Aidan O’Neill QC
EU private international law
Clause 6(1) of the Withdrawal Bill, if enacted, will put an end to preliminary references from a UK court or tribunal. It provides as follows:
(1) A court or tribunal—
(a) is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and
(b) cannot refer any matter to the European Court on or after exit day.
This ban on references to Luxembourg, if carried through, will effectively mean the end of the UK’s participation in the uniform approach to private international law across the EU which has been the cornerstone of the ‘fifth freedom’ of the EU, namely the free movement of judgments which has been facilitated by such measures as: the recast Brussels I (EU) Regulation 1215/2012 on jurisdiction and recognition and enforcement of judgment in civil and commercial matters; the recast Insolvency Proceedings (EU) Regulation 2015/868; the Brussels II Regulation (EC) No 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility; and the Maintenance Obligations Regulation (EC) 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.
In AMT Futures Ltd v Marzillier, Dr Meier & Dr Guntner Rechtsanwaltsgesellschaft mbH, the Court applied the provisions of the original Brussels I (EC) Regulation 44/2001 to hold that the English courts had no jurisdiction to consider a claim for damages against a German defendant for wrongfully inducing breach of contract by facilitating the bringing of damages claims in Germany by former clients of the plaintiff, allegedly in breach of the clients’ agreement to submit such disputes to the exclusive jurisdiction of the English courts. The Court ruled that the relevant CJEU jurisprudence did not allow the grounds of jurisdiction in matters relating to a contract to be elided with those relating to tort. The inconvenience of separating the contractual and tortious claims was said to be the price of achieving the certainty and good administration across the EU at which the Brussels I Regulation was aimed in relation to court disputes concerning civil and commercial matters.
Post-Brexit, assuming the jurisdiction of the Court of Justice is indeed repudiated as provided for under the Withdrawal Bill, the UK courts will be free to ignore general Europe-wide considerations if so minded, and develop their own national approach. This would be at the undoubted cost to the civil justice cooperation across Europe of the type which is currently dealt with by private international law EU Regulations.
This is an excerpt from a chapter in Daniel Clarry (ed), The UK Supreme Court Yearbook, Volume 8: 2016-2017 Legal Year (Appellate Press 2017).
  UKSC 13,  2 WLR 853.