Camille Slow considers those provisions of the Draft Withdrawal Agreement currently due to be considered by Parliament which would have an impact on civil litigation;
- The Draft Withdrawal Agreement currently under discussion remains heavily contested, but has potentially significant effects on all civil litigation which should be considered;
- The Draft Withdrawal Agreement incorporates provisions relating to jurisdiction, the recognition and enforcement of judgments, judicial cooperation and public procurement
- in general, the provisions of the Draft Withdrawal Agreement seek to maintain a ‘business as usual’ approach.
The 14 November 2018 Withdrawal Agreement
Very heavy emphasis must be placed on the word ‘draft’ in the Draft Withdrawal Agreement. There are real doubts as to whether Parliament will affirm the Draft or in what form. In any event however it is useful to analyse what the implications of that agreement would be on civil litigation were it to be ratified.
The History and Background
For some time, it has seemed likely that there would be an agreement on transitional measures in respect of Judicial Cooperation in Civil and Commercial Matters. Both the UK and the EU27 have published position papers identifying aspirations for the transition period which were broadly aligned, albeit there were differences in the precise cut-off points for the transitional arrangements. Christopher Reid has discussed the fall-back position under the Rome and Brussels Conventions with regard to jurisdiction and conflict of laws absent any transitional agreement in an earlier Brexit Bulletin.
Broadly speaking, as with many aspects of the withdrawal agreement, the proposal is for the status quo to be maintained during the transition period, but, as ever, the devil is in the detail. For example, maintaining cooperation in the enforcement of civil judgments could have ranged from keeping the rules the same in respect of any judgment which related to events pre-dating the end of the transition period, to, at the other end of the spectrum, judgments delivered prior to the withdrawal date. In the event, Title VI Article 67 of the Draft Withdrawal Agreement which deals with ‘Jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities’ draws the line somewhere in the middle by providing that Union Law will continue to apply in respect of legal proceedings ‘instituted before the end of the transition period’ (and related proceedings or actions).
The provisions regarding jurisdiction provided in Regulation (EU) No 1215/2012 and other identified regulations relating to jurisdiction (broadly speaking all relevant regulations) will continue to apply to proceedings instituted before the end of the transition period.
Recognition and Enforcement
The provisions of regulations regarding the recognition and enforcement of judgments will also apply to those same proceedings and to ‘authentic instruments formally drawn up or registered and court settlements approved or concluded before the end of the transition period’. There is the possibility for some confusion in the terminology in relation to settlements. If there is a distinction between a court settlement being ‘concluded’ and ‘drawn up’ then there could be settlements concluded prior to the end of the transition period and which would then formally be drawn up thereafter, potentially falling in both camps. In reality however, under UK law, a court settlement, as distinct from non-court sanctioned agreement are in all likelihood to be considered ‘concluded’ when they are approved by the court, even if they are sealed by the court at a later date.
Similar rules will apply with regard to insolvency proceedings providing the main proceedings were opened before the end of the transition period. Annex A of Regulation (EU) 2015/848 provides a list of proceedings to which this regulation automatically applies, it includes proceedings for winding up as well as administrations and voluntary arrangements confirmed by the court. Rules regarding co-operation with judicial enforcements and concerning parental responsibility will continue to apply in respect of requests / applications received before the end of the transition period.
Ongoing Judicial Cooperation Procedures
As regards the service of documents, Article 68 provides that Regulation (EC) 1393/2007 relating to judicial and extra judicial documents shall continue to apply in respect of all documents received for the purposes of service before the end of the transition period by the named authorised bodies. Similarly, requests for the taking and receiving of evidence under Regulation (EC) 1206/2001 received before the end of the period shall continue to be treated as they are prior to the withdrawal date with an entitlement to request acknowledgement of receipt within 7 days after the end of the transition period when there is doubt as to whether the document will have been received on time.
As far as service within the EU and indeed further afield is concerned, it is worth noting that the CPR rule 6.11 provides that parties to a contract can agree a term specifying the method or place of service and good service can be effected by the agreed means. It is accordingly good practice in any event when dealing with entities or individuals outside the jurisdiction to attempt to secure an agreement specifying an address within the jurisdiction where service can be effected to avoid the need for and delays caused by service outside the jurisdiction. Such an agreement would future-proof any contract against changes to the EU rules for the service of documents relating to UK court proceedings.
In a previous Brexit Bulletin I discussed Public Procurement Post Brexit. The draft withdrawal agreement Title VII, Articles 75 and 76 provide transitional arrangements for public procurement. These provide the existing rules continue to apply in respect of ‘procedures launched by contracting authorities or entities’ prior to the end of the transition period. The arrangements will apply equally to dynamic purchasing systems and where the call for competition takes the form of a notice of the existence of a qualification system or a prior information notice. The withdrawal agreement provides detail on when a procedure is taken to be ‘launched’ and ‘finalised’ for these purposes.
The award of contracts pursuant to framework agreements concluded before the end of the transition period which have not expired or been terminated on the last day of the transition period, or which are first concluded after the end of the transition period having been launched before its end (as per the paragraph above), will continue to follow existing rules. There is a general mutual commitment to the principles of non-discrimination during the transition period.
Although it deals with future co-operation on criminal judicial matters the Draft Political Declaration – framework for the future relationship (“the Declaration”) does not address any of the matters set out above concerning co-operation regarding civil dispute resolution such as choice of judicial cooperation, jurisdiction etc. However, this appears to be a reflection of the high-level nature of the agreement rather than a conscious decision to make no such provision. Consideration of the level of co-operation suggested by the Declaration strongly indicates that it is likely that the rules relating to civil matters discussed above would be maintained in a manner at least broadly equivalent to the existing arrangements. There would appear to be nothing politically controversial about this and nothing about these arrangements which would conflict with the ideologies and stated aims of the two sides.
Perhaps of more interest is that, despite its relative brevity, the Declaration does devote two paragraphs (paras 48 and 49) to public procurement and records (a) the UK’s intention to accede in its own right to the GPA (as discussed in my earlier procurement bulletin) (b) an intention to provide for mutual opportunities in the parties’ respective public procurement markets beyond GPA rules whilst recognising the need to protect essential security interests (it will be recalled that GPA rules expressly exclude defence and national security contracts).
For the purposes of the transition period it will, in the areas discussed above, be largely business as usual although thought will need to be given to the timing of steps taken in proceedings and in relation to procurement as the end of the transition period draws near. If there is ultimately a deal within the spirit of the Declaration, whilst we can expect that things will not be exactly business as usual going forwards, it looks unlikely that any change in these areas will be as dramatic as previously feared or indeed hoped (depending on one’s own perspective of Brexit). However, that is, it has to be said, a big ‘if’!
Camille has a broad commercial disputes practice with particular focus on the construction and engineering, professional negligence, energy, fraud, insolvency, IT and telecommunications sectors. She represents a wide range of clients including governments, contractors, private employers and their insurers and professional advisors all over the world, including in Africa, the Middle East and Asia.
She has impressive experience of all forms of dispute resolution including expertise in domestic and international arbitration, mediation, High Court litigation and adjudication. In relation to adjudication, her experience includes advising on the enforcement of awards as well as conducting adjudications including attending hearings before adjudicators. She carries out a considerable amount of advocacy, regularly appearing in the High Court and arbitration, conducting trials and other hearings.