The Impact of Brexit on Cross-Border Litigation Eoin Martin seeks to unravel the new procedures that will apply from the start of 2021
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n 31st December 2020, the transition period, during which EU law continued to apply to the UK under the Withdrawal Agreement, will end. EU regulations which currently govern jurisdiction, recognition and enforcement of judgments, service, evidence, insolvency and choice of law, will all have to be replaced by alternative rules and procedures from the start of 2021. This article, which is based on a seminar for the commercial committee of the DSBA on 19th November 2020, does not deal with family law and other areas impacted by Brexit. Jurisdiction and the recognition and enforcement of judgments is currently governed by Regulation 1215 / 2012 (“Brussels Recast”). When the UK leaves this regime, from an Irish perspective, it will be treated like other non-EU countries such as the USA.The European Enforcement Order regime under Regulation (EC) 805 / 2004 will also no longer be available for enforcement of uncontested UK judgments in Ireland, or Irish judgments in the UK. To issue Irish proceedings against a UK-based defendant, it will be necessary to apply under Order 11 RSC (Rules of the Superior Court) for leave to issue and serve proceedings out of the jurisdiction. The court will have to be satisfied that the matter is one over which the Irish courts should exercise jurisdiction on the basis that the cause of action fits within one of the categories exhaustively listed in Order 11, Rule 1. When seeking to enforce a UK judgment in Ireland,
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a plaintiff will have to commence fresh proceedings (e.g. by summary summons where one has judgment for a liquidated sum) so as to turn it into an Irish judgment. The adverse effects of Brexit could be mitigated if the UK is admitted in its own right to the Lugano Convention. Brussels Recast evolved from the Brussels Convention of 1968. The Lugano Convention 1988 (replaced with an updated version in 2007), adopted the principles set out in the Brussels Convention and extended them to three of the states of the European Free Trade Association (EFTA) – Iceland, Norway and Switzerland. In April 2020, the UK applied to participate in the Lugano Convention in its own right. This would ensure that most of the same principles covering jurisdiction and the recognition and enforcement of judgments under Brussels Recast would continue to apply in future. Iceland, Norway, and Switzerland have agreed to welcome the UK into the Lugano Convention, but at the time of writing, the EU has not agreed to do so. A three-month notice period for admission of new members means the UK will not be joining Lugano on 1 January 2021, although it may be admitted later. Although the Lugano Convention is similar to Brussels Recast, there are certain key differences. The 2007 Convention was modelled on EC Regulation 44 / 2001, so it is now somewhat out of date. For example, Article 38 of the Lugano Convention still requires a party seeking to enforce a judgment in a second state, to obtain a declaration of enforceability in that second state, whereas this requirement has been abolished in
