On 23 November 2023, the government published its long-awaited response to the consultation on whether the UK should join the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague 2019). The government has concluded that “it is the right time for the UK to join Hague 2019 and will seek to do so as soon as practicable,” a move welcomed by UK lawyers.
Hague 2019 provides subscribing states with a framework of rules for recognising and enforcing foreign judgments. It was concluded on 2 July 2019 and entered into force on 1 September 2023. Currently, the EU (excluding Denmark) and Ukraine have acceded to the Convention and it will begin to start applying to Uruguay in the next year, with many other countries signing but not yet ratifying it, including Israel and the USA.
The decision by the UK government has been made following a consultation period where all 39 respondents were in favour of the UK joining. In its statement, the government said that “joining Hague 2019 now will allow the UK to… play a leading role in driving the development of this global framework as judges in the UK will be amongst the first to apply and interpret its terms.”
Benefits for the UK
Since leaving the EU, there has been significant ambiguity regarding the enforcement of UK judgments abroad, as well as foreign judgments in the UK. Joining Hague 2019 will ease some of these concerns by simplifying the recognition and enforcement of judgments internationally, hence increasing certainty, and may reduce the cost of cross border litigation.
The adoption of the Convention is intended to provide businesses and consumers with greater confidence when conducting cross border transactions and it is hoped it will strengthen the UK’s position as a forum for dispute resolution and encourage other countries to join.
Gaps left by Hague 2019
The government acknowledges the possible drawbacks which were raised by the respondents including concerns that the UK courts may be compelled to enforce a foreign judgment under Hague 2019 when this may not be the case under the current arrangements.
Parties injured in accidents abroad who would ordinarily rely on the jurisdiction ground derived from the UK Supreme Court’s judgment in FS Cairo V Brownlie  UKSC 45 - ie that English courts will have jurisdiction if ongoing harm is suffered here despite the index accident happening abroad - are likely to face difficulties with enforcement under Hague 2019. The reason for this is that the wording of Article 5(1)(j) requires the act or omission grounding the claim to have occurred in the state of origin. Another gap in Hague 2019 arises where the injured party was a passenger, as this is excluded under Article 2(1)(f) of the Convention. There are further concerns with enforcement of judgments emerging from conditional fee agreements.
The Convention will apply to judicial settlements but Article 3(1)(b) specifically excludes interim measures and the concern is that this may exclude for instance the enforcement of interim payments. A ruling on a preliminary question shall also not be enforced under the Convention.
In addition, there are limitations in the scope of Hague 2019 in contrast with the Lugano Convention. The latter is wider than Hague 2019 as it provides uniform rules on jurisdiction, which Hague 2019 does not. While accession to Hague 2019 would not prevent the UK from joining Lugano, to date the EU has opposed the UK’s attempts to join the latter.
Joining Hague 2019 will address some of the post-Brexit uncertainties associated with cross border civil litigation. However, the shared view of claimant and defendant representatives who responded to the Hague 2019 consultation is that the UK should nevertheless continue to attempt to join Lugano because of the wider scope and greater certainties it would bring to these cases.
Despite the above concerns, overall it is considered that the benefits of Hague 2019 outweigh the drawbacks and therefore the government has concluded that it will move to sign the Convention as soon as possible. It is intended to come into force for the UK 12 months after ratification and ratification will take place once all of the necessary legislation is in place.
Under Article 16 of Hague 2019, the Convention shall only apply to proceedings issued after it has come into effect. Practically therefore it could be some time - the 12-month lead in period above plus the lifecycle of a claim, from issue to judgment - before practitioners see cases ready for enforcement under these arrangements.
Mandeep Chahal-Dhillon is a Senior Associate Solicitor and a member of the Clyde and Co Cross Border Subject Matter group.