Impact of Brexit on enforcement

How will a claimant who has commenced proceedings in an English court be able to serve a defendant based in the EU?

Previously, English court proceedings were able to be served on defendants in other EU member states in accordance with the Service Regulation which permits a variety of methods of service and is relatively quick and cost effective.

Now the Implementation Period has ended, claimants can instead effect service on defendants in most other EU Member States in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Convention on Service Abroad). The Hague Convention on Service Abroad provides that each contracting state designate a Central Authority to receive and execute requests for service originating in other contracting states. In some cases this is likely to be slower than service under the Service Regulation.

However, parties to any contract containing a submission to English jurisdiction should include within commercial agreements a contractual provision authorising service on a process agent at an address within England and Wales. Such service, in accordance with the Civil Procedure Rules (CPR 6.11), is quicker and simpler than service under the Service Regulation and is unaffected by Brexit.

How will jurisdiction agreements be affected?

The UK submitted its application to accede to the Lugano Convention on 8 April 2020. However, acceding to the Convention requires the consent of all of the current contracting members to the Convention and they have yet published their decision on whether the UK will be allowed to accede to the Convention at the end of the implementation period. Moreover, one key difference is that the Lugano Convention does not provide that where proceedings are commenced in a EU member state court in apparent breach of an exclusive jurisdiction clause, the EU member state court is required to stay its proceedings to allow the chosen court to rule on jurisdiction and therefore there could be increased delay in such circumstances.

The UK has acceded in its own right to the Hague Convention on Choice of Court (Hague Convention) with effect from the end of the implementation period. The Hague Convention is an international agreement pursuant to which the courts of contracting states agree to uphold exclusive jurisdiction agreements provided that the nominated court is in one of the contracting states and the agreement complies with certain prescribed standards. It is limited in that it applies only to certain types of exclusive jurisdiction clauses (it is uncertain whether it would apply to asymmetric jurisdiction clauses). In terms of coverage, the contracting states of the Hague Convention comprise the Member States of the EU, Mexico, Singapore and Montenegro. It has been signed (but not ratified) by the USA and China. It does not currently apply to EFTA countries such as Norway and Switzerland.

As no permanent alternative agreement has yet been agreed, there is an increased risk of parallel proceedings in English and EU member state courts with the additional risk of inconsistent judgments.

Will anti-suit injunctions become more prevalent?

Previously, courts of an EU member state could not grant injunctions to restrain a party from continuing proceedings in another EU member state.

Following the end of the Implementation Period, it is possible that English courts could grant an anti-suit injunction in respect of proceedings before an EU member state court. The corollary is that EU member state courts would equally be free to grant anti-suit injunctions to restrain a party from pursuing a claim before the English courts, although many jurisdictions do not grant anti-suit injunctions.

How will enforcement of English judgments be affected by Brexit?

Enforcement of judgments, like jurisdiction, was governed by the Brussels Regulation. It is a key aim of the Brussels Regulation that judgments made by member state courts should be easily recognisable and enforceable in other member states.

The UK has acceded in its own right to the Hague Convention on Choice of Court (Hague Convention). The  EU member states (along with Mexico, Montenegro and Singapore) already belong to the Convention and it will provide a framework for enforcement of judgments throughout the EU where parties have chosen the English courts exclusively to resolve their dispute. 

Where the Hague Convention does not apply and pending any decision on the UK’s accession to the Lugano Convention, apart from certain circumstances where the Brussels Regulation will apply, enforcement of an English judgment will be determined by the local law of the relevant EU Member State.

What about enforcement of judgments of EU member state courts in England?

The same points as above would apply to enforcement of judgments from the EU in the English courts and the position will depend on whether the Hague Convention or, if the UK accedes to it, the Lugano Convention applies.

As a matter of English common law, enforcement of foreign judgments in England requires the judgment creditor to commence a fresh cause of action against the judgment debtor in the English courts with the foreign judgment being the cause of action. This is generally slower than enforcement of judgments from EU member state courts.