Stopping the Clock – Limitation in Foreign Law Claims
Daniel Clarke explores the scope of the Rome II Regulation as laid out in Pandya v Intersalonika General Insurance Company.
In Pandya v Intersalonika  EWHC 273 (QB) the High Court has given an important decision on the extent to which, in case where a foreign law applies, it is the foreign law (as opposed to English domestic law) which determines the limitation issues.
The facts in Pandya were, as in so many cases, very sad. The English-domiciled claimant was just fifteen when on 29 July 2012 she was hit by a motorcycle while crossing the road on holiday in Greece, suffering a serious brain injury. A claim was brought (on her behalf) directly against the motorcyclist’s Greek motor insurer. The English court received the claim form on 25 July 2017. It issued the claim on 11 August 2017. Proceedings were later served on the defendant on 26 January 2018.
Different jurisdictions, different limitations
The defendant pleaded that the claim was time-barred. The parties agreed that Greek law governed the claim and, therefore, limitation. They also agreed that, according to the Greek Civil Code, the limitation period was five years (in this case expiring on 31 July 2017) and it was the “bringing” of a claim that interrupted limitation.
The parties disagreed as to whether, for limitation purposes, the claimant needed to have complied with the English or Greek rules for bringing a claim. According to the English rules, the claim had been brought in time since the court had received the claim form on 25 July 2017. By contrast, bringing a claim in Greece required two acts – filing and serving. The defendant had not been served until nearly 6 months after limitation had expired.
The claimant submitted that this was a matter of procedure (evidenced by the fact that the Greek rules on bringing a claim were contained in the Greek Code of Civil Procedure). By virtue of Article 1.3 of Rome II, it was to be determined in accordance with English law as the law of the forum. The defendant contended that the requirement for filing and service of the claim was a substantive rule of the Greek law of limitation falling within Article 15(h) of Rome II (in effect, as much a part of the substantive rule as the five year period itself). The court was therefore required to apply it.
The preliminary ruling
Hearing the matter as a preliminary issue, the court determined the point in the defendant’s favour. Service of the claim form was, it said, as a matter of Greek law, an essential step necessary to interrupt the limitation period. It could not be “severed, carved out or downgraded to a matter of mere procedure” which fell to be dealt with under English Civil Procedure Rules. Further, it was said, to do so would, in effect, give rise to a different limitation period in England and Wales than in Greece. This would conflict with the “clear intention” of Rome II which was “to promote predictability of outcomes”. The claim was therefore struck out.
Implications of this ruling
An obvious practical implication of the decision is that any claimant in a case where a foreign law applies (or might apply) should obtain expert advice on what steps are needed in that jurisdiction to bring a claim (or interrupt limitation). It would be dangerous to assume that it will be sufficient to follow the English rules. Nor does the matter necessarily rest with being required to serve proceedings. Some jurisdictions go further (for example, requiring service of evidence). The earlier advice is obtained the better. The point applies with equal force to defendants who will wish to be astute to any potential limitation defence.
Notwithstanding the logic to the court’s decision, the analysis is controversial. It certainly marks a departure from the pre-Rome II position. Before Rome II came into force, section 1(3) of the Foreign Limitation Periods Act 1984 provided expressly that English law as the law of the forum was to determine whether, and the time at which, proceedings had been commenced for limitation purposes in this type of situation.
Section 1(3) now does not apply when Rome II applies (section 8 of the Foreign Limitation Periods Act 1984). But it does not follow from this that the situation should necessarily be treated differently, i.e. as substantive, as opposed to procedural, and hence governed by the law of the tort. Indeed, the authors of Dicey, Morris & Collins have expressed the view that: “it may be thought that rules on when an action is deemed to have begun in an English court should be classified as procedural in nature and hence outside the scope of the Rome II Regulation. If so, then s.1(3) of the 1984 Act will remain applicable to that extent…” (15th edition, para 7-065).
One might also ask whether the court’s analysis sits easily with the approach taken by the CJEU in interpreting Brussels Recast (and its predecessors). Here the CJEU historically left it to respective national laws to determine whether a Member-State court had been seised (or not) for the purposes of the lis alibi pendens provisions. Rather than treat seisin as an autonomous concept, it effectively treated it as procedural (although it should be noted that Article 32 of Brussels Recast provided, for the first time, for autonomous rules on deemed effective dates of seisin, this no longer being left entirely to national law).
It remains to be seen whether that the High Court’s decision in Pandya is the last word in this area. There may be an appeal. Further, the issue is also likely to persist after the Brexit transition period ends (since it is the Government’s intention to retain the Rome II regime as part of UK domestic law). Further cases raising these issues are likely.
About the Author
Daniel Clarke is a leading Travel Law junior and his personal injury practice has a particular specialism in cases with an international element (including claims raising conflicts of law and jurisdictional issues). He has been described as “exceptional on cross-border personal injury claims. by Legal 500 and “excellent on French claims.” by Chambers & Partners.
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If you would like to discuss any of the issues covered in this article please contact Daniel directly or via his practice management team; Paul Barton or Mark Gardner on +44 (0)20 7353 6381 who would be happy to have a discussion in the strictest of confidence.
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