23 Feb 2022

Litigation trends in England, 2022: Brexit

by Imogen Winfield, Associate at Brown Rudnick

Brexit has proved to be a disaster for the UK on many levels, so it’s not surprising that it has thrown up uncertainty and obstacles where cross border litigation is concerned. This is another of the litigation themes we can expect to continue throughout 2022.

While England remains an attractive centre for multijurisdictional disputes, litigation will generally be more complicated for claimants without the benefit of the full EU regime:

Unless the defendant can be served in England or the dispute arises out of a contract with an English jurisdiction clause, permission will be required to serve a defendant in an EU state, which requires a claimant to establish that England is the proper place to bring the claim over any other relevant jurisdictions. The process of serving out will be slower and less efficient under the Hague Service Convention than it was under the EU Service Regulation.

Jurisdictional challenges are more likely to arise. Except where parties have agreed exclusive jurisdiction clauses, the English courts will apply common law rules to determine jurisdiction. This gives them discretion to stay proceedings or decline permission where they are not satisfied that England is the most appropriate place for the proceedings or that justice requires the proceedings to be conducted in England.

Claimants looking to enforce an English judgment (save for those resulting from exclusive jurisdiction clauses) in an EU/EFTA state will generally have to do so under that state’s domestic law, navigating any applicable procedural requirements along the way.

Where disputes are contractual, these issues can all be mitigated against with appropriate provisions in the parties’ agreement. There are some silver linings in Brexit: jurisdictional gateways are broader, and English courts are no longer precluded from granting anti-suit injunctions over proceedings brought in an EU/EFTA state in breach of an English jurisdiction clause or simply vexatiously (at least while the UK remains outside the Lugano Convention).

Prospective claimants need to be alive to the nuances that may apply to disputes with an EU angle post-Brexit. We can expect to see the English courts’ approach evolve on certain issues as they arise more frequently, such as how strictly the appropriate forum test is applied and how readily anti-suit relief is granted. EU/EFTA state courts will need to determine whether the Hague Convention on Choice of Court Agreements covers exclusive jurisdiction clauses dating back to 1 October 2015 (when the UK acceded as an EU member state) or only from 1 January 2021 (when the UK joined in its own right), and whether bilateral treaties pre-dating the UK’s membership of the EU can be relied upon to secure recognition and enforcement of judgments with individual EU states.

Next, We’ll explore the various types of ESG issues we might expect to see litigated this year.

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