KXL (1) NXR (2) MXD (3) v Nicholas Murphy (1) The Society of Missionaries of Africa (“The White Fathers”) (2) [2016] EWHC 3102 (QB) – Applicable law and foreign limitation periods

This case concerned allegations of historic sexual abuse against three claimants who at the time of the alleged abuse were children living in Uganda. The preliminary issue before the court was a matter of applicable law: whether the Ugandan limitation period applied so that the claim was statue barred.

Comment

Rome II (Regulation EC 864/2007) governs matters of applicable law in England and Wales but, because of its temporal scope, it does not cover historic actions such as sexual abuse claims or disease claims where there is a long latency period. In such actions the Foreign Limitation Periods Act 1984 (‘FLPA’) provides the general principle that the lex causae includes matters of limitation subject to a number of narrow exceptions.

This case provides helpful guidance on two of the exceptions to the general principle that the lex causae includes limitation. One exception considered by the court relates to whether the imposition of a foreign limitation period would be contrary to public policy (section 2(1) FLPA) and the other exception considered by the court relates to whether the imposition of the foreign limitation period would cause undue hardship (section 2(2) FLPA). This case highlighted the narrowness of the above exceptions to the general principle. Reliance on the above exceptions are likely to fail unless (1) the foreign limitation period identifiably offends a fundamental principle of justice or (2) the defendant has acted in an oppressive manner by, for example, concealing facts which made it difficult for the claimant to bring the claim within the limitation period or (3) there were special circumstances, which when considered objectively, made it unreasonable to expect the claimant to bring the claim within the limitation period. Sexual abuse claims do not, without further reason, fall within (3). In cases of sexual abuse where the effects are particularly profound or in injury cases where the injury is latent, and where the limitation period is short and does not incorporate a concept of ‘knowledge’ similar to that in section 14 of the Limitation Act 1980, it is this author’s opinion that a court may be persuaded not to apply the foreign limitation period under section 2(2) FLPA as it would cause ‘undue hardship’ to the claimant.

Although Rome II did not apply in this case it is right to note that, pursuant to article 26, Rome II contains a similar provision to section 2(1) FLPA. Article 26 states: The application of a provision of the law of any country specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum.’ However, a significant difference between the FLPA and Rome II is that section 2(1) FLPA states that the foreign limitation period shall not apply to the extent of any conflict with public policy whereas article 26 provides the court with a discretionary power where it may choose not to apply the foreign limitation period only where there is manifest incompatibility with public policy. In other words, article 26 provides for an (even) more demanding test than that under section 2(1) FLPA if the foreign law is not to be applied.

Case summary

The three claimants’ alleged abuse was said to have taken place in Uganda and to have been perpetrated by a missionary – the first defendant – whilst working for the second defendant such that the second defendant was vicariously liable.

Because of the historic nature of the abuse, all of the alleged tortious acts occurred prior to 20 August 2007, the date of entry into force of Rome II[1] (Regulation EC 864/2007). Accordingly, despite the universal application of Rome II which includes within its scope matters of limitation, the allegations fell outside Rome II’s temporal scope. The FLPA therefore applied. The claimants accepted that they had brought their claims outside the applicable Ugandan limitation period. The claimants further accepted that there was no equivalent to section 33 of the Limitation Act 1980 in Ugandan law so that if Ugandan law applied their claims were irredeemably statue barred.

Issues in the case

Pursuant to section 1 of the FLPA the law governing limitation will be that of the applicable governing law (‘lex causae’) subject to certain exceptions. The lex causae was agreed to be Ugandan law in this case and so the claimants sought to rely on the exceptions contained within section 2(1) and 2(2) of the FLPA.

Accordingly, the issues for the court to decide were:

  • whether it would be contrary to public policy to adopt the Ugandan limitation period (section 2(1) FLPA); and
  • whether it would cause undue hardship to the claimants to adopt the Ugandan limitation period which would in turn be contrary to public policy (section 2(2) FLPA).

It was agreed that should the exceptions apply then the English limitation period would apply such that the claimants would be entitled to rely on section 33 of the Limitation Period 1980 and submit that the primary limitation period should be disapplied.

The claimants argued to adopt the Ugandan limitation period would be contrary to public policy as there was a developing trend in similar jurisdictions to abolish or relax the time limit applicable in cases relating to abuse of children. The claimants relied on obiter comments from A v Hoare [2008] UKHL 6 and a Bill before the Scottish parliament as well as Acts from various states in Australia.

It was argued by the claimants that application of the Ugandan limitation period would cause undue hardship because by the very nature of sexual abuse claims victims of abuse often found it difficult to bring claims because of the abuse they had suffered.

Findings of the Court

The court rejected the claimants’ submissions and found that the neither the section 2(1) FLPA ‘contrary to public policy’ exception nor the section 2(2) FLPA ‘undue hardship’ exception applied. With regard to the ‘contrary to public policy’ submissions Mr Justice Wilkie found that there had to be a conflict with fundamental principles which were clearly identifiable for such a submission to succeed; the claimants evidence did no more than identify the the position in contiguous or similar jurisdictions. Further the fact that the Ugandan limitation period was less generous than the English limitation period was not sufficient and neither was the fact that the law of Uganda did not have a provision similar to section 33 of the Limitation Act 1980.

With regards to the ‘undue hardship’ submissions Mr Justice Wilike found that the claimants’ hardship was no more nor less than the consequence of the Ugandan time bar and that there were no sufficient circumstances to bring the claims within section 2(2) of the FLPA. Special or sufficient circumstances for the purposes of section 2(2) might be oppressive and misleading conduct by the defendant or a particularly unusual difficulty faced by the claimant preventing them from commencing proceedings. There had been no oppressive or misleading conduct by the defendants and it was not right to categorise all sexual abuse claim as causing undue hardship when bringing a claim within the Ugandan limitation period. There were no specific facts to indicate that these claimants had suffered particular difficulties which were sufficient to show undue hardship for the purposes of section 2(2) FLPA.

[1] Despite entering into force of 20 August 2007 Rome II does not apply until 11 January 2009, the date of application: Homawoo v GMF Assurances SA, (C412/10), European Court of Justice

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