied to accede to the Lugano Convention 2007 (“Lugano”) but requires the other contracting states to consent to its application (EU member states and EFTA countries (Lichtenstein, Norway, Switzerland and Iceland)).
Lugano provides a relatively straightforward procedure of reciprocal enforcement between acceding states and the UK’s accession to the Convention would bring welcome clarification in terms of the enforcement of UK judgments in Ireland.
Conclusion
On a practical level, the date of institution of the UK proceedings determines the procedure for enforcement of a later judgment in Ireland:
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UK judgments in proceedings issued by 31 December 2020 may be enforced in accordance with the old Brussels regime, and
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UK judgments in proceedings issued from 1 January 2020 may be enforceable under the Hague Convention or under the common law but this position will change if the UK’s application to join Lugano is accepted.
We have focused here on the enforcement of UK judgments in Ireland but the procedure for the inverse – enforcement of Irish judgments in the UK - will also be a matter of concern. The Hague Convention, common law rules of private international law and Lugano will all be of relevance but, ultimately, local UK advice will be required to determine the correct procedure.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
