Little has been said in the debate about Brexit regarding the importance of the EU system of enforcement of agreements and judgments across borders. It is in fact one of the cornerstones of safe and successful trade between British and European companies.
This is not about the European Court of Justice (whose main remit is simply to ensure that all EU countries and courts apply the rules of the single market in the same way, equally and fairly, whatever the nationality of the parties). The enforcement of judgments and agreements is about, for example, a British company being able to enforce a judgment it has against a French company without undue hassle or difficulty. Enforcing a judgment in most countries outside the EU can be difficult. The UK has no enforcement agreement with the USA where it is up to individual courts whether they will help. In some countries it is virtually impossible to enforce a judgment.
Does this matter? Well of course most transactions don’t end up in legal proceedings. But for those that do the ability to enforce is essential or the legal proceedings are pointless and are simply a waste of money. At Cerulean Chambers we have considerable experience of cross border litigation and enforcement of judgments. In our view no longer being part of the EU legal enforcement of judgments framework will work heavily against British companies and consumers in protecting their rights.
For example some years ago one of our members acted on behalf of an English seed grower, a small family business, that had sent seeds to Holland for propagation only to be cheated out of the sale proceeds. They were able to obtain an injunction in the English High Court which could be immediately enforced in Holland to protect their property and prevent its being effectively stolen. To have done that outside the EU would have been a slow and cumbersome process with no certain result.
So Brexit will mean that whereas European courts at present accept, without question, the decisions of British courts, and do what is needed to enforce them, all this may change. Which means less certainty, more expense, but probably more money for lawyers like us who specialise in foreign enforcement.
We, at Cerulean Chambers, have unparalleled experience in providing our services as commercial barristers direct to our corporate and individual clients.
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