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Cross-Border Civil Litigation www.newlawjournal.co.uk | 26 February 2021 BREXIT LEGAL UPDATE 7 © iStockphoto/ Tanaonte results from an act committed, or likely to Cross-border civil be committed, within the jurisdiction (CPD PD 3.1(9)(b)). By contrast with the Brussels I (Recast), CPR PD 3.1(9)(a) is currently litigation: the new normal understood to include indirect damage (FS Cairo (Nile Plaza) LLC v Brownlie [2020] Alexander Layton QC & Andrew Dinsmore EWCA Civ 996), but an appeal against that examine the post-Brexit landscape for jurisdiction decision has been argued in the Supreme Court and judgment is awaited. and enforcement of foreign judgments IN BRIEF As a result, permission to serve out is once Related claims f An overview of the rules relating to civil and again usually required to bring an action As to related claims, CPR PD 3.1(4A) provides commercial matters in England and Wales against defendants in EU member states. The that where a claimant has established following the UK’s departure from the EU. claimant must now establish in relation to all jurisdiction under CPR PD 3.1(6) (ie in defendants outside the UK (except in relation relation to the first four contractual bases f Jurisdiction of the English courts is now generally governed by the rules which have to consumer and employment contracts and noted above), CPD PD 3.1(9) (tort) or hitherto applied to non-European cases. those within the Hague Convention) that: various other grounds, it can bring any other f there is a serious issue to be tried; claim that ‘arises out of the same or closely f Foreign judgments can only be enforced by f at least one of the jurisdictional gateways connected facts.’ an action at common law or under CPR 74. in CPR PD 6B, para 3.1 is fulfilled; and lthough the UK officially left the EU f England is the proper place in which to Multiple defendants on 31 January 2020, Article 67 of hear the dispute. As to multiple defendants, the claimant the EU-UK Withdrawal Agreement must establish that a claim is made against A2019 meant that Regulation (EU) The ‘serious issue to be tried’ threshold a defendant on whom the claim form has 1215/2012, Brussels I (recast) continued to is a relatively low threshold, and is been or will be served (often referred to as apply to civil and commercial proceedings designed to ensure that the court does not the ‘anchor defendant’) and there is between commenced prior to the end of the transition exercise jurisdiction over disputes that will the claimant and the defendant a real issue period (namely, 31 December 2020). immediately be defeated in a summary which it is reasonable for the court to try (CPD The transition period has now ended judgment application (see AstraZeneca UK Ltd PD 3.1(3)(a)); and the claimant wishes to without any deal between the UK and EU on v Albemarle International Corp and another serve the claim form on another person who civil justice, with the consequence that the [2010] EWHC 1028 (Comm), para [30]). is a necessary or proper party to that claim EU’s rules on jurisdiction and the recognition The most important gateways for (CPR PD 3.1(3)(b)). This is wider than the and enforcement of foreign judgments no commercial litigation are those in relation test under Article 8(2) of Brussels I (Recast), longer apply. to contract, tort, related claims and multiple which required that the anchor defendant be This article seeks to provide an overview defendants. domiciled in England. of the rules relating to civil and commercial Finally, the claimant has a gateway where it matters as they now stand in England and Contract has an additional claim under CPR 20 and the Wales, and of the changes which occurred at As to contract, the claimant will have a person to be served is a necessary or proper the end of 2020 (which, at the time of writing, jurisdictional gateway where: party to the claim or additional claim (CPR have not yet found their way into the White f the contract was made within the PD 3.1(4)). Book). It does not cover family law, which has jurisdiction (CPR PD 3.1(6)(a)); undergone its own similar changes, nor cases f it was made through an agent trading or Appropriate forum involving Scotland or Northern Ireland. residing within the jurisdiction (CPR PD As to establishing that England is the proper 3.1(6)(b)); place in which to bring the action, the Establishing jurisdiction in 2021 f it is governed by English law (CPR PD claimant must demonstrate that it is the For cross-border cases commenced on or after 3.1(6)(c)); ‘clearly’ the more appropriate forum (VTB 1 January 2021, jurisdiction of the English f it contains a term to the effect that the Capital plc v Nutritek International Corp [2013] courts is now generally governed by the rules court shall have jurisdiction to determine UKSC 5, [2013] All ER (D) 47 (Feb), paras which have hitherto applied to non-European any claim in respect of the contract (CPD [12] and [18] per Lord Mance, para [80] per cases, although specialist regimes (outlined PD 3.1(6)(d)); Lord Neuberger, para [156] per Lord Wilson, below) apply to cases between businesses f the claim is made in respect of a breach para [161] per Lord Clarke, and para [190] per involving a written choice of court clause that of contract committed within the Lord Clarke). come within the 2005 Hague Convention jurisdiction (CPR PD 3.1(7)); or, This requires an analysis of all the factual, on Choice of Court Agreements (‘the Hague f a claim is made for a declaration that no legal, procedural and expert factors that point Convention’) and to most cross-border contract exists where, if the contract was to one jurisdiction over another and is the consumer and employment contract cases. found to exist, it would comply with the converse of the analysis (known as forum non Except for those specialist areas, jurisdiction conditions set out in CPR PD 3.1 (6) (CPR conveniens), which takes place under CPR 11 now depends on service of a claim form on the PD 3.1(8)). where a defendant applies to stay proceedings defendant, either within England and Wales brought in England on the basis of service (even if the defendant is here only fleetingly) Tort within the jurisdiction. In both situations, the or outside the jurisdiction with the court’s As to tort, the claimant will have a (non-exhaustive) factors that often feature are: permission. The relevant legislation governing jurisdictional gateway where (i) damage f whether (subject to the Hague this area, including section IV of CPR 6 was sustained, or will be sustained, within Convention) the parties have agreed and CPR PD 6B have been amended to take the jurisdiction (CPR PD 3.1(9)(a)), or (ii) a jurisdiction agreement in favour of account of the end of EU regimes. damage which has been or will be sustained one forum; 8 LEGAL UPDATE BREXIT 26 February 2021 | www.newlawjournal.co.uk f the applicable law; contracting state. Those states are (so far) parties are resident in the same country, f the location of factual and expert the UK, EU member states (but not other in which case the law of that country witnesses; European Economic Area states), Singapore, applies (Article 4(2)), or (ii) it is clear f the location of the underlying Montenegro and Mexico. It covers a narrow from all the circumstances that the tort is factual evidence; range of cases as compared with Brussels I manifestly more closely connected with f the location of particular expertise in a (Recast) and does not apply to non-exclusive a country other than those above (Article discipline; agreements. Where it applies, the court must 4(3)), while specialist rules in Articles 5 f the location of parties that may be either accept or decline jurisdiction according to 12 govern particular types of non- required to give disclosure; and to its terms. contractual liability. f whether both parties will be able to obtain Sections 15A to 15E have been inserted justice in the alternative forum (although into the Civil Jurisdiction and Judgments Act Future developments the threshold to establish otherwise is 1982 to reproduce in English law the specialist In light of the fact that Brussels I (Recast) is very high). rules which hitherto applied under Brussels no longer applicable, the UK has applied to I (Recast) to consumer and employment become a signatory of the Lugano Convention An important development is that the contract cases. 2007, which would restore a system of rules English court can now stay proceedings In these three types of case, a claim form of jurisdiction and judgments equivalent to on the basis of the forum non conveniens may be served out of the jurisdiction without an older (2001) version of Brussels I (Recast) analysis, moving away from the position permission (CPR 6.33(2) and (2B)), although (and would apply not only in relation to EU under Brussels I (Recast) as established by a defendant may still challenge the court’s member states but also Switzerland, Norway the European Court in Owusu v Jackson and jurisdiction under CPR 11. and Iceland). The EU are currently assessing others C-281/02, [2005] QB 801. Anti-suit whether to agree to the UK’s request and must injunctions will also become available again Foreign judgments ‘endeavour’ to give consent by 1 April 2021 in respect of proceedings in other European The streamlined procedure for the recognition (Article 72(3)).
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