«Brexit» and Lugano Convention: Impacts on Personal Injury Claims

4. Februar 2021

On 31 January 2020, the United Kingdom left the European Union. After a transition period, the parties recently agreed on a Trade and Cooperation Agreement which has been effective since 1 January 2021. For European litigation lawyers who deal with cross border cases, an interesting topic in the course of “Brexit” has been whether the Lugano Convention will remain in force between the UK, the EU and the rest of the European Countries which are member states of the Convention. Read here about the current status.

According to Art. 129 of the Withdrawal Agreement between the EU and the UK, the Lugano Convention remained in force during the transition period. Therefore and as no other agreements have been entered into after the transition period ended, the Lugano Convention has not been applicable since the beginning of this year. As a result, the previous member states, among them also Switzerland, currently apply their own law in relation to jurisdiction, the recognition and enforcement of judgments in civil and commercial matters.

As far as personal injury matters are concerned, this will be especially relevant with regard to claims against insurances if a party from the UK is involved. According to Art. 9 and Art. 11 of the Lugano Convention, the insured person can file a claim against the foreign insurer at the place where the insured person is domiciled. This also applies to lawsuits of victims of road traffic accidents against the foreign liability insurance as per the famous Odenbreit doctrine of the European Court of Justice.

The latter was a very important application case in the daily business and a big advantage for the injured persons. For example, an English person having a road traffic accident in Switzerland caused by a Swiss car could file a claim against the Swiss insurer before an English court and vice versa.

Further, according to a general and very important provision of the Lugano Convention, a judgment given in a State bound by the Lugano Convention shall be recognised in the other States bound by the Convention without any special procedure being required.

With the Lugano Convention no longer being applied in relation to the UK, it has to be assessed based on the individual (international) procedural law of the country where the claim is filed whether the court has jurisdiction or whether a decision can be recognised. According to the international private law of Switzerland, a Swiss court at the residency of a Swiss victim of a road traffic accident which occured in England would not be competent to asses a claim against the English liability insurance. Likewise, a judgement of an English court against a Swiss liability insurer in relation to a road traffic accident in Switzerland would no longer be enforceable in Switzerland.

Considering those disadvantages, personal injury victims have to hope that the UK will rejoin the Lugano Convention at a later point in time.