High Court Considers When Recast Brussels Regulation Continues To Apply In Transitional Cases

• Published date: 26 July 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Libel & Defamation
• Law Firm: Herbert Smith Freehills
• Author: Ms Anna Pertoldi and Maura McIntosh

The High Court has considered when the rules in the recast Brussels Regulation will continue to apply to English proceedings commenced post-Brexit: Simon v Tache [2022] EWHC 1674 (Comm).

The decision confirms that, pursuant to article 67 of the EU-UK Withdrawal Agreement, the "lis pendens" provisions in the recast Brussels Regulation continue to apply in the UK where proceedings were started in an EU member state before the end of the Brexit transition period (31 December 2020) and the English proceedings were started only after. The court rejected an argument that the English proceedings also had to be commenced before that date.

Under the lis pendens rules, where proceedings are identical, the court second seised must stay its proceedings until the first court determines whether it has jurisdiction (under article 29); where the proceedings are related, the court second seised has a discretion to stay (under article 30). Here, as the English proceedings were found to be second in time and identical to Belgian proceedings commenced in 2020, the English court was obliged to stay its proceedings until the Belgian court determined whether it had jurisdiction.

The court also held, taking the same approach as in an earlier High Court decision, that where English (or EU) proceedings were commenced before the end of 2020 and further claims or defendants are sought to be added now, post-Brexit, the rules in the recast Brussels Regulation continue to apply to determine whether the court has jurisdiction over those claims and defendants.

What remains uncertain from the decision, however, is which jurisdiction rules apply where English proceedings were commenced after 31 December 2020 and there are identical or related proceedings commenced in an EU member state before that date. In other words, whether the English court must apply the common law rules, with the lis pendens rules being considered only if the English court considers it has jurisdiction under the common law rules, or whether all the rules on jurisdiction in the recast Brussels Regulation, not only the lis pendens rules, must be applied. The court will consider this further at a consequentials hearing.

The point turns on the correct interpretation of article 67(1) of the Withdrawal Agreement, which provides as follows:

"1. In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, in respect of legal proceedings instituted before the end of the transition period and in respect...