With less than 6 weeks remaining, time is running out to enforce obtained judgments under Recast.
This article is based on the assumption that the UK will leave the European Union on 31 October 2019 ("exit day") without a deal. Those Member States forming the European Union after exit day are referred to as "EU27".
With 6 weeks remaining until the UK is due to leave the European Union, the prospects of immediate and sweeping changes to longstanding agreements in the event of no-deal become ever more apparent.
We have recently written extensively on the expected issues in respect of enforcement of judgments obtained in proceedings commenced after exit day (or the expiry of any Transition Period).
But what of those judgments already obtained in the English courts where enforcement is sought in a EU27 Court?
There is the prospect of some debtors in EU27 Member States, including European insurers, taking the view that there may be value in waiting out paying creditors holding English judgments until after 31 October 2019. At that stage, they will be able to consider creditor appetite for enforcing judgments should the insurer not pay, and the creditors faced with new obstacles.
However, such a strategy is not risk-free for those insurers.
Should a Withdrawal Agreement be agreed (followed by the accompanying Transition Period) or an extension to Article 50 be agreed then those judgments may be still enforced as currently (see below); the UK's departure would effectively be suspended until the end of the relevant period.
If the UK does leave without a deal, these judgments remain enforceable, they will simply be subject to the contingency position of creditors relying on EU27 Member State's national enforcement rules.
For those insurer debtors who are looking to wait, they may be subject to the additional costs incurred by the creditor in taking those additional steps to enforce, and we would recommend they seek advice on the implications of this.
What is the position now?
Currently, those creditors who obtain an enforceable judgment in the English courts will be able to enforce it in EU27 Member States and vice versa. The system of judicial co-operation provided for by the Recast Brussels Regulation, states:
"A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared...