Ministers must act urgently on Brexit uncertainty: senior judge

“The common good urgently requires clarification of a number of issues in relation to Brexit”, the Lord Chief Justice of England & Wales has said in a speech.

Speaking at a dinner for the judiciary hosted by the Lord Mayor of London, Lord Thomas of Cwmgiedd demanded action from the UK Government to provide certainty in relation to jurisdiction and the enforcement of judgments after the UK leaves the European Union.

He made three points in particular:

• certainty was needed on applicable law, which could be achieved by incorporating the provisions of the Rome I and II Conventions on contractual obligations into English law;
• choice of jurisdiction clauses should be respected, which should be supported by the UK acceding as a contracting state to The Hague Convention on Choice of Court Agreements;
• and it was essential to work with the EU to ensure a simple and flexible regime for the mutual recognition and enforcement of judgments for the future.

Lord Thomas, who is about to retire from office, added: “Many months have elapsed since these points were made clear by the judiciary and the legal profession to Her Majesty’s Government. There is no reason for further delay. The common good and the national interest, demands no less than the clearest commitment by Her Majesty’s Government on these issues.”

He also called for the countering of rumours that Brexit would affect the certainty of English law as used in international commerce, and the standing of London as an international arbitration centre – neither of which were affected by EU law. “Such a perception is fuelled by our competitors for their own advantage”, he warned.

The judge further urged the speedy passage of the Courts Bill for England & Wales, announced in the Queen's Speech, which will pave the way for online courts south of the border, a bill which he said was “plainly needed”.

On this subject he was reflecting the views of Lord Neuberger, retiring President of the UK Supreme Court, who in another address last week said he was “firmly of the view that the resolution of disputes provided by the state should be proportionate to the issues involved”. Although online dispute resolution might lead to "more imperfect justice", he maintained that for cases concerning sums of money that meant quite a lot to the parties involved, but in respect of which the costs of a traditional trial would be wholly disproportionate, “The only solution is for the legal system to provide a dispute resolution mechanism which is cost effective, a system which is, to borrow an expression used by valuation accountants, quick and dirty. In a phrase imperfect, but accessible and affordable, justice: it’s better than no justice or absurdly over-priced justice.”

Admitting that he might make himself unpopular by saying so, the President added that if small claims had to go to a hearing, “then I suggest that there is much to be said for dispensing with the those two hallowed features of common law civil litigation, discovery and cross-examination”.

Click here to view Lord Thomas's speech.

Click here to view Lord Neuberger's speech.