Jurisdiction in civil claims post-Brexit

The European regime generally applied in matters where the defendant was domiciled in one of the Member States of the European Union. The United Kingdom withdrew from the EU at 23:00 on 31 December 2020 which means Brussels I Recast (Regulation (EU) No 1215/2012) and Lugano Convention 2007 no longer apply.

What does this all mean in practical terms?

For proceedings issued in an English court and served prior to 31 December 2020 (and the case not concluded before this date), “the relevant instruments … continue to have effect in relation to questions of jurisdiction, or recognition or enforcement … as if those instruments had not been revoked.” (regulation 92 Civil Jurisdiction and Judgment (Amendment) (EU Exit) Regulations 2019 (SI 2019/479)). Therefore, old rules apply.

Article 67(1) of the Withdrawal Agreement provides that the jurisdiction provisions of Brussels I Recast apply to “legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to such legal proceedings…” It is important to note, that in England and Wales, proceedings are instituted when the Claim form is lodged with the court (which may be earlier than the issue date). In some jurisdictions date of issue is deemed to be date of service.

If the English court was not seised of proceedings (Claim form lodged) as at 23:00 on 31 December 2020 then jurisdiction decisions will be based on common law rules.

For proceedings instituted in EU Member States after 31 December 2020, the courts in the EU Member States will determine their international jurisdiction pursuant to any relevant EU law instruments, international conventions, or national laws.

Can a claimant still bring a claim in England?

To bring a claim in England against a foreign national or organisation, the claimant must bring him or herself within one of the tort gateways in the Civil Procedure Rules (CPR) Part 6, Practice Direction (PD) 6B.

Most significant for personal injury are common law rules for jurisdiction in tort, governed by PD6B, paragraph 3.1(9)

“(9) A claim is made in tort where –

(a) damage was sustained, or will be sustained, within the jurisdiction; or

(b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction.”

A question to be considered in a claim in tort relevant to jurisdiction is, what sort of damage sustained within the jurisdiction suffices to found jurisdiction. In FS Cairo (Nile Plaza) LLC v Brownlie [2020] the Court of Appeal held that consequential loss sustained in England was sufficient to found jurisdiction in England. This case was heard by the Supreme Court on 13 and 14 January 2021 and judgment is awaited.

As well as falling within one of the constitutional gateways, the claim also has to have a reasonable prospect of success (CPR 6.37(1)(b)).

A significant difference under common law rules is that there is a discretion to decline jurisdiction in favour of courts of another country if the other country is the more appropriate forum i.e. a case has a closer connection to that forum for instance, if the accident happened there (Spiliada [1987] and CPR 6.37(3)). In the recent decision of Municipio De Mariana & Ors v BHP Group Plc & Anor, Turner J applied the two steps approach of Spiliada Maritime Corp as to forum non conveniens to determine whether (i) England was the proper forum for the claim and (ii) justice could be achieved in the proceedings already ongoing abroad. This is unlike under Brussels and Lugano rules where once jurisdiction is established it cannot (ordinarily) be declined by the court.

Lugano Convention 2007

The UK has applied to join the Lugano Convention 2007. It is supported by the EFTA states (Iceland, Norway and Switzerland) but not currently by the EU. If the UK is invited and subject to further objections, the UK would become a party three months later. So, depending on if, and when invited, the earliest the UK can be a party is likely to be late spring. The benefit for personal injury litigators of joining is Lugano 2007 follows Brussels I (Regulation (EC) No 44/2001) very closely including the Odenbreit rules. We will update further as and when the situation becomes clearer.

Read other items in Personal Injury Brief - February 2021

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