Tuesday, 12 March 2019

Questions (3)

Jim O'Callaghan

Question:

3. Deputy Jim O'Callaghan asked the Minister for Justice and Equality the position regarding the need to update the regulations that govern the jurisdiction of courts in civil and commercial matters following the departure of the United Kingdom from the European Union; and if he will make a statement on the matter. [12315/19]

View answer

Oral answers (6 contributions) (Question to Justice)

This issue relates to the Brussels Convention on civil jurisdiction. The Brussels regulation provides for jurisdiction and enforcement of judgments in civil and commercial matters. After 29 March, there will be considerable uncertainty as to how civil jurisdiction will operate. As a result, we need clarity in respect of the issues. What is the current position regrading the continuity of jurisdiction for civil and commercial matters after 29 March?

The question is based on consideration on the part of Deputy Niall Collins of a no-deal Brexit. The Government remains firmly of the view that the best and only way to ensure an orderly UK withdrawal from the EU is for the withdrawal agreement to be ratified. Debates in this regard are under way in other jurisdictions as we speak. Nonetheless, in view of the ongoing uncertainty in the UK, my Department has been planning for every scenario, but particularly for a no-deal or worst-case scenario of the type to which the Deputy refers.

By way of background, there are a number of EU regulations that set down the jurisdiction rules which apply in the civil and commercial area. The Deputy will appreciate these matters are quite legally technical and persons who consider they may be impacted will likely require legal advice. The key instrument here is the Brussels I regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. However, there are regulations, not falling within the justice sphere, that also deal with jurisdiction, for example, Council Regulation (EC) No 207/2009 on the Community trademark. These instruments are couched in broad terms and, depending on content, it is for individual member states to make them work within their legal system.

On the rules that will apply to the UK in the event that EU regulations no longer apply, the Deputy is aware that since the late 1980s international jurisdiction in cases concerning Ireland and the UK in civil and commercial matters has been governed by the 1968 convention on jurisdiction and the enforcement of judgments in civil and commercial matters, which is generally known as the Brussels Convention. In the event of a disorderly Brexit, the Brussels I rules would no longer apply as between the EU 27 and the UK. The governing legal framework would then be a mix of domestic law and international agreements.

I thank the Minister. We all know and accept that Ireland did not vote for Brexit but we must deal with the consequences. If the UK is no longer a party to the recast Brussels regulation or is not a signatory to similar conventions, such as the Lugano Convention, it will be more difficult for judgments in Ireland to be enforced in the UK or vice versa. There is also potential for conflict regarding which court will have jurisdiction on cross-border UK-EU disputes. Brexit will mean an additional court process will be required to be undertaken before suing defendants who reside in the UK, as leave of the Irish High Court will have to be obtained. The Minister stated that this is complex, and we all know and appreciate this, and that the entire situation is fluid given that Westminster is debating it today and there will be a number of votes on it this week. Have the Minister or his colleagues in government engaged with their UK colleagues regarding the intended available courses of action that may have to be taken?

I assure the Deputy that, at official and ministerial level, these issues have been the subject matter of discussion. I met the Secretary of State for Justice, David Gauke, on a number of occasions and we have discussed how best to deal with these issues. However, I need to make clear that the general enforcement of UK judgments in Ireland will be governed by the rules that apply to third countries because the UK will be out of the European Union. In practice, therefore, application of these common law rules will mean that UK parties seeking enforcement of judgments will have to issue proceedings seeking an Irish judgment in the terms of the foreign judgment before being able to obtain any enforcing measure. This is technically challenging. While many Government agencies have been most active in ensuring that our large and small commercial entities are Brexit ready, it is an inevitable consequence of a disorderly Brexit that litigation in the civil area may become more difficult for such entities. This is a matter over which the Government has very little control because Ireland is not free to enter bilateral arrangements with the UK on jurisdiction rules that will apply between ourselves in civil and commercial matters. As stated, it would be prudent for anybody contemplating litigation against a UK defendant to seek legal advice on the options available to him or her in the event there is a disorderly Brexit on 29 March.

As Ireland has a land border between the UK and the EU, this will create problems unique to the island, which the Minister will appreciate. The issue will be particularly acute in the Border region. Areas such as intellectual property, data protection, competition law, employment law and other regulated sectors that are subject to EU-wide legislation are much more likely to be impacted by Brexit. As a result, these issues are likely to be prioritised following the UK's departure. However, the uniqueness of the Border will likely generate unique issues to be resolved and it will be up to Irish officials to bring them to the fore at EU level. Will the Minister and the Government commit to the development of an early-warning system, particularly in the area of cross-border litigation?

It is absolutely essential that we continue the work being done by a number of agencies and business organisations under the banner of ensuring that people are Brexit ready. In the area of rules of jurisdiction and, as specifically mentioned by the Deputy, civil and commercial issues, there are a number of challenges. It will be necessary, for example, to seek leave of the High Court or Circuit Court, as appropriate, to have proceedings served in another jurisdiction. Such cases would include those where the action relates perhaps to land in Ireland, in the Border area or any area, and the action is founded on a tort committed in Ireland or the action affects a contract made in Ireland and, of course, governed by Irish law. In other cases it may be necessary to bring the action before a court in the United Kingdom, including in Northern Ireland. This is not an area in which the EU has exclusive competence and it is not possible to enter into a bilateral agreement with the UK as regards arrangements for jurisdiction. My advice is to ensure that there is a proper and adequate information campaign, that the Government has a role to play in this regard and that persons contemplating legal action after 29 March do so on the basis of legal advice available to them.