Legal Abroad

Recognition and enforcement of UK judgments in Italy in Personal Injury claims after Brexit

Introduction

Among its multiple negative effects on the rights of the citizens in general, and the rights of personal injury victims in particular, Brexit has had a deep negative impact on the recognition and enforcement of English judgements in the Member States of the European Union.

To date (February 2024), there is a serious level of uncertainty regarding the procedural instruments that may be applied for the recognition and the enforcement of a UK judgement in an EU Member State. As stated infra at § 7, on 12nd of January 2024 the UK  Government signed up to the Hague 2019 Convention, which will come into force 12 months after ratification and will apply to judgment in proceedings started after that day; although the Convention may be a positive starting point to fill the gaps left by Brexit, it presents limits and exclusions from its scope which could limit its application to serious personal injury cases for the purposes of filling the holes of protection originated by Brexit with the abandonment of the system centred on the principles and rules provided by Council Regulation (EC) no 44/2001 as amended by Brussel I-bis Regulation. Hence, the Hague 19 Convention would not seem to be the right and full answer to the issue of recognition and enforcement of decisions in cross-border claims.

This contribution will address these relevant issues by focusing on the interactions between the UK judicial systems and the Italian one, whenever a judgement rendered in England & Wales, Scotland or Northern Ireland, in relation to a personal injury or fatal accident claim, has to be enforced in Italy. Logically, any risk connected with the enforcement of such UK judgment in Italy should be carefully dealt with when addressing the issue of jurisdiction, and whether it would be advisable to sue in Italy instead of in UK.

 

Before Brexit

Until the 1st of January 2021, according to the Regulation (EU) No 1215/2012 on jurisdiction, and the recognition and enforcement of judgments in civil and commercial matters as well as pursuant to the principle of mutual recognition of judicial and extrajudicial decisions in such matters, a judgment rendered in the UK was recognised in Italy without any special procedure being required; moreover, a judgment rendered in the UK which was enforceable there, was enforceable in Italy without any declaration of enforceability being required, this without prejudice to the possibility of applying for the rejection of its enforcement.

 

Post-Brexit

Following Brexit, and in the absence of any solution agreed by the European Union and the Great Britain, the UK has unfortunately become, to all intents and purposes, a “third State” falling outside the EU legal system, with the consequence that relationships in this area will now be governed by the respective national laws, possibly supplemented by international conventions binding the UK on the one hand and EU and/or individual Member States on the other hand.

In particular, according to Article 67 of the Withdrawal Agreement entered into force on 1st February 2020, after being agreed on 17 October 2019, the principles and rules provided by Regulation (EU) No 1215/2012 are still applicable only to the recognition and enforcement of judgments rendered in legal proceedings instituted before the end of the transition period. The same rule applies to authentic instruments formally drawn up or registered, as well as court settlements approved or concluded before the end of the transition period: «In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, in respect of legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to such legal proceedings pursuant to Articles 29, 30 and 31 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council1, Article 19 of Regulation (EC) No 2201/2003 or Articles 12 and 13 of Council Regulation (EC) No 4/20092, the following acts or provisions shall apply: (a) the provisions regarding jurisdiction of Regulation (EU) No 1215/2012; […..] 2. In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, the following acts or provisions shall apply as follows in respect of the recognition and enforcement of judgments, decisions, authentic instruments, court settlements and agreements: (a) Regulation (EU) No 1215/2012 shall apply to the recognition and enforcement of judgments given in legal proceedings instituted before the end of the transition period, and to authentic instruments formally drawn up or registered and court settlements approved or concluded before the end of the transition period».

Therefore, only the final judgments given in UK in proceedings issued before 31st December 2020 shall be fully effective in Italy in accordance with the EU regime.

The situation is different with regard to the recognition and enforcement in Italy of UK judgments rendered in judicial proceedings commenced after the 1st of January 2021.

As to this second category of judgements, the likely scenarios have to be scrutinized by first examining the multilateral and bilateral international conventions binding Italy in respect of the UK.

 

The international conventions: no solution

Besides the Hague 2019 Convention, the international conventions that are in force nowadays (January 2024), and are relevant for the Italian legal system too, do not provide any rule easing the recognition and enforcement in Italy of UK judgments occurred in court proceedings commenced after the 1st of January 2021.

 

  • The Hague Choice of Court Convention (2005).

Both the EU and the UK are contracting parties to the Hague Convention 2005 (Convention on choice of court agreements), which has been in force in the EU since the 1st of January 2005; the UK joined in on the 28th of September 2020 with effect from the 1st of January 2021.

This Convention provides the exclusive choice of court agreements (Article 5, paragraph 2), as well as provisions on the recognition and enforcement of judgments rendered by a court of a Contracting State, designated in an exclusive choice of court agreement (Articles 8 and 9).

This Convention, however, has a limited scope of application. First of all, it applies in relation to an “international case” only (a case is international unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected  with that State only) whenever an exclusive choice of court agreement has been concluded: it is therefore essential that the exclusive choice of court agreement must be concluded or documented in writing or by any other means of communication which renders the information accessible so as to be usable for subsequent reference.

In addition, the Convention does not apply in relation to a wide range of areas (e.g.  contracts where one party is a consumer, claims for personal injury brought by or on behalf of natural person, contracts of employment, family law matters, wills and succession, insolvency, the carriage of passengers and goods, intellectual property).

Conclusively, the 2005 Hague Convention is not far reaching, being its subject limited to exclusive choice of court agreements as well as to a breadth of situations and matters excluded from its scope of application; it may constitute an instrument capable of making a concrete contribution in terms of predictability of transnational legal situations in relations between the United Kingdom and the Italy, but this has clearly nothing to do with the vast majority of personal injury cases, if not all of them.

 

  • The Convention between the UK and Italy for the reciprocal recognition and enforcement of judgments in civil and commercial matters (1964) and the Amending Protocol (1970).

One may argue that the pre-Brussels Convention/Regulations bilateral treaties for the reciprocal recognition and enforcement of judgments in civil matters between the UK with some EU Member States, (including Italy), should automatically revive, this with the consequence of filling the gap left by the “Brussels-Lugano regime” in the relationships between the UK and the Member States.

In particular, among some Italian academics, there is an open debate about the possible application of the pre-existing bilateral treaty between UK and Italy, the Convention between the United Kingdom of Great Britain and Northern Ireland and the Republic of Italy for the reciprocal recognition and enforcement of judgments in civil and commercial matters, signed in Rome on the 7th of February 1964, and the subsequent Protocol amending such Convention, signed in Rome on the 14th of July 1970, both implemented in Italy by the law 18 May 1971 no. 280 (“Ratifica ed esecuzione della convenzione tra l’Italia e la Gran Bretagna sul riconoscimento e l’esecuzione delle decisioni giudiziarie in materia civile e commerciale e del protocollo di emendamento, conclusi a Roma rispettivamente il 7 febbraio 1964 ed il 14 luglio 1970”).

Under this bilateral convention, the word «judgment» means any decision of a court – judgment, order and the like – which is final and conclusive between the parties thereto notwithstanding that it may still be subject to appeal (Art. I, para 2).

According to Article II, the Convention applies to judgments in civil and commercial matters, rendered by the following courts:

  • in the case of the United Kingdom, the House of Lords; for England and Wales, the Supreme Court of Judicature (Court of Appeal and High Court of Justice) and the Courts of Chancery of the Counties Palatine of Lancaster and Durham; for Scotland, the Court of Session and the Sheriff Court; and for Northern Ireland, the Supreme Court of Judicature;
  • in the case of Italy, Corte d’Appello (Court of Appeal) and Tribunale (court of first instance); singularly, there is not any mention to the Italian Supreme Court (Corte Suprema di Cassazione).

As to the recognition of judgments, Article III considers the automatic recognition of all civil claims except in the cases specifically listed in the same article, and namely:

  • when the jurisdiction of the original court is not recognized under the provisions of the Convention[1];
  • the judgment was given by default and the judgment debtor, being the defendant in the proceedings in the original court, did not receive notice of those proceedings in sufficient time to enable him to defend the proceedings;
  • the judgment was obtained by fraud;
  • the recognition of the judgment would be contrary to public policy in the country of the court applied to;
  • the judgment debtor, being a defendant in the original proceedings, was a person who, in the opinion of the court applied to, was entitled under the rules of public international law to immunity from the jurisdiction of the original court and did not submit to the jurisdiction of that court; or the judgment debtor, in the opinion of the court applied to, is entitled under the rules of public international law to immunity from the jurisdiction of that court at the time of application for registration or for a “dichiarazione di efficacia” (declaration of enforceability);
  • the judgment debtor satisfies the court applied to that proceedings by way of appeal have been instituted against the judgment in the country of the original court.

As to the enforcement, according to Article V of the Convention judgments in civil and commercial matters, rendered in the territory of one High Contracting Party, it shall be enforced in the territory of the other High Contracting Party in the manner provided in Articles VII, VII and VIII of the Convention provided that: none of the objections to the recognition of the judgment, set out in Article III (read in conjunction with Article IV), can be established; they could be enforced by execution in the country of the original court; the judgment is an order to pay a sum of money; the judgment debt has not been wholly satisfied.

A judgment in respect of which a certified copy has been issued by the original court shall, in the absence of proof to the contrary, be deemed worthy of enforcement by execution in the country of the original court; as a consequence:

  • in order to enforce a judgment of an Italian Court in the UK, an application by a judgment creditor for its registration, accompanied by a certified copy of the judgment by the original court – bearing the executory formula -, should be made: (a) to the High Court of Justice in England and Wales, (b) to the Court of Session in Scotland, and (c) to the Supreme Court of Judicature in Northern Ireland; in accordance with the procedure of the court applied to. If such application is made in respect of a judgment fulfilling the conditions laid down in Article V of the Convention, registration shall be granted;
  • as to the enforcement of a UK judgment in Italy, an application by a judgment creditor for the grant of a dichiarazione di efficacia should, in accordance with the procedure of the court applied to, be filed to the Corte d’Appello (Court of Appeal) in whose jurisdiction the judgment is to be enforced. Such application should be accompanied by a certified copy of the judgment issued by the original court. If such application is made in respect of a judgment fulfilling the conditions laid down in Article V of the Convention, a dichiarazione di efficacia shall be granted.

This Convention was superseded by the Brussel Convention, when it took effect in UK from 1987, and subsequently by the EU rules (Brussel I Regulation and Brussel I-bis Regulation).

The majority of Italian academics, who have addressed this scenario, have ruled out the possibility that, following Brexit and the expiry of the effectiveness of the Brussel Regulations in the UK, the above bilateral Convention could be revived: the argument is that according to Article 69 of the Brussel I-bis Regulation, the previous conventions that cover the same matters as those to which the Brussel I-bis Regulation applies – which are included in the list established by the Commission pursuant to point (c) of Article 76(1) and Article 76(2) – were superseded by the EU provisions. The Convention between UK and Italy (1964) and the Amending Protocol (1970) are included in the above list.

The same provision is contained in the Council Regulation (EC) no 44/2001 (Art. 69 and 70 (1)).

According to Brussel I Regulation (Art. 70) and Brussel I-bis Regulation (Art. 70), the Convention between UK and Italy (1964) and the Amending Protocol (1970) could and shall continue to have effect solely in relation to matters to which the above Regulations do not apply.

Could the 1964 Convention be revitalized by way of a renewal of the will of Italy and UK?

This unlikely scenario seems incompatible with the conclusion reached by the European Court of Justice in its Opinion 1/03 of 7th February 2006 (“Competence of the Community to conclude the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters”) concerning the exclusive competence of the Union to conclude agreements with third States in these fields. In particular, as stated by the Court at § 172-173, « the Community rules on the recognition and enforcement of judgments are indissociable from those on the jurisdiction of courts, with which they form a unified and coherent system, and that the new Lugano Convention would affect the uniform and consistent application of the Community rules as regards both the jurisdiction of courts and the recognition and enforcement of judgments and the proper functioning of the unified system established by those rules. It follows from all those considerations that the Community has exclusive competence to conclude the new Lugano Convention».

 

The Italian rules of international procedural law set out in Law 218 of 31st May 1995

Since neither the 2005 Hague Convention, nor the 1964 Italy/UK Bilateral Convention, nor any other (international or bilateral) conventional instrument provide for a solution to the dilemma here under scrutiny, the matter has to be dealt with the national law applying to the recognition and enforcement of “foreign judgments” , falling out the scope of the Regulation (EU) No 1215/2012, and now – since Brexit – including the UK judgements to be executed in Italy and rendered in judicial proceedings commenced after the 1st of January 2021. Such internal statutory instrument has to be found in Law No 218 of 31st May 1995 (Reform of the Italian system of private international law), which constituted and still is the reference for all issues concerning the recognition and enforcement of judgments rendered by States not belonging to the European Union.

According to Law No 218/1995 the recognition and enforcement of a UK judgment in Italy would be exposed to a special procedure, which is complex and time-consuming as it involves the verification of a larger number of requirements.

In particular, on one hand, it is true that pursuant to Law No 218 of 1995 a foreign judgment would be automatically recognised in Italy without the need for further proceedings.

On the other hand, such automatic recognition can be challenged on the ground of the foreign judgment’s failure to comply with any of the following requirements set out in Article 64 of the said law:

  • first of all, the foreign court that rendered the judgment had to be entitled to decide the case according to the Italian principles and rules on jurisdiction (as provided by Law No 218 of 1995 itself and – according to Article 3, para. 2, of this law – by Sections 2, 3 and 4 of 1968 Brussels Convention and its following amendments); accordingly, the Italian judge has to establish whether the UK jurisdiction satisfies the jurisdictional criteria provided by Articles 3 and 4 of the Law No 218/1995, or the Brussels criteria, with the consequence that a foreign judgment shall be recognized only if the defendant was domiciled in the foreign country where the court rendered the judgment, or the defendant accepted the jurisdiction of the foreign court in writing, or he submitted to the jurisdiction of that court by voluntarily appearing in the proceedings upon the merits without challenging jurisdiction; this requirement seems to be the first and main obstacle to future recognition/enforcement of UK judgments rendered against defendants domiciled in Italy, even though there may be some exceptions according to Brussels regulations as subsequently amended; one should also consider that, under both Law No 218 of 1995 and Brussels Convention/Regulations, forum non conveniens does not constitute a valid ground for establishing jurisdiction, hence the Italian judge would never accept as an argument enabling enforcement of UK judgment that it was “convenient” to address the UK injured party’s claim in his/her home jurisdiction, due to the fact that the consequences of the injuries take place there;
  • the writ of summons that instituted the court proceedings was brought to the knowledge of the defendant in accordance with the law of the place where the proceedings took place and the defendant’s essential rights of defence were not violated; this requirement concerns the essential core of the right to the defence, including several aspects, namely: the notification to the defendant of the commencement of the proceedings in a manner adequate to enable him to assert his rights, the guarantee of cross-examination, the right of the parties to be heard by the judge and to provide evidence, the right of the parties to be assisted by a counsel, the right to a proper time limit for filing appeals;
  • the parties entered an appearance in court in accordance with the law of the place where the proceedings took place or the default was declared in accordance with that law: this in accordance with the principle of procedural equality, focused on the moment of the parties’ participation in the proceedings;
  • the judgment has become res judicata according to the law of the place where it was rendered: the concept of res judicata – which has to be established in the light of the requirements of the foreign law – is an essential aspect of the above provision, emphasising the finality of the ruling of the foreign dispute;
  • it is not contrary to another judgment delivered by an Italian court that has become res judicata: this provision aims to avoid any conflict among res judicata;
  • there are no proceedings pending before an Italian court on the same subject-matter and between the same parties, which commenced before the foreign trial; the commencement of identical proceedings before an Italian court is relevant in order to deny recognition only when the domestic proceedings commenced before the commencement of the foreign proceedings;
  • its provisions do not produce effects contrary to public order: the limit of public order aims to the protection of the fundamental principles and rights which the legal system is based on (moral, political, social and legal principles/rights); this provision may have a considerable impact in the area of personal injury and fatal accidents since, under Italian case-law, foreign laws denying or restricting the primary and secondary victims’ right to full compensation for pecuniary and non-pecuniary losses can also be challenged as contrary to the national public order (for example, the serious restrictions provided in England & Wales by the Fatal Accident Act 1976 against the family members’ right to claim for their own bereavement damages may be declared by an Italian court has being contrary to the Italian public order, as explained in M. Bona, Disapplication of Austrian Law Denying Compensation for Bereavement Damages: A Judgment by Italian Supreme Court on the Notion of “Public Policy” (2015) 26 European Business Law Review, Issue 4, pp. 509-529).

To challenge the automatic recognition, a special judicial procedure – set forth in Article 67 of Law 218/1995 – applies, and it has to be instituted before the competent Court of Appeal; this procedure aims to the verification of the existence or non-existence of the above requirements provided by Article 64.

Similarly, a procedure before the competent Court of Appeal is necessary in order to enforce the foreign judgment: the claimant who aims to enforce a foreign decision in Italy shall file an application to the Court of Appeal of the place of enforcement, requesting the establishment of the recognition of the decision; according to Article 67, para 2, of Law 218/1995, the foreign judgment, together with the order granting such application, constitutes legal title for the enforcement of the foreign judgment in Italy.

 

The enforcement of a “Brownlie decision” in Italy

As stated above, it is in the light of the said requirements provided by Law No 218 of 1995 that the chances of a UK judgments to be recognised and enforced in Italy have to be assessed.

The Brownlie decision [FS Cairo (Nile Plaza) LLC v Lady Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) [2021] ] opened the possibility that, when the effects of injuries or the financial consequences of an accident occurred abroad are sustained in the UK after the victim’s return home, the UK courts could have jurisdiction to deal with claims arising from that accident: under the tort gateway, the victim of a serious accident overseas could be entitled to bring a claim in their home courts in UK, since the interpretation of the concept of damage (pain and suffering or ongoing and future financial losses) is as wide  to establish that the damage is being sustained in the jurisdiction of England and Wales.

The issue to be here scrutinized is whether a judgment rendered in UK in accordance with the principles set out in the Brownlie case would be recognised and enforceable by an Italian court.

Pursuant of Law No 218 of 1995 the automatic recognition and subsequent enforcement of such a UK judgment may be positively challenged on the ground that it would not comply with some of the requirements set out by Article 64. In particular, as already explained above at § 5 (point a), one may successfully oppose recognition/enforcement of a UK judgment based on Brownlie,  in relation to an accident occurred in Italy to an English resident, by arguing that the claim giving rise to this judgment could not have been issued before the UK court, this according to the Italian rules on jurisdiction that are focused on the domicile of the defendant and conceive the “place where the damage occurred” as the “place where the harmful event  occurred” (this similarly to the Court of Justice’s case law). Moreover, any reasoning based on forum non conveniens within a UK judgement, like the one here under scrutiny, may be viewed by Italian courts as being contrary to the public order.

The UK judgment rendered according to Brownlie extended British jurisdiction, therefore, would likely be neither recognised nor enforceable in Italy, this according to the domestic rules on private international law.

One may ask whether Article 5 (1) of Regulation (EU) No 1215/2012 – providing, like previous Article 3 (1) of Council Regulation (EC) No 44/2001, that persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of Chapter II (Jurisdiction) – can enable the Italian judge – according to Article 3, para. 2, of Law No 218/1995 – to establish UK jurisdiction for the purpose of enforcing a judgment rendered in UK against an Italian insurer sued on the ground of the right to direct action. In fact, the above Article 5 (1) of Regulation (EU) No 1215/2012 may be relevant to the Italian judge for assessing the first requirement enabling recognition and enforcement of foreign judgments; nevertheless, the rule provided by Article 5 (1) expressly refers to the issue of the claim in another Member State. This means that the right to direct action under Section 3 (“Jurisdiction in matters relating to insurance”) would not be relevant for the purpose of enabling a UK resident injured in Italy by an Italian driver to issue proceedings in UK – a non/Member State – against the Italian insurer of that driver. Accordingly, under Law No. 218/1995 (and the reference to Brussels rules) it would not be possible to establish UK jurisdiction in relation to the direct action against the insurer of the liable party whenever such action is granted by Italian law.

In the light of the above remarks, is there any solution granting UK citizens injured in Italy and more in general in EU with the possibility of acceding to an effective remedy before their domestic courts without any need to enforce judgments abroad?

Given the scenarios under Brownlie case-law and forum non conveniens enabling the establishment of UK jurisdiction in relation to accidents occurred in EU Member States, one should examine whether, if the Italian defendant sued in UK have assets in such jurisdiction, it would be possible, according to UK law, to bypass the obstacle of recognition/enforcement of UK judgments abroad by enforcing the judgment in UK by seizing the assets available in UK. This is clearly an issue for UK lawyers to be addressed.

 

What’s next?

In the next future a possible solution to overcome the gaps that Brexit has created in recognizing and enforcing UK decisions in continental Europe for cross-border injury victims could be found in The Hague Judgments Convention 2019, which establishes a simplified regime for the circulation of foreign judgments, and which may constitute a form of supranational integration in the context of private international law.

On the 29th of August 2022, the European Union joined the Hague Convention 2019 (“Convention on the recognition and enforcement of foreign judgments in civil or commercial matters”), which came into force on the 1rst of September 2023.

The UK government, considering joining the above Convention, on 15 December 2022, published the consultation paper Consultation on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matter, which closed on 9 February 2023; the consultation sought views on plans for the UK to become a Contracting Party to Hague 2019 by ratifying the Convention and implementing it into domestic law.

On 23rd of November 2023, the UK Government, publishing the response to the consultation paper, concluded that «it is the right time for the UK to join Hague 2019 and will seek to do so as soon as practicable». On 12nd of January 2024, the UK Government has signed up to the Hague 19 Convention: it will come into force 12 months after ratification and will apply to judgments in proceedings started after that day.

The Convention aims to promote effective access to justice for all and to facilitate rule-based multilateral trade and investment, as well as mobility, through judicial co-operation; for this purpose, the Convention created a uniform set of core rules on recognition and enforcement of foreign judgments in civil or commercial matters, in order to facilitate the effective recognition and enforcement of such judgments.

According to the 2019 Hague Convention, a judgment rendered by a court of a Contracting State may be recognised and enforced in a different Contracting State, provided that this court has jurisdiction on the basis of one of the jurisdictional filters set out in the list in Article 5.

Although, differently from the Brussels regulations, the Convention does not provide for a proper set of direct jurisdictional rules in cross border civil and commercial cases, it contains, even though for the different purposes of recognition/enforcement, some clear principles on jurisdiction and would ensure an international framework for the recognition and enforcement of judgments in civil and commercial matters.

The Convention has certain limitations and exclusions (it concerns civil and commercial matters only).

In particular, with regard to personal injury and fatal accident cases, the following issues may arise in connection with the application of the Convention:

  • according to Article 5.j a judgment is eligible for recognition and enforcement if «the judgment ruled on a non-contractual obligation arising from death, physical injury, damage to or loss of tangible property, and the act or omission directly causing such harm occurred in the State of origin, irrespective of where that harm occurred»: this provision, which is based on the “locus commissi delicti” approach, may have a relevant impact on the claims issued in UK, based on the UK Supreme Court’s decision in Brownlie case, since the Convention requires that the act or omission must have occurred in the State of origin of the judgment; as a consequence, a judgment rendered in UK relying on UK jurisdiction according to Brownlie decision, would likely remain not enforceable under the 2019 Hague Convention; this unless the defendant is based in UK (see Article 5.a providing for the requirement that «the person against whom recognition or enforcement is sought was habitually resident in the State of origin at the time that person became a party to the proceedings in the court of origin»). Clearly, under Article 5.j, there would also be opposite views as to whether any harm can be deemed to be directly caused by the act or omission (Article 5.j): for example, the loss of a relative may be conceived by some Member States as an indirect damage and, therefore, the respective English judgment may not be enforceable under the 2019 Hague Convention;
  • a similar approach could be found in relation to contractual obligations: Article 5.g identifies the “place of performance” as central;
  • the recognition and enforcement may be refused if they are manifestly incompatible with the public policy of the requested State (article 7.c): f.i., an English judgment rendered in a fatal accident case awarding non-pecuniary damages to some secondary victims only, and not considering other categories of claimants entitled to compensation according to Italian system (f.i. siblings, grandparents, etc.) would likely not be recognised and enforceable in Italy as it would be incompatible with the Italian public order;
  • the recognition and enforcement may also be refused if the judgment awards damages that do not compensate a party for actual loss or harm suffered (Article 10, «Damages»: « Recognition or enforcement of a judgment may be refused if, and to the extent that, the judgment awards damages, including exemplary or punitive damages, that do not compensate a party for actual loss or harm suffered. 2. The court addressed shall take into account whether and to what extent the damages awarded by the court of origin serve to cover costs and expenses relating to the proceedings»).

The UK joining the Convention would provide a set of common rules for the recognition and enforcement of judgments between the UK and the EU; it would not, however, provide a complete substitute to the EU regime.

Accordingly, the conclusion raised above and based on Law No 218 of 1995 would not change after the entry into force of 2019 Hague Convention signed and ratified by UK: a judgment, rendered in UK relying on British jurisdiction according to Brownlie decision, would likely be not enforceable under this Convention. As a consequence, UK judgments will likely have to rely on the Italian procedural/domestic law to be enforced in Italy, and, as already examined above, there would be small chances, if any at all, for recognition/enforcement.

 

Conclusion

In the light of such uncertainty in the matter of recognition and enforcement of judgments between the UK and the Italy, UK victims injured or killed in Italy will need to be extremely cautious in relying on their home jurisdiction: a judgment rendered in UK in relation to a cross-border case like this one would likely not be enforceable in Italy according to either Law No 218 of 1995 and 2019 Hague Convention, this with the exception of at least one defendant being domiciled in UK.

 

[1] Pursuant to Article IV of the Convention, the original court shall be recognized as possessing jurisdiction in the following cases: «(a) where the judgment debtor, being a defendant in the proceedings in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings upon the merits and not only for the purpose of protecting, or obtaining the release of, property seized, or threatened with seizure, in the proceedings, or of contesting the jurisdiction of that court; or (b) where the judgment debtor was plaintiff in, or couterclaimed in, the proceedings in the original court; or (c) where in a matter relating to contract the judgment debtor, being a defendant in the proceedings in the original court, had before the commencement of the proceedings agreed in the for required by the law of the country of the original court to submit himself in respect of the subject matter of the proceedings to the jurisdiction of the courts of the country of the original court; or (d) where the judgment debtor, being a defendant in the original court, was, at the time when the proceedings were instituted, resident in, or being a body corporate had its registered or head office in, the country of that court; or (e) where the judgment debtor, being a defendant in the original court, had an office or place of business in the country of that court and the proceedings in that court were in respect of a transaction effected through or at the office or place».