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Lords: Government must address uncertainty over judicial reciprocity

Peers highlight need for new arrangements to protect families and businesses

20 March 2017

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‘Real hardship’ awaits families and businesses unless the government ensures the mutual recognition of court judgments across the EU is duplicated post-Brexit, a House of Lords committee has warned.

The EU’s programme of civil justice cooperation provides clarity over where legal disputes should be pursued and cannot be replaced by domestic legislation, according to the EU Justice Sub-Committee’s report Brexit: justice for families, individuals and businesses?

‘The evidence provided to us suggests that the loss of certainty and predictability resulting from the loss of the [Brussels I Regulation] … will lead to an inevitable increase in cross-border litigation for UK based citizens and businesses as they continue to trade and interact with the remaining 27 EU member states.’

If the UK leaves the EU without agreement on the post-Brexit application, then ‘significant problems’ will arise for UK citizens and businesses, the report continues.

Evidence given by the Law Society showed that the current uncertainty surrounding Brexit is already having an impact on the UK’s market for legal services and commercial litigation.

‘The government urgently needs to address this uncertainty and take steps to mitigate it’, says the report, which called for consideration of ‘interim measures’ to address the problem while the new UK-EU relationship is negotiated.

Meanwhile, the committee also have ‘significant concerns’ over the impact of the loss of the Brussels IIa and Maintenance Regulations post-Brexit, particularly on the loss of the provisions dealing with international child abduction.

‘We are not convinced that the government has, as yet, a coherent or workable plan to address the significant problems that will arise in the UK’s family law legal system post-Brexit, if alternative arrangements are not put in place.

‘It is therefore imperative that the government secures adequate alternative arrangements, whether as part of a withdrawal agreement or under transitional arrangements.’

The government’s intention to break the link with the EU’s highest court, the Court of Justice of the European Union (CJEU), was also a cause for concern among peers who said strict adherence to this policy would ‘severely limit its post-Brexit options for adequate alternative arrangements’.

Commenting on the report’s findings, Baroness Helena Kennedy QC, chair of the committee, said: ‘Unless the government can agree a replacement of the existing rules on mutual recognition of judgments, there will be great uncertainty over access to justice for families, businesses and individuals.

‘The committee heard clear and conclusive evidence that there is no means by which the reciprocal rules currently in place can be replicated in the Great Repeal Bill. Domestic legislation can’t bind the other 27 member states.

‘We therefore call on the government to secure adequate alternative arrangements, whether as part of a withdrawal agreement or a transitional deal.’

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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Legal services EU & International Family Commercial