Following the end of the Brexit transition period at 11pm on 31 December 2020 most EU Regulations are no longer applicable in the UK.
This includes the Brussels 1 Regulation (Recast)(1215/2012) which covers the recognition and enforceability of judgments between EU Member States. As the trade agreement established between the UK and the EU does not contain provisions on the enforcement of judgments the UK will look to other conventions to which it is a party and established domestic law to assess whether EU judgments can still be enforced.
UK position post-Brexit
Now the Brexit transition period has ended the enforcement of new Irish and other EU member state judgments in the UK will be governed by (i) the Hague Convention and (ii) domestic UK law. The main take-away is that the party seeking to enforce a non-UK judgment will have to make a full court application to have it recognised and enforced whereas pre-Brexit EU judgments were recognised and enforced through a simple procedural mechanism.
The Hague Convention in the UK
The EU has been a party to the Hague Convention since 2015. The UK acceded in its own right on 1 January 2021. The EU and UK disagree as to whether the UK is a party to this convention since 2015 as part of the general EU accession or from the UK's accession from 1 January 2021. As such, it is unclear whether the convention will apply to contracts made between 2015 and 1 January 2021 that elect the UK as the jurisdiction for the hearing of any claims. This is a matter which will likely be determined in the coming months as the enforceability of judgments develops post Brexit.
From 1 January 2021 onward however, this convention applies in the UK when a judgment is made in relation to new commercial contracts that contain a specific jurisdiction clause. A jurisdiction clause allows the parties to decide which country's courts will be relied upon to resolve any disputes which may arise under the contract. The convention requires that any judgment given regarding such a contract will be recognised and enforced in the other states which are party to the convention. The Hague Convention applies to commercial contracts only and does not cover consumer contracts, family law or insolvency, for example.
UK Domestic Law
In situations where the Hague Convention does not apply, UK domestic law rules will be applied in deciding the enforceability of Irish judgments (and those of other EU member states) by UK courts. The common law rules in England & Wales currently allow for such a judgment to be recognised and enforced provided it is:
- Final and conclusive in the court which granted the judgment.
- For a sum of money, but not for taxes, a fine or other penalty. (This means that an injunction granted by an Irish court cannot be enforced under UK common law).
- On the merits of the facts. A judgment on the merits is one which establishes certain facts as proved or not disputed, states the relevant principles of law applicable to such facts; and applies those principles to the factual situation to provide a conclusion.
The rules for the enforcement of judgments in Northern Ireland and Scotland differ to these.
Future changes to enforceability in the UK
Finally, the Lugano Convention regulates the enforcement of judgments between EU member states and the European Free Trade Association countries (which are at present, Lichtenstein, Norway, Switzerland and Iceland) and largely mirrors the regulations set out in the Recast Brussels Regulation. The UK has applied to accede to the Lugano convention and approval of this application is pending. If the UK's application is successful, this would simplify the enforcement of judgments and result in a similar system as that which was in place pre-Brexit.
Disclaimer – the enforcement of judgments in the UK is a matter of UK law. Beauchamps does not advise on UK law and this note is a guide only, to reflect the position as understood on 24 February 2021.
