Limitation and Rome II: is service a matter of procedure?

In Pandya v Intersalonika General Insurance Co SA [2020] EWHC 273 (QB), Tipples J considered as a preliminary issue whether the claimant’s case should be struck out on the basis that it was time-barred. The case involves an interesting analysis of whether service will be treated as a matter of evidence and procedure under art. 1(3) of Rome II (and therefore governed by the lex fori) or whether it is a matter relevant to the question of limitation under art. 15(h) (and therefore governed by the lex causae).

A helpful summary of the decision was written by the defendant’s counsel (which is available here). This blog considers the full transcript of the judgment which has now been approved by the judge: it is available on Lawtel and Westlaw.

The claimant was a UK national who was hit by a motorcycle as she was crossing a road in Kos. The defendant was a Greek-registered insurance company which provided insurance to the motorcyclist.

The Greek Civil Procedure Code set a five-year limitation period. The defendant argued that, since the claimant’s claim had been issued but not served within this five-year period, it was out of time. The claimant said that it was sufficient that the claim had been issued within the five-year period and that the English Civil Procedure Rules then applied to govern the question of service.

The parties agreed that the applicable law in the case was to be determined by reference to Rome II. There was no dispute that the law applicable to the issue of liability was Greek law pursuant to art. 4(1). There was also no dispute that English law governed issues of procedure and evidence pursuant to art. 1(3) and that that Greek law applied to the law of limitation in accordance with art. 15(h). The foreign law experts agreed that, under Greek law, the relevant period of limitation was five years and that interruption of limitation under Greek law required both the filing and service of the claim within that time period.

However, the claimant’s position was that service of the claim was a point of pure procedure, which fell squarely within art. 1(3). It was therefore governed by the English rules of civil procedure. The claimant argued that, while pursuant to art. 15(h) the claim had to be issued within five years and then served, the question of service itself was a procedural one which had nothing to do with this provision.

The defendant said that service of the claim was a rule of Greek law relating to limitation and a claim had to be both issued and served within the period required by Greek substantive law in order to interrupt the limitation period. This meant that the requirements of service could not be severed or downgraded to a step which was simply governed by the rules of civil procedure under English law.

The judge was referred to various cases and texts, including, most notably, Professor Andrew Dickinson’s monograph “The Rome II Regulation: The law application to non-contractual obligations” (2008). In Wall v Mutuelle De Poitiers Assurances [2014] 1 WLR 4263, 4269G–H, the Court of Appeal had described this monograph as “valuable”. At paragraph 14.50, Professor Dickinson made the following comments:

“the Regulation makes clear that ‘rules relating to the commencement, interruption and suspension of a period of prescription or limitation’ fall within the ambit of Article 15(h). Accordingly, for example, if the limitation regime of the country whose law applies to a particular non-contractual obligation under the Regulation specifies that an event prior to or following the commencement of legal proceedings is relevant for limitation purposes (for example, formal notification of a claim, commencement of a mediation procedure, or service of the claim document), the Member State court seised of proceedings must endeavour to give effect to that rule, having regard to its own corresponding procedures where appropriate.”

Tipples J agreed with the defendant that “service of the claim cannot be severed, carved out, or downgraded to a matter of mere procedure which falls to be dealt with under the English Civil Procedure Rules.” That interpretation would have given rise to a different limitation period in England and Wales than in Greece, contrary to the clear intention of Rome II to promote predictability of outcomes. She also considered that there was no support in the Regulation itself or the authorities or textbooks for the claimant’s argument. On the contrary, extracts from Dicey & Morris and Professor’s Dickinson’s monograph quoted above supported the defendant’s argument. She concluded that the “very straightforward” answer to the preliminary issue was that the claim was time-barred under Greek law.

The claimant’s application for permission to appeal was refused.

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