European Union: Draft Civil Procedure Rule Changes In The Event Of A No Deal Brexit

Last Updated: 22 February 2019
Article by Herbert Smith Freehills

The government has published a draft statutory instrument, the Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019, which makes amendments to the CPR that are consequential on the various other civil justice measures that are to be implemented in the event of a no deal Brexit. These include, most importantly, the disapplication of the recast Brussels Regulation and the Lugano Convention in relation to questions of jurisdiction and enforcement of judgments (as outlined here), as well as the disapplication of the EU Service Regulation and Taking of Evidence Regulation – in each case subject to transitional provisions.

The CPR amendments, which will only take effect if there is a no deal Brexit, include sweeping changes to CPR Part 6 in relation to service of documents and Part 74 in relation to enforcement of foreign judgments, as well as changes to other rules such as the provisions in Part 25 relating to security for costs. The most significant amendments are outlined below.

Permission to serve out of the jurisdiction:

  • CPR 6.31 and 6.33 will be amended to remove the ability to serve proceedings out of the jurisdiction without the court's permission where the court has jurisdiction under the recast Brussels Regulation or the Lugano or Brussels Conventions, as these will no longer apply to the UK post-Brexit.
  • It will still be possible to serve out without permission where the court has jurisdiction under the Hague Convention on Choice of Court Agreements 2005 (see this post) or under sections 15B or 15C of the Civil Jurisdiction and Judgments Act 1982 (which has been amended to incorporate provisions mirroring the consumer/employee friendly jurisdiction rules in the recast Brussels Regulation in cases brought by or against UK domiciled consumers or employees, or brought by employees working in the UK or engaged by a UK business – see this post).

Methods of service:

  • Various rules in sections II and III of CPR Part 6 (relating to service of the claim form and service of other documents, respectively) will be amended to remove references to the ability of a party to nominate the business address of a solicitor in an EEA state outside the UK, or of a European Lawyer in any EEA state, as the party's address for service, as these provisions will no longer apply post-Brexit. This is however subject to transitional provisions where a party has given such an address before exit day.
  • CPR 6.41, which sets out the requirements where a party wishes to serve the claim form or other documents in accordance with the EU Service Regulation, will be deleted as that route will no longer be available post-Brexit. Transitional provisions provide that where a party has filed the documents required for service pre-Brexit, but the documents have not been forwarded to the Senior Master by exit day, the court may treat the request as a request for service under a relevant convention or treaty relating to service (such as the Hague Service Convention) or for service through a foreign government or British Consular authority.

Security for costs:

  • The conditions for obtaining security for costs, set out at CPR 25.13, will be amended to provide that the condition based on residency applies where the claimant is resident outside the jurisdiction but not resident in a state bound by the 2005 Hague Convention. The references to states bound by the recast Brussels Regulation and the Brussels and Lugano Conventions are to be removed, subject to transitional provisions to the effect that the existing rules continue to apply in proceedings commenced before exit day.
  • These provisions may be seen as surprising for two reasons.

    • First, the possibility of obtaining security for costs against non-resident claimants is intended to protect against the risk of non-enforcement of costs orders in other jurisdictions. To the extent that Brexit increases that risk, it will do so from exit day, regardless of whether English proceedings have been commenced before that date. Accordingly, it may be seen as surprising that the existing rules will continue to apply in proceedings commenced before exit day.
    • Second, it is not clear why the condition based on residency will not apply where the claimant is resident in a Hague contracting state, regardless of the basis on which the English court has taken jurisdiction in such a case. Hague will apply only where the English court was designated in an exclusive choice of court agreement concluded after Hague entered into force for the UK. If the English court was not so designated, but has taken jurisdiction on some other basis, Hague will not assist with enforcement.

Taking of evidence:

  • The rules in section III of Part 34, relating to the taking of evidence as between the English court and courts of EU member states, will be deleted as the Taking of Evidence Regulation will no longer apply to the UK post-Brexit. There are transitional provisions to reflect the fact that, under the Service of Documents and Taking of Evidence in Civil and Commercial Matters (Revocation and Saving Provisions) (EU Exit) Regulations 2018, the Taking of Evidence Regulation will continue to apply to requests received in the UK before exit day. Further, where before exit day the English court has made an order for the issue of a request in another EU state, but the remaining steps have not been taken, the court may treat the order as one for the issue of a letter of request outside the Taking of Evidence Regulation.

Enforcement of judgments:

  • CPR Part 74 will be amended to remove provisions governing the procedure for applications in relation to recognition and enforcement of judgments under the recast Brussels Regulation and the Brussels and Lugano Conventions, as they will no longer apply to the UK post-Brexit. There are transitional provisions for judgments given in proceedings commenced before exit day, which the UK will continue to enforce under current rules although it seems the EU will not reciprocate (see this post).
  • There will also be amendments to remove provisions relating to European Enforcement Orders and the enforcement of Community judgments, which will become redundant post-Brexit.

References to the European court:

  • CPR Part 68, dealing with references to the Court of Justice of the European Union (CJEU), will be revoked as post-Brexit the English courts will no longer be able to refer questions to the CJEU for a preliminary ruling. Transitional provisions provide that proceedings that were stayed for such a reference before exit day will continue to be stayed unless or until the court directs otherwise.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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