The Impact Of Brexit On Personal Injury Claims – Rail Travel & Product Liability

One of the most talked about issues in the UK over the last few years, prior to the COVID-19 pandemic, has been Brexit. As you are most likely already aware, the UK formally left the European Union on 31^st January 2021 after 47 years of membership. A large amount of UK law has come from the EU over those years so we are left wondering what exactly will change. The main areas that people have expressed concern about are immigration, travel and trade, employment laws, however, the impact Brexit may have on personal injury claims is also worth considering.

Personal injury claims following Brexit

The two main amendments that have affected personal injury claims are in the areas of:

• Rail travel; and
• Product liability.

In respect of rail travel, we may have taken for granted that if anything goes wrong when we travel, we will most likely be able to get some form of compensation. However, since leaving the EU, the compensation available to rail passengers within the EU under The Rail Passengers’ Rights and Obligations Regulations 2010 regarding personal injury, lost luggage, delays, cancellations and mobility assistance has now been restricted to train journeys within the UK only.

Turning to product liability claims, amendments to the Consumer Protection Act 1987, as a result of Brexit Regulations, mean that the scope of who is considered an importer has changed. Previously, an importer was defined as someone importing a product into the EU. Now, an importer is defined as someone importing a product into the UK.

Companies importing goods into the UK from the EU face an additional potential liability for claims by those injured by a defective product. It is also now possible to sue the UK distributor of those products within UK Courts and the service of Court papers is easier. If there are concerns over the EU seller’s ability to pay the damages claimed, then taking legal action against a UK distributor may be an attractive alternative to a consumer.

However, whilst this seems like a positive change, the Brexit Regulations do reduce the UK consumer’s ability to sue a company based in the EU.

Additionally, one of the biggest changes brought about by Brexit will be what we can do if we get injured whilst in an EU country, now that the Brussels Regime no longer applies and, therefore, common law principles apply, which affords us much less certainty and protection.

Lugano Convention

Given this uncertainty, the UK applied to join the Lugano Convention in April 2020. The Lugano Convention is a similar framework to the Brussels Regime, however, this application requires unanimous consent from all parties, including the EU, and whilst some countries have supported the application, the EU has not. This position is not final and will be subject to further review over the coming weeks.

There is another international instrument that might be of assistance – the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. This is currently in the pipeline but it would establish an international framework for the recognition and enforcement of judgments. However, the ratification process will most likely take a number of years, so while this may assist in the future, it does not assist parties facing litigation in the short to medium-term.