Hague 19 on Recognition and Enforcement of Judgments : what does it mean for victims of personal injury?

The Hague Convention on the Recognition and Enforcement of Foreign Judgments 2019 (Hague 19) is focussed on civil and commercial matters. 

Hague 19 provides a framework for recognition and enforcement across contracting states. The recent news that the UK will sign up to the Convention is positive as this will address some of the gaps in legislation left behind post-Brexit. 

However, practitioners, academics and those with an interest in private international law are encouraged to curb any vague hope that this is a step in the right direction towards future UK-EU co-operation. 

The decision to join Hague 19 was a unilateral one, that the UK made itself. The EU27 did not have to agree to the UK taking this step – and so we are a long way from Lugano territory.

On the bright side, Hague 19 will enable parties, predominantly businesses, across all three UK jurisdictions to enforce UK Court rulings in other countries, and vice versa. This is undoubtedly a positive step and will facilitate certainty and a more predictable regime in commercial litigation. 

What it means for those who suffer personal injury?

However, victims of personal injury will find little assistance in the form of Hague 19. The question as to whether Hague 19 could be an acceptable substitute for the Brussels regime has been raised countless times both in the run up to, and aftermath of, Brexit. 

The Law Society, as well as APIL, both with input from Irwin Mitchell, amongst other firms, responded on behalf of victims of personal injury to a consultation launched earlier this year by the Ministry of Justice, the review of which led to the decision to join Hague 19. 

The content of the submissions relating to victims of personal injury aims to raise awareness of the ways in which victims of personal injury – arguably those most in need of a clear cross- border legislative regime, including reciprocal enforcement of judgments across European countries – remain without recourse in a number of situations. Sadly, those most badly injured and who suffer the most extensive financial losses are the ones who need judicial co-operation the most, but remain without. 

Key points

Some of the key points raised are : 

• Whether Article 2.1 (f) concerning the carriage of passengers effectively excludes passengers in an RTA from relying on Hague 19, whereas a non-passenger could rely on the convention.
• Orders for interim measures such as interim damages orders or disclosure orders are seemingly excluded from the scope of Hague 19 under Article 3.1(b).
• The perceived requirement under Article 5.1 (j) for damage for which a person seeks compensation to have occurred in the state of origin of the claim. 
• Whether Article 5.1(j) also seeks to exclude claims brought by bereaved families on the basis that their loss is “indirect”.
• Whether Article 7 might operate to exclude enforcement of judgments relating to costs payable pursuant to a Conditional Fee Agreement. 

Conclusion

Hague 19 will enter into force in the UK 12 months after it is ratified – likely end 2024 or early 2025 at this stage. It is undoubtedly a step in the right direction, but here’s hoping that it’s the first of many steps and not the end point.

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