The draft Service of Documents and Taking of Evidence in Civil and Commercial Matters (Revocation and Saving Provisions) (EU Exit) Regulations 2018
The UK Government has published a draft statutory instrument under the European Union (Withdrawal) Act 2018, which would revoke, so far as the UK is concerned, two important pieces of EU-derived legislation in relation to dispute resolution: the Service Regulation (Regulation EC No. 1393/2007) and the Taking of Evidence in Civil and Commercial Matters Regulation (1206/2001).
Pursuant to the terms of the EU (Withdrawal) Act, all EU-derived law will become part of domestic law, under the category of ‘retained EU law’. This is so as to provide continuity following Brexit as far as possible. However, in accordance with section 8 of the Act, Ministers may by regulations make such provision “as the Minister considers appropriate to prevent, remedy or mitigate (a) any failure of retained EU law to operate effectively (b) any other deficiency in retained EU law arising from the withdrawal of the United Kingdom from the EU.”
Under the Act, ‘deficiencies’ are defined as including instances where the Minister considers that the retained EU law contains anything which has no practical application in relation to the UK; relates to EU entities which no longer have functions in that respect under EU law in relation to the UK; or contains EU references which are no longer appropriate. However, it also applies where a particular piece of retained EU law is based on reciprocity.
The Service Regulation currently allows for English court proceedings to be served on defendants in other EU Member States and vice versa, by a variety of methods. Similarly, the Taking of Evidence in Civil and Commercial Matters Regulation provides an EU-wide framework for taking evidence to assist proceedings in another member state. However, both schemes are based on reciprocity and as such, there would be little benefit to the UK to retain them unilaterally.
Accordingly the draft statutory instrument provides that in effect, neither will become part of domestic law following Brexit.
Of course this does not prevent the parties reaching a new agreement to mirror the provisions of either scheme should this be achievable as part of the Brexit negotiations.
Finally, it is worth stressing that with regard to service of process in particular, even if no new agreement is reached, the absence of the Service Regulation should not cause an undue burden for well-advised parties, as set out in out earlier blog post. Rather, it provides an added incentive to include within agreements a contractual provision authorising service on a process agent at an address within England and Wales – something that prudent parties would do already.