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Lawyers back government call for civil justice cooperation post-Brexit

Government also seeks end to 'direct jurisdiction' of European Court of Justice

26 August 2017

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Civil justice cooperation will be needed between the United Kingdom and the European Union to resolve cross-border legal disputes after Brexit, the government has conceded.

In a new position paper, ‘Providing a cross-border civil judicial cooperation framework’, published on 22 August, the government says it will seek an agreement allowing for “close and comprehensive cross-border civil judicial cooperation on a reciprocal basis”.

The paper proposes that the UK remain a party to the Hague and Lugano conventions, providing for an almost parallel system of recognition and enforcement of judgments in civil and commercial matters.

The justice secretary, David Lidington, said the UK and EU needed “an even closer set of cooperative arrangements”, without bureaucracy, to deal with cross-border disputes, telling BBC Radio 4’s Today programme: “If you’re a German wife divorcing a British husband, if you are a British parent whose kids have been taken to Greece, if you are a Swede who’s bought from a British company online and think you’ve been diddled in the deal, you want redress.”

Although the plans are short on detail, lawyers have been encouraged by the government’s recognition of the need for judicial cooperation and have described the proposals as a step in the right direction.

“Civil justice cooperation rules set the basic parameters that let us live, work, and play across Europe,” said Law Society vice president Christina Blacklaws. “They allow us clear ways to resolve problems when they occur across borders, and give business defined rules to follow with the confidence UK business needs to trade and invest.

“Making sure these clear and effective rules continue or are replaced will be a vital part of making Brexit work,” she said, adding that the government had given that strong commitment to retaining these important legal mechanisms.

“The government clearly has a big task ahead of it to turn these ideas into details that can effectively replace the range of agreements and institutions outlined in the paper,” added Blacklaws. “Setting out this vision is a welcome first step on that journey. It is encouraging that the government has chosen to listen to the concerns raised by the solicitor profession, and give civil justice cooperation the high priority it clearly needs.

“It will need to ensure that new arrangements not only deliver on the aspirations they have outlined, but meet the needs of both the UK and EU citizens and businesses who will use them, all while working through the give-and-take of the Brexit negotiations.”

The Bar Council also welcomed the news, with its chair, Andrew Langdon QC, saying the position paper includes “sensible and sound proposals”. “The position paper rightly identifies the mutual benefits that can be expected to flow from continuing cooperation between the UK and the EU, for citizens as well as businesses who are naturally looking for certainty to plan ahead.

“We are encouraged by the fact the government sees value in preserving much of what is already in place in existing arrangements between the UK and the EU, as well as the UK’s relationships internationally and third parties.”

However, the Guildhall silk warned that the devil will be in the detail of the proposals. “We will, therefore, continue to provide our expertise in our ongoing discussions with the government on this topic.”

Certainty for families

Family law group Resolution also welcomed the announcement, with the chair of its international committee, Daniel Eames, explaining that close cooperation with the EU will be vital in family law matters post Brexit. “This was a key recommendation arising from the Justice Select Committee’s enquiry, to which Resolution gave evidence late last year.

“As we said to the committee at the time, families benefit from rules which bring legal certainty, and limit the length and costs of proceedings in family law cases, for the benefit of children and their parents. Cross-border family law for intra EU-UK cases – whether divorce, children, or financial – requires reciprocity.”

The solicitor at Clarke Wilmott explained that without reciprocal rules, there can be no legal certainty in treatment “with all the ensuing complications, delays, and potential costs for families and children or local authorities undertaking their child protection function”.

“These issues may not make headline news, but for families affected by a cross-border dispute, it can be deeply distressing,” he added. “For their sake, the more clarity on what the situation will be after March 2019, the better.”

However, Claire Wood, a family law partner at Kingsley Napley, warned that an agreement as to how such disputes will be resolved post Brexit would not provide all the answers to issues affecting families.

“Before March 2019, we need to address the practical questions of how UK orders will be recognised and enforced in other European countries and which court should deal with a case in the first place where there is a choice between the UK and another member state. Otherwise litigation could go on for many years and families will be living in a state of uncertainty.”

Describing Brexit as “a ticking time bomb”, the solicitor called on UK and EU negotiators to be mindful that a withdrawal from Europe will affect not just commercial agreements but real people’s lives too. “We need clear and practical guidance from the government to ensure the current and effective enforcement and recognition framework doesn’t disappear into a black hole with nothing to replace it. We don’t want to end up in a situation where cross-border divorces and questions over the relocation of children take years to resolve.”

European court influence

Mathew Rea, co-head of the international arbitration team at Bryan Cave, said that for the UK to remain a party to the current regulations would also mean accepting the primacy of European Court of Justice decisions, which, he suggested, could be “unacceptable politically”.

“On the other hand, not remaining party to these regulations could put British businesses trading in Europe at a serious disadvantage, and jeopardise the status and success of the UK’s legal sector as the first choice for handling cross-border disputes,” he added.

The future role and influence of the European Court of Justice on UK law post Brexit has also been addressed by the government. However, more questions now appear to have been raised than answered.

In a separate position paper, ‘Enforcement and dispute resolution’, published on 23 August, the government calls for an end to the “direct jurisdiction” of EU courts and advocates an independent dispute resolution mechanism, such as a joint committee or arbitration panel, to maintain the “deep and special partnership” between the UK and EU after March 2019.

“One common feature of most international agreements, including all agreements between the EU and a third country, is that the courts of one party are not given direct jurisdiction over the other in order to resolve disputes between them,” the paper states. “Such an arrangement would be incompatible with the principle of having a fair and neutral means of resolving disputes, as well as with the principle of mutual respect for the sovereignty and legal autonomy of the parties to the agreement.”

Speaking on the BBC’s Today programme, justice minister Dominic Raab suggested that arbitration – with one EU-appointed arbitrator, one UK appointee, and a third-party arbitrator agreed on by both sides – would be the “most likely” model adopted post Brexit. However, the Vote Leave campaigner also admitted that the UK would keep “half an eye” on rulings by the EU’s highest court.

“When we leave the EU, we’re taking back control over our laws,” he said. “There will be divergence between the case law of the EU and the UK. It is precisely because there will be that divergence as we take back control that it makes sense for the UK to keep half an eye on the case law of the EU, and for the EU to keep half an eye on the case law for the UK.”

Amid suggestions from Labour that the government was backtracking on earlier red lines, the justice minister told Sky News that there was “no climbdown, no confusion”.

Theresa May has also rejected any suggestion of a U-turn, saying: “When we leave the European Union we will be leaving the jurisdiction of the European Court of Justice. What we will be able to do is to make our own laws. Parliament will make our laws, it is British judges who will interpret those laws and it will be the British Supreme Court that will be the ultimate arbiter of those laws. We will take back control of our laws.”

In response to the prime minister’s comments, Emma Stevens, a solicitor at Coffin Mew, said: “A key consideration for UK courts will be the extent to which judges are still required to consider CJEU decisions in relation to domestic law following Brexit. UK judges currently consider relevant decisions of other international courts, such as the United States’, where it is appropriate to do so. This means they will likely continue to have some regard for CJEU rulings, even though they will not be bound by them.

“UK courts are well-established and have a strong international reputation. At present, it is not uncommon for parties, both in the UK and overseas, to stipulate contractually that UK courts will have jurisdiction over any disputes which arise and there is no reason for this to change following Brexit. If anything, the fact that the Supreme Court will now be the ‘ultimate arbiter’, without need for references or appeals to the CJEU, may further encourage this.”

John van der Luit-Drummond, deputy editor

john.vanderluit@solicitorsjournal.co.uk | @JvdLD

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Friday, August 25, 2017 - 15:00

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