Chris Deacon writes for PI Focus discussing how the Recast Regulation protects injured people’s rights, what might happen to it post-Brexit, and why this is of importance to commercial parties as well as personal injury claimants.

This article reflects the Brexit position at time of going to press, January 2019.

Before Brexit takes place, urgent action needs to be taken to preserve or replace existing rights that give important protections for people who are injured while travelling in the EU.

Much has been said about similar legal provisions in the commercial arena, but now a voice for those who are seriously injured is well overdue.

Under current EU rules, UK residents who are injured while travelling in the EU can return home and take legal action in their home courts, often directly against the liability insurer of the individual or company responsible for an accident. This is thanks to a piece of EU legislation of fundamental importance called the Recast Regulation.

Imagine three situations involving you, or people you know who live in the UK:

  1. you are on your hard-earned holiday to Spain. While crossing the road outside your apartment you are run down and seriously injured by a passing motorist who failed to stop when they should have done.
  2. you are sat with your family by your hotel swimming pool in France, which you return to year after year. As you know the hotel well you have booked directly, not as part of a package holiday. A parasol which should have been secured to the ground is taken by the wind and strikes one of your children, leaving them with permanent facial and head injuries.
  3. your partner is away on business in Poland when you receive a call that they have been killed in a minibus crash when being transported from a meeting back to the airport. The minibus driver fell asleep at the wheel.

These situations may sound dramatic, but the reality is that millions of UK residents travel to the EU every year, for holidays and business, and sadly many hundreds will be involved in similar accidents, suffering injury and loss as a result of someone else’s negligence.

What will happen to the Recast Regulation on Brexit day?

As things stand, the Recast Regulation will stop being a part of UK law on Brexit day.

People injured in an accident abroad in the EU will lose the important protections and safeguards provided by the Regulation.

There is a real risk that the UK government will have to pick up the bill and meet the long-term needs of those who have been injured.

We will revert to the existing domestic common law and statutory rules in the area of jurisdiction and enforcement.

These rules are complex and uncertain, and allow the UK courts discretion to decline to deal with a case if they think the courts of another country would be more appropriate.

Urgent action is needed to ensure the Recast Regulation is preserved or replaced by effective legislation.

Its replacement must maintain the rights of those who have been injured to bring a claim in their home courts, where language, difficulties with funding a claim and the prospect of travelling overseas for court hearings is not a barrier to access to justice.

How does the Recast Regulation currently help injured claimants?

The Regulation deals with the rules of jurisdiction between EU Member States, setting out when a claimant’s home court will have the power to deal with their claim.

The Regulation also provides an effective means for claimants to enforce a judgment from the UK courts in other EU countries. This is essential if claimants are to actually obtain the compensation they have been awarded from a defendant based elsewhere in the EU.

Much has been said about the importance of the Recast Regulation to commercial parties, notably in relation to the effectiveness of choice of jurisdiction clauses in commercial contracts.

There is understandable concern that such clauses may have less clout following Brexit. Arguably more important, however, is the potential loss of rights granted by the Recast Regulation to weaker parties, including:

  • Direct action against insurers. Injured people can bring a claim directly against the insurer of the person/entity responsible for their accident, provided the direct right is permitted under the local law which applies in the case. In motor claims this right is enshrined in the European Motor Insurance Directives, which many will be alarmed to hear will also be lost on Brexit.
  • Consumer contracts. If an individual is injured while enjoying services provided as part of a contract, then they may have a claim for breach of contract. This claim can be brought in the individual’s home court if the other party has directed their services to the consumer in their home country. This will usually be the case if services such as a hotel or excursion are booked online using an English language website which the consumer accesses from their home country before travelling abroad.
  • Multiple party cases. Where there is a defendant based in the UK and another based elsewhere in the EU, the Regulation allows a claimant to bring the ‘foreign’ defendant into the English courts where there is a close connection between the claims against each defendant. This avoids the risk of irreconcilable judgments being given by the courts of two or more different countries.

What might replace the Recast Regulation?

The loss of the Recast Regulation is not a problem without a solution.

As long ago as November 2016 the Bar Council set out its proposals, favouring the adoption of a bi-lateral treaty between the UK and EU on jurisdiction and enforcement.

Another option is the UK becoming a party in its own right to the Lugano Convention – this will take time, so if this is the preferred option then it should be pursued without delay, and pursued in any event to maintain rules on jurisdiction and enforcement with Norway, Iceland and Switzerland.

Concluding thoughts

UK residents will continue to travel to the EU post-Brexit just as they have for the past 40 years or more since the UK first joined the EU.

The many thousands of EU nationals who have now made the UK their home will continue to travel to and from the EU to visit friends and family post-Brexit.

Business travel to the EU will also continue, maybe even increase with the relocation of major corporations to other parts of Europe from the City of London.

What happens to the Recast Regulation on Brexit is not just an issue for personal injury claimants, but of wider interest to commercial parties.

Personal injury claimants, however, arguably have much more to lose, particularly those who have sustained life-changing injuries.

The loss of the right by UK claimants to bring a claim for damages in their home courts, and thereafter to have an effective means of enforcing a judgment from the UK courts in the EU, are probably the two most important issues of concern for those who suffer injury while travelling in the EU post-Brexit.

While English law provides alternatives for seriously injured claimants who live here to pursue a claim in their home courts, those rules lack the certainty of the Recast Regulation.

Unless the Recast Regulation is replaced by an equivalent provision, there will be a vast detrimental impact to consumers and on UK taxpayers.

The UK government will be forced to pick up the bill for meeting the needs of those who are injured and unable to effectively enforce their rights to bring a claim against the individual/ entity responsible and their insurer.

It would be unrealistic to suppose the UK government does not have more pressing concerns on the Brexit agenda at the time of writing.

At the same time, urgent action is needed to ensure that the key provisions of the Recast Regulation are preserved, and that the rights of injured people do not fall off the edge of the Brexit cliff come March 2019.

This article first appeared in the January 2019 edition of PI Focus.