KXL & Ors v Murphy & Anor

The public-policy exception in section 2(1) of the Foreign Limitation Periods Act 1984 is exceptional. A foreign limitation rule should be displaced only where it is manifestly incompatible with a clearly identifiable fundamental principle of justice. A limitation period being less generous than English law, or lacking an equivalent of section 33 of the Limitation Act 1980, is insufficient.

Undue hardship under section 2(2) means excessive hardship caused by the application of the foreign period in the particular circumstances. The claimant must have lacked a reasonable opportunity to pursue the claim timeously with reasonable diligence and knowledge of the limitation rule. An adequate alternative route to redress may be significant.

The claimants brought personal injury claims in England arising from alleged historic sexual abuse and assaults in Uganda. It was common ground that Ugandan law governed the claims and that, under the Ugandan Limitation Act 1959, they were conclusively time-barred.

The preliminary issue was whether applying the Ugandan limitation provisions would conflict with public policy or cause undue hardship under section 2 of the Foreign Limitation Periods Act 1984. The claimants relied on the circumstances of historic abuse and the absence of an extension mechanism. The defendants relied, among other matters, on the availability of proceedings before the Ugandan Human Rights Commission.

1. The application of the Ugandan limitation law did not conflict with public policy under section 2(1) of the Foreign Limitation Periods Act 1984. The exception is confined to exceptional cases involving conflict with a clearly identifiable fundamental principle of justice. Differences between foreign and English limitation regimes, including the absence of a discretionary extension provision equivalent to section 33 of the Limitation Act 1980, do not suffice.

2. Under section 2(2), undue hardship means excessive hardship caused by the application of the foreign limitation period in the particular circumstances. The relevant question was whether the claimants were deprived of their claims without a reasonable opportunity to pursue them timeously, acting with reasonable diligence and deemed knowledge of the foreign limitation period.

3. The claimants’ shame, psychological difficulties, minority during part of the relevant period and the status of the alleged abuser were understandable, but did not create hardship beyond the ordinary consequence of the Ugandan time bar. They knew of the alleged abuse and its wrongfulness, and were deemed to know of the limitation periods.

4. The Ugandan Human Rights Commission provided a sufficient alternative route to monetary and reputational redress. The court accepted the evidence concerning its jurisdiction, willingness to receive the complaints and the defendants’ undertakings to support the process and satisfy any award.

5. The answer to both limbs of the preliminary issue was therefore negative. Section 1 of the Foreign Limitation Periods Act 1984 applied.