Rules on jurisdiction after Brexit
This guidance sets out the implications for rules on jurisdiction in relation to cross-border EU proceedings from the expiry of the Brexit transition period.
- for UK lawyers involved in cross-border civil or commercial proceedings in relation to EU member states
- only in the event that the UK application to the Lugano Convention is not approved by the EU
From 1 January 2021, the rules of jurisdiction set out in the Brussels I Regulation ceased to be applicable.
In England and Wales, unless the case falls within the Hague Choice of Court Convention 2005, jurisdiction depends principally on whether the defendant can be served with proceedings, either within the jurisdiction or (with the court’s permission) outside the jurisdiction.
To obtain permission to serve out of the jurisdiction, it must be shown that:
- there’s a “good arguable case” that each claim falls within at least one of the jurisdictional gateways at paragraph 3.1 of Practice Direction (PD) 6B, which serve to establish a connection between the claim and the jurisdiction of England and Wales
- there’s a serious issue to be tried or a reasonable prospect of succeeding on the merits of the underlying claim
- England and Wales is “clearly or distinctly the appropriate forum” and the court should exercise its discretion to give permission to serve proceedings out of the jurisdiction (Lord Collins of Mapesbury in AK Investment CJSC v Kyrgyz Mobile Tel Ltd  UKPC 7)
When a claim is served within the jurisdiction, the defendant can seek to persuade the court to stay the proceedings on the basis that there is another available forum which is clearly or distinctly more appropriate.
A non-exhaustive list of the gateways at PD 6B includes claims:
- for an injunction restraining the defendant from doing an act within the jurisdiction
- in respect of a contract which was made within the jurisdiction or is governed by English law
- in respect of a breach of contract committed within the jurisdiction
- in tort where (a) damage was sustained, or will be sustained, within the jurisdiction; or (b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction
- relating wholly or principally to property within the jurisdiction or
- against a co-defendant who is a necessary or proper party to proceedings that have been or will be served on another defendant
Instituted proceedings: cases pending at the end of transition
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.