“No-deal” Brexit for Cross Border Enforcement of Judgments?
19 March 2021
The long goodbye is over. The newly struck EU-UK Trade and Cooperation Agreement has rightly been met with sighs of relief, given the alternative. However, the agreement is largely silent on civil justice issues. We review the impact of this “no-deal” scenario on the ability of UK litigants to enforce a judgment in Ireland and examine the relevant procedures, depending on when the UK proceedings were instituted and any underlying agreement between the parties on jurisdiction.
We also 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 commenced before 31 December 2020, i.e. 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 to be enforced in Ireland because they arise from proceedings issued before the end of the transition period.
New cases - UK proceedings instituted from 1 January 2021
Where UK judgments arise from proceedings commenced on or after 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.
1. Hague Convention
The UK acceded to the Hague Convention on 1 January 2021. For the Convention to apply to the 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
Where the Convention applies, an application to the Irish courts is required and this application may be refused if particular grounds set out in Article 9 of the Convention arise, such as fraud or public policy.
2. 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:
- The judgment is for a liquidated sum
- The judgment is final and conclusive, and
- 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. This jurisdiction of the Irish courts in this regard 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 but requires the other contracting states to consent to its application. Lugano provides a relatively straightforward procedure of reciprocal enforcement between acceding states and the UK’s accession to the Convention would bring welcome clarification to this process.
On a practical level, the date of commencement of UK proceedings determines the procedure for enforcement of a later judgment in Ireland and if the UK is permitted to accede to the Lugano Convention, the procedure will be simplified.
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 arise post Brexit. 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.
For more information on successfully resolving cross border disputes, contact a member of our Dispute Resolution team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
 “Brussels Recast” regulation No. 1215/2012