Civil proceedings post-Brexit

After the Brexit, the regulations on civil proceedings between EU countries and the UK changed. How did it affect the pursuing  of claims by companies having business relations with the UK?

On 31 January 2020, the United Kingdom left the European Union for good. This resulted in many discrepancies and inconsistencies between the regulations in force in the United Kingdom and the EU member states what required the signing of additional agreements regulating relations between the EU and the UK.

Civil proceedings before the Brexit

Before the Brexit – until 31 December 2020 –  a transitional period applied during which the UK was subject to the EU law with the same effect as other member states. At that time, the Brussels I-bis Regulation applied which enabled a suit to be brought before a court in Poland in a case concerning a contract with a UK contractor or a case for compensation for a tort committed in Poland by a person residing in the UK. In addition, that Regulation provided for mutual enforcement of judgments without any special procedure.

Brexit and the Hague Convention

From 1 January 2021, only British law will apply in the United Kingdom, and the courts competent to conduct disputes will be British courts, taking into account the provisions of international agreements to which the United Kingdom is a party.

In this regard, it is significant that the United Kingdom has become an independent party to the Hague Convention of 30 June 2005 on Choice of Court Agreements  (“The Hague Convention“), to which the European Union is one of the parties. The scope of the Hague Convention is much narrower than the existing regulations and it only applies to choice of jurisdiction clauses, with the exception of matters relating to:

• employment law,
• consumer contracts,
• family and succession law,
• transport of persons and goods,
• proceedings conducted on its basis in jurisdictions chosen by the parties (and judgments entered).

The Hague Convention requires the courts of the States Parties to recognize an exclusive jurisdiction of the courts in the jurisdiction chosen by the parties to a contract. This means that the parties to international contracts may validly choose the court which will hear a potential dispute. And the judgments of the courts of the contracting states should be recognized and enforced.

The Hague Convention also regulates certain procedural issues, including: lifting the obligation to legalize documents (apostille), the scope of documentation to be collected and presented by the parties, etc.). The provisions of the Hague Convention apply only to contracts concluded after entry into force with respect to the party, i.e. for the United Kingdom from 1 January 2021.

Learn more: Employee’s liability for damage to employer’s property

Practical implications Brexit for civil proceedings

In matters where a statement of claim (or a petition in non-contentious proceedings) is brought after 31 December 2020, judgments by the courts of the member states will not be automatically recognized in the UK and the court jurisdiction will not be determined under the Brussels I bis Regulation. These issues are regulated by the relevant international agreements or, in their absence, by the national law of the UK and EU member states.

In accordance with Polish law:

• judgments of the British courts will be recognized in Poland in a standard procedure for recognizing judgments of foreign courts or decisions of other authorities of foreign states provided for in Art. 1145 at seq. of the Code of Civil Procedure,
• 165 § 2 of the Code of Civil Procedure will not apply, what means that posting a pleading at a postal office of an operator providing universal postal services in another non-member state of the European Union is not tantamount to filing it with court (SN – I CKN 672/99: the date of receipt by the Polish post office is decisive);
• Article 1119 of the Code of Civil Procedure will apply – a claimant who has a place of residence (usual stay) / registered office in the United Kingdom may (at the defendant’s request) be required to submit a claimant’s deposit to secure the costs of the proceedings (exceptions: e.g. matters where parties have jointly submitted to the jurisdiction of Polish courts – parties to the proceedings may therefore secure themselves against paying a deposit by concluding an appropriate choice of jurisdiction agreement;
• the obligation provided for in Article 1135⁵ of the Code of Civil Procedure will apply – a party who has a place of residence (usual stay) / registered office in the United Kingdom, and who has not appointed an attorney to conduct the case in Poland, is obliged to indicate an attorney for service in Poland.

Lugano Convention

In this context, it may be relevant to note that the United Kingdom has applied to accede to the Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters as an independent party (and not a member of the EU / EEA), but to date, the admission procedure has not been finished yet. The Convention aims to achieve the same level of circulation of judgments between the EU countries and Switzerland, Norway and Iceland as between the EU countries.

The Lugano Convention applies to jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and does not apply to:

• tax, customs and administrative matters,
• the civil status and legal capacity of natural persons,
• rights in property arising from matrimonial relationships,
• wills and succession,
• bankruptcy and composition,
• social security or arbitration.

The convention complies with the current EU legal framework on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters between EU countries. This means that similar rules apply in the EU as well as in Switzerland, Norway and Iceland. The convention also facilitates the mutual recognition and enforcement of judicial decisions entered by the national courts of these countries. The UK accession to the convention will certainly facilitate the pursuit of claims in court.

Author:

Paweł Góra
Legal Adviser
TGC Corporate Lawyers

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