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Losing Lugano? Opening the door to justice delays

I. Stephanie Boyce, Law Society president, considers the stakes for access to justice if the UK is unable to rejoin the Lugano Convention.

EU flags outside European Commission building

When we left the EU and the transition period ended, we exited the common framework for jurisdiction rules and enforcement of judgments created by the Brussels I Regulation.

For UK consumers, a vital element of Brussels I was mutual recognition of court judgments across the EU: that if you had a complaint about a product you’d bought in another EU state and had to resort to legal action, you could raise your case in a local court with the knowledge its decisions would fully be respected across the bloc.

That regime is very similar to the 2007 Lugano Convention – which we used also to belong to by virtue of our EU membership. However, we could rejoin Lugano as a non-EU country. Switzerland and Norway are members, for example.

For many months now we have been working to raise awareness of Lugano, securing backing of the UK government last year to apply for re-entry.

Now we wait on Brussels – but, at the moment, the signs aren’t good. The EU Commission seems hostile to our accession and we await the decision of the Council of the EU.

If we’re not successful, cross-border enforcement of commercial and civil court judgments is in danger of getting more complicated and costly for businesses and individuals.

So what’s it all about?

Lugano supports the autonomy of parties to a contract to choose a jurisdiction in Europe in which to settle any disputes. It also allows the continuation of the current choice of court agreements despite Brexit.

And it provides protection where one of the parties is deemed to be in a weaker position than the other: there are special regimes for employment, insurance and consumer contracts, and maintenance orders.

It therefore makes litigation more accessible, whether you are an employee with a grievance, a consumer let down by a goods or service provider, or a parent trying to enforce a maintenance order.

Lugano already applies between EU and members of the European Free Trade Area (EFTA) states, but, like I said, it’s also available for non-EU and non-EFTA countries

Losing the Lugano framework means reverting to the national laws of each individual country to decide which court has jurisdiction over a legal issue and whether a judgment will be recognised and enforced.

It opens the door for people in the UK or EU to try to take advantage of different legal systems to delay justice.

It also pushes litigation beyond the reach of all but the deepest of pockets – the wealthiest corporations and individuals will still be able to enforce their rights. Without Lugano, access to justice will denied to those with smaller budgets.

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