BREXIT, APPLICATIONS AND THE LEGAL LABYRINTH: A CASE TO POINT

July 8, 2021 · by · in Applications, Brexit, Civil Procedure

The legal problems caused by Brexit raised their head in the judgment of Master Clark in Shanavazi, Re [2021] EWHC 1832 (Ch).

 

“It will be apparent from this judgment that a relatively simple practical problem has given rise to legal issues of considerable complexity. The asset in question, although of significant value to most people, is modest by the standards of this court, and in relation to the time and costs incurred in disentangling the labyrinthine provisions discussed above. Mrs Shanavazi’s solicitor was diligent in her research, but I also had to carry out substantial research. I was informed by Mrs Shanavazi’s solicitor of 2 previous occasions when the court had simply made an order in similar cases without giving any reasons, and I am aware of another occasion when this has occurred. It is highly regrettable that this family have had to engage with such complex legal issues simply to sell a house in Germany in which a child has an interest.”

 

THE CASE

The claimant sought a declaration authorising her, on behalf of her minor son, to sell property in Germany.  The family no longer lived in Germany and retention of the property was causing the family practical and financial difficulties.

 

JURISDICTION

This simple issue (where orders are sometimes made without a hearing) led to complex issues of EU law.

THE JUDGMENT ON THIS ISSUE

The Master set out the problems caused by Brexit and, after detailed consideration of the law, the relatively simple answer.

 

Jurisdiction under English law – before and after Brexit
    1. Before the UK left the European Union, the Regulation (as an EU Regulation) had direct effect, and was required to be applied as law by the courts of EU member states. It became part of UK domestic law as a result of provisions in the European Communities Act 1972[3].
    1. The European Union (Withdrawal) Act 2018 (“the 2018 Act “), as amended by the European Union (Withdrawal Agreement) Act 2020 (“the 2020 Act “), contains provisions for EU law to continue to have effect as part of UK domestic law, unless UK statutory provisions are made to the contrary. Section 3(1) of the 2018 Act provides:

“Direct EU legislation, so far as operative immediately before IP Completion Day, forms part of domestic law on and after IP Completion Day” [4]

    1. “IP Completion Day” is 11pm on 31 December 2020[5]. Accordingly, if there were no provisions to the contrary in a statutory instrument, the Regulation would remain as part of UK domestic law. However, regulation 3 of the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/519) (“JJFAEEUER”) provides “Council Regulation No. 2201/2003 is revoked”. Thus, the Regulation is revoked as from 11pm on 31 December 2020[6].
    1. There are, however, transitional provisions. Section 7A of the 2018 Act, as introduced by the 2020 Act, gives effect to transitional provisions contained within the UK/EU Withdrawal Agreement. It provides:

“7A General implementation of remainder of withdrawal agreement

(1) Subsection (2) applies to—

(a) all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the withdrawal agreement, and

(b) all such remedies and procedures from time to time provided for by or under the withdrawal agreement,

as in accordance with the withdrawal agreement are without further enactment to be given legal effect or used in the United Kingdom.

(2) The rights, powers, liabilities, obligations, restrictions, remedies and procedures concerned are to be—

(a) recognised and available in domestic law, and

(b) enforced, allowed and followed accordingly.”

    1. Article 67 of the Withdrawal Agreement provides, so far as relevant:

“Article 67

Jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities

1. In the United Kingdom, … in respect of legal proceedings instituted before the end of the transition period … the following acts or provisions shall apply:

…

(c) the provisions of [the Regulation] regarding jurisdiction

…

2. In the United Kingdom, …, the following acts or provisions shall apply as follows in respect of the recognition and enforcement of judgments, decisions, authentic instruments, court settlements and agreements:

…

(b) the provisions of the [Regulation] regarding recognition and enforcement shall apply to judgments given in legal proceedings instituted before the end of the transition period, and to documents formally drawn up or registered as authentic instruments, and agreements concluded before the end of the transition period”

    1. Finally, regulation 8 of JJFAEEUER, as amended by reg 5 of the Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020, SI 2020/1574, provides:

“Nothing in these Regulations affects the application of paragraphs 1, 2(b) and (c) and 3(a) and (b) of Article 67 of the withdrawal agreement and legislation amended or revoked by these Regulations continues to have effect for the purposes of those paragraphs as if the amendments and revocations had not been made.”

  1. The upshot of this convoluted legislative journey is that the Regulation continues to govern jurisdiction in claims commenced before 31 December 2020 (which this claim was), and is “retained EU law” under s.3 of the 2018 Act[7].
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