‘No deal’ Brexit could present “systemic risk” to UK law

Supreme Court: Many judgments refer to EU law

Up to half of Supreme Court rulings refer to EU law and over 12% of all UK case law will be put at risk by the uncertainty following a ‘no deal’ Brexit, according to an analysis.

Defendants’ willingness to settle could be harmed by the uncertainty, the authors said.

Attempting to quantify the legal risk of Brexit, London-based predictive analytics start-up CourtQuant – which uses big data to tell litigants how likely they are to win a case with a particular lawyer – analysed 300,000 cases at different levels of the courts system.

The data showed that in the event of no deal, with EU law no longer effective, some 1.2% of “substantive judicial decision making” would be invalid and 12.2% of UK case law would be at risk.

CourtQuant used machine-learning to discover “how pervasive EU law is in British case law”. It said the results gave “a good indication of legal uncertainty” in the case of no deal.

It also found that between 40% and 50% of Supreme Court judgments contained references to EU law. This amounted to “a systemic risk”.

High Court judgments tended to reference the EU less than 20% of the time, with the Court of Appeal and other courts doing so less often.

The authors, chief technology officer Ludwig Bull and consultant Alex Jost, pointed out that while strong measurements existed for financial markets and the economy, the impact of a hard Brexit on law was less well known.

Speaking to Legal Futures, Mr Jost said: “The invalidation of EU law cuts a big chunk out of the available legal devices for claimants and their counsel.

“We expect the environment to become less claimant-friendly in such a scenario, and potentially settlement rates will decrease because of increasing uncertainty.”

He admitted that analysing trial data alone did not necessarily reflect the impact of EU law disputes which settled and that, if he had to guess, legal practice generally would be affected even more by a ‘no deal’ scenario.

Further questions emerging from the analysis included how no deal “would affect claimant win rates, or settlement rates generally”

The analysis concluded: “In case of a ‘no deal’ Brexit and the falling away of EU law, a large body of case law which British courts have referred to in the past will no longer be valid. This leaves a regulatory ‘gap’ that poses uncertainty and risk to litigants in areas where EU law previously provided guidance…

“This is the percentage of referenceable and partially precedential case law that in the case of a hard Brexit at the very least contains an inconsistency but may be invalid altogether…

“Measuring the substantive legal impact of a hard Brexit is difficult. Looking to the absolute number of regulations promulgated by the EU in comparison to the UK parliament, so often referenced by Brexiteers, is not a good reflection of the power EU law has had in the British legal system because it is difficult to weigh the relative significance of individual pieces of legislation.”

  • Mr Bull is speaking at the Legal Futures Civil Litigation Conference on 19 March in London, in a session entitled Can robots help you win your case? Click here for all the details.


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