The government has issued the first of its 'no-deal' Brexit guidance on justice matters - telling businesses and families involved in cross-border disputes that they may want to seek legal advice.
The Ministry of Justice today published a technical notice about its plans for civil judicial cooperation in the 'unlikely' event of a no-deal Brexit.
Currently the UK applies EU rules to determine which country's courts hear civil, commercial or family law cases raising cross-border issues with other EU countries; which country's laws apply; how a judgment obtained in one EU country should be recognised and enforced in another; and how cross-border legal procedural matters are handles, such as taking evidence from one country to use in proceedings in another jurisdiction.
Most EU rules operate on reciprocity between member states. Should there be a no-deal Brexit on 29 March, the UK would repeal most of the existing civil judicial cooperation rules and follow domestic rules currently applied to non-EU countries. Existing international agreements, such as the Hague Conventions, would continue to apply, though the ministry says they are not always as comprehensive.
The ministry adds: 'Any party to a cross-border legal dispute, including businesses, consumers and families, would need to consider the effect that these changes would have on any existing or future cases involving parties in EU countries. Where appropriate you may wish to seek professional legal advice on the implications of these changes for your individual circumstances.'
The ministry says the UK would retain Rome I and II rules on applicable law in contractual and non-contractual matters, which generally do not rely on reciprocity. The UK would formally re-join the 2005 Hague Convention on Choice of Court Agreements 'in our own right'.
The UK would retain EU rules that enable UK courts to have jurisdiction where a company or individual is based in the UK. However, UK insolvency practitioners would need to apply under an EU country’s domestic law to have UK orders recognised there.
The ministry says Hague Convention rules provide an 'effective alternative' to EU rules on family law cooperation - although they do not cover all areas, such as divorce jurisdiction.
The ministry says it would seek to provide 'legal certainty' for those involved in ongoing cases on 29 March: 'Broadly speaking, cases ongoing on exit day will continue to proceed under the current rules. However, we cannot guarantee that EU courts will follow the same principle, nor that EU courts will accept or recognise any judgments stemming from these cases. Individuals with cases in progress on 29 March are encouraged to seek legal advice on how this may affect them.'