Brexit Litigation Impacts

Outlined below are the 5 key areas of potential impact of Brexit on Litigation

  1. Recognition of Foreign Judgments: if the UK does not agree to a convention on the reciprocal enforcement of judgments or agree a formal regime with the EU, then enforcement of UK judgments in Ireland and Irish judgments in the UK will be subject to international conflict of laws rules. Accordingly, judgments will still be capable of enforcement but it will likely add time and cost to such cross-border enforcement.
  2. Common Law System and Courts System: Ireland may become the choice of jurisdiction for litigation following Brexit. With a similar courts structure to the UK and a familiar setting for businesses familiar with the structure it will be a comfortable choice for businesses to conduct legal affairs. The Tánaiste and Minister for Justice and Equality, Frances Fitzgerald TD has issued a press release announcing that a Group, to be chaired by the President of the High Court Mr Justice Peter Kelly, would be set up to review and reform the administration of civil justice in the State. The Group will make recommendations for changes with a view to improving access to civil justice in the State, promoting early resolution of disputes, reducing the cost of litigation, creating a more responsive and proportionate system and ensuring better outcomes for court users.
  3. Litigation Funding: the current discourse on litigation funding is live in the pending Supreme Court case of Persona Digital Telephony Ltd v The Minister for Public Enterprise [2016] IESCDET 106. The Supreme Court reserved judgment in the case on 3 April 2017. We await their decision in the wake of the recent decision in SPV Optimal Osus Limited v HSBC Institutional Trust Services (Ireland) Limited & Others (Unreported, Court of Appeal, 2 March 2017) [2017] IECA 56). The Court of Appeal found that the High Court did not have to find that there was an intention on the part of the assignee to engage in the trading of litigation, whether professional or otherwise. It affirmed the decision of the High Court and it distinguished between the decision in Greenclean Waste Management Ltd v Leahy (No.2) (Unreported, High Court, Hogan J, 5 June 2014) [2014] IEHC 314 and (Unreported, Court of Appeal, 8 May 2015) [2015] IECA 97, stating that where there the plaintiff was not supporting the litigant, but purchasing the right to litigate this particular claim. Click here for further comment.
  4. Employment Rights and EU Law: numerous employment rights derive from EU legislation and following on from Brexit what will their status be? It seems likely that the UK government will preserve employment rights that derive from EU law. It also looks likely that EU nationals who are already resident in the UK will be allowed to stay.
  5. Mediation and ADR in Ireland: similar to our Courts system Ireland’s alternative dispute resolution fora are a strong alternative for businesses seeking to partake in these methods of dispute resolution. The Mediation Bill 2017 has passed second stage and has been referred to Committee, this furthers Ireland’s commitment to methods of ADR. For a discussion on the practicalities of Mediation click here.