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Instituted proceedings: cases pending at the end of the Brexit transition period

Under article 67 of the Withdrawal Agreement, EU rules on jurisdiction, recognition and enforcement of judgments will continue to apply to UK-EU cross-border disputes where civil or commercial proceedings have been instituted before the end of the transition period. This includes insolvency and family law proceedings.

The question for practitioners is: when exactly are proceedings considered to be instituted?

The CJEU position

Case law from the Court of Justice of the European Union (CJEU) has consistently held, since Case 129/83, that the national law of member states determines when proceedings have been instituted.

This principle was affirmed by the CJEU in cases 144/86, C-111/01 and C-365/88.

In case C-507/14P, the CJEU found that the definition of the time when a court is deemed to be seised is ‘autonomous’.

The position in England and Wales

In England and Wales, civil proceedings are started when the court issues a claim form at the request of the claimant (rule 7.2 of the Civil Procedure Rules).

A claimant can set out details of their claim in the particulars of claim, which can be filed and served at the same time or later (subject to strict deadlines).

This issue is further touched upon in the draft statutory instrument before Parliament on the Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020.

This states that a court is seised:

  • at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps the applicant was required to take to have service effected on the respondent; or
  • if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps the applicant was required to take to have the document lodged with the court

The position after the end of transition

The issue is that each EU member state will have its own procedural rules regarding when proceedings have been instituted.

Lawyers representing clients in cross-border EU-UK disputes will have to check the national law in the member state where the proceedings have been initiated to determine whether the proceedings have been instituted before the end of the transition period.

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