What does Brexit mean for Service and the taking of evidence

• Europe
• United Kingdom

• Brexit
• Competition, EU and Trade - Brexit
• Litigation and dispute management

25-07-2016

This briefing represents Eversheds' view at the time of publication and some of its content is now out of date. We continue to monitor our legal briefings to ensure our content remains up to date. For our latest views on this topic please see our Brexit Hub.

Overview

Currently, permission is not required to serve an English and Welsh claim abroad where the English and Welsh courts have jurisdiction under the Recast Brussels Regulation, the Lugano Convention or the 2005 Hague Choice of Court Convention. Service into other EU Member States is governed by the EU Service Regulation (1393/2007), which will probably cease to apply following Brexit. It is also possible, under CPR 6.7 and 6.8, to instruct a solicitor or European lawyer within another EEA State to accept service of proceedings or to provide an address for service in another EEA State. These provisions will need to be reviewed once the UK leaves the EU.

Obtaining evidence, or dealing with requests for evidence, from courts in other EU jurisdictions is covered by the Evidence Regulation (1206/2001), which promotes cooperation between EU Member States (except Denmark) in the taking of evidence for use in proceedings.

What will change?

Once the UK leaves the EU, unless alternative arrangements are entered into, it will be necessary to obtain permission to serve outside the jurisdiction in circumstances currently covered by the Recast Brussels Regulation, Lugano Convention or 2005 Hague Choice of Court Convention. The UK might accede in its own right (as opposed to through its current membership of the EU) to the Lugano Convention (in place between the EU and most European Free Trade Association (EFTA) States) or the 2005 Hague Choice of Court Convention (between the EU (excluding Denmark), Mexico and Singapore).

For service, there are a number of options open to the UK, including possible adoption of the Service Regulation into domestic law (unlikely). In the absence of arrangements similar to the Service Regulation, service into the EU will have to accord with the 1965 Hague Service Convention (to which the UK is already a party), other applicable treaties or local law. Depending on the approach taken, we expect that CPR 6.30-6.52 which deals with permission and process for service out of the jurisdiction will need to be reviewed and amended. The CPR provisions allowing service on solicitors, European lawyers and defendants’ addresses in EEA States may also be repealed or limited.

With regard to obtaining evidence from EU courts, we do not expect any significant change. Although the Evidence Regulation will stop applying automatically in the UK, the UK and most other EU Member States are signatories to the 1970 Hague Evidence Convention, which will continue to apply to incoming letters of request. The Evidence (Proceedings in other Jurisdictions) Act 1975 applies to the English and Welsh courts’ handling of incoming requests from non-EU courts, including the other jurisdictions within the UK itself, and will, in all likelihood, apply to EU Member States following Brexit.

Should I be worried?

Until the UK actually exits the EU, the current provisions for permission, service, and obtaining of evidence remain in place. Given the requirements of Article 50, there will be no impact on those mechanisms for at least two years from the point of notice. It is unlikely that exit negotiations will be concluded sooner. Parties engaged in current litigation with cross-border evidence issues, or those contemplating litigation which requires cross-border service, may need to take advice on the best course of action, once the direction of the UK’s exit becomes clearer. Until then there is no pressing hurry.

Eversheds’ expert prediction

Our view is that the UK is likely to accede to the Lugano Convention (and also the 2005 Hague Choice of Court Convention which has a narrower but different scope) in its own right. If this is the case, the main difference from the current regime will be that there will be fewer instances in which a party will be exempt from permission when relying on an exclusive jurisdiction clause, but there will not be much change in terms of the practical steps for service out of the jurisdiction. Since the UK is already a signatory to the 1965 Hague Service Convention, which permits service through state authorities (subject to local law), this may suggest that the mechanics of service within the EU are unlikely to change.

Practical steps might include parties who are negotiating contracts with an English and Welsh jurisdiction clause to consider nominating an agent for service of process within the jurisdiction to mitigate any uncertainty with regard to permission and service once the UK has exited the EU. The 1965 and 1970 Hague Conventions should provide a fallback in relation to most EU countries if new arrangements for service and evidence are not expressly agreed in the EU exit agreement.