Civil and Commercial Matters
Civil law after Brexit
European Union (EU) law will no longer apply to legal proceedings involving the United Kingdom (UK) once the current transition period comes to an end on 31 December 2020.
This will have an impact on proceedings in this jurisdiction where there is a UK component - for example, a UK resident who is suing an Irish resident, or a UK resident seeking enforcement of a decision in this jurisdiction. It will also impact on Irish residents who are pursuing proceedings in the UK.
The European Commission has published a notice on this matter: Withdrawal of the United Kingdom and EU Rules in the Field of Civil Justice and Private International Law.
Co-operation with the UK in the civil justice area can be divided into four broad areas covering:
- International jurisdiction and recognition and enforcement of judgments based upon such jurisdiction rules;
- Applicable law rules;
- Judicial cooperation procedures such as arrangements for the service of documents; and
- Specific EU procedures such as obtaining an order for payment for a pecuniary claim which is not contested.
While no fall-back solution can offer the precise degree of cover which is currently available under existing EU instruments, solutions have been identified in certain areas related to commercial litigation.
Jurisdiction and the recognition and enforcement of judgments
The primary EU instrument in the area of the recognition and enforcement of civil and commercial judgments is the EU Regulation on jurisdiction and the recognition and enforcement of judgments (Brussels I recast).
The UK has applied to join the Lugano Convention, which parallels the Brussels I Regulation between the EU and the European Free Trade Association (EFTA) countries of Iceland, Norway and Switzerland. Until such time as the UK accedes to the Convention we will have to rely upon common law rules for the enforcement of judgments by UK parties seeking enforcement in Ireland, and vice versa.
Choice of Court
Where parties have entered into a choice of court agreement (an agreement as to which a country’s court will have jurisdiction in the event of a dispute) the 2005 Hague Convention on Choice of Court Agreements will apply as between ourselves and the UK.
Service of documents
A 1965 Hague Convention on the Service of Documents will provide an alternative channel for co-operation in this area.
Taking of evidence
The fall-back in this instance is the 1896 Foreign Tribunals Evidence Act and Order 39 of the Rules of the Superior Courts. This is the regime which applies where the court of a country outside the EU requests the Irish courts to assist in obtaining evidence in Ireland for use in foreign proceedings.
The relevant EU instruments are -
- Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I);
- Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II)
The UK has indicated its intention to continue to apply the Rome I and Rome II rules.
An EU Insolvency Regulation dating from 2015 (preceded by one dating from 2000) sets out agreed rules for court jurisdiction, recognition and enforcement where an insolvency case has cross-border aspects. In relation to bankruptcy, it is envisaged that Irish and UK courts will continue respecting and enforcing each other’s bankruptcy orders under established common-law comity principles whereby courts mutually recognise each other’s decisions. A similar approach is thought likely to apply regarding personal insolvency cases dealing with unsecured debt, as again, Irish and UK legislation is highly comparable in this area.
Measures for which there is no international equivalent
There are specific procedures which will simply cease to apply between Ireland and the UK because they exist solely in the sphere of EU law. What this means is that applications under those EU instruments will no longer be possible in the future where the UK is concerned. The EU Small Claims Regulation is an example of an instrument which will no longer be available for this reason.