Cross-border Litigation after Brexit

On 31 December 2020, the Brexit transition period came to an end. The UK then ceased to be bound by EU law. 

Before Brexit, claimants within the UK could benefit from the Recast Brussels Regulation and Lugano Convention allowing them to bring a claim against an EU insurer within the UK. However, this is no longer the case.

Claimants can no longer use the European Communities (Rights Against Insurers) Regulations 2002 for accidents abroad. This is because it only allows right of actions for accidents within the UK and involving a vehicle normally based within the UK.

The relevant law for torts is now:

• Rome (II) Regulation (EC) No 864/2007

Rome II has been adopted into UK domestic law. The authority for adopting Rome II is the Law Applicable to Contractual and Non-Contractual Obligations (Amendments) (EU Exit) Regulations 2019. Article 18 of Rome II states that if the law of the insurance contract between the foreign registered driver and the foreign insurer provides for a direct right of action against that insurer then the claim can be brought against the insurer. However, the court would still have to accept jurisdiction.

The general rule (post-Brexit)

The position generally for matters where the accident happened abroad from 1 January 2021 is that even if the claimant is a UK registered driver if the accident occurred in an EU Member State, the applicable law will be that of the EU Member State. Court proceedings should, therefore, be commenced and served in the jurisdiction of the EU Member State where the accident and damage occurred.

If the accident happened in the UK then the damage suffered by the UK claimant had occurred in the UK and Rome II will apply.

Exceptions to the general rule

Sometimes the claimant may argue that the applicable law of Rome II can apply to a UK court.

There are two steps to overcome within this process.

The first step is that the claimant needs to bring himself within a ‘gateway’. The most relevant gateways would be that damage has been or will be sustained in England. If the accident occurred in England then this is an easy step to overcome. On the contrary, if the accident happened in an EU Member State, the claimant will need to show that some indirect damage was sustained in England. Such examples include treatment, care provided or loss of earnings.

The second step is that the claimant will have to persuade the English court that it is a convenient forum for the claim to be heard. Relevant factors would include where the claimant and defendant both live, if there are any relevant claims, and where the witnesses are based.

Examples

The courts are taking this on a case-by-case approach.

In the case of Lunn v Antarctic Logistics [2024] it showed that each case is fact dependant. In this case, a UK claimant was a self-employed engineer carrying out maintenance to the defendant’s facility in Antarctic. The first test was satisfied that there was damage sustained or will be sustained in the UK. In relation to the convenient forum, the judge stated that it was not a question of ‘convenience’ but establishing the appropriate forum. The burden is on the claimant to prove this. In this case, the test was met and the claim proceeded. One relevant factor was that the defendant’s evidence was less comprehensive than the claimant’s.

In the recent case of Graham v Fidelidade [2024], the claimant was a British national who was in Portugal when an accident occurred. He had been travelling around Europe in a motorhome. The court stated that the matter could be dealt with in England and Wales. The court took into account:

• The matter was only in relation to quantum;
• The claimant intended to rely upon witnesses all based in England;
• The defendant did not intend to rely on any witnesses; and
• If the claimant was tried in the EU Member State the documents would need to be translated.

Summary

Since the rules have changed, the courts are taking the approach on a fact-specific basis and looking at all the relevant factors associated with each case.

For more information, please contact Bhavna Khokani - Solicitor