Vilca & Ors v Xstrata Ltd & Anor

Under Peruvian law, prescription for non-contractual claims cannot be interrupted by an extra-judicial notice where the claim falls within the rule requiring default from service of the demanda. Service of a demanda interrupts prescription only for claims within the scope of its petitorio and causa petendi. Article VII of the Procedural Code permits a Peruvian court to apply domestic Peruvian law not invoked, or wrongly invoked, by the parties. It does not permit the court to determine a claim founded on foreign law unless that law is pleaded and proved as fact. An English procedural amendment under CPR 17.4 does not relate back to the original proceedings. Silence, delay, participation in litigation and procedural expenditure do not amount to tacit waiver unless objectively incompatible with reliance on limitation at any stage of the proceedings.

Twenty-two Peruvian claimants alleged personal injury or deaths arising from police action during a protest at the Tintaya mine in Peru between 21 and 28 May 2012. They sued the United Kingdom parent company and the Peruvian mine operator in England, initially pleading claims under English law. Claims under Peruvian law were introduced by later amendments, after the two-year Peruvian prescription period had expired.

The parties agreed that Peruvian law governed the non-contractual claims and their limitation. The preliminary hearing concerned whether the original English pleadings interrupted prescription for the later Peruvian claims, whether CPR 17.4 or any other doctrine provided relation back, and whether the defendants had tacitly waived limitation by their conduct.

1. Disposition. The claims under Peruvian law were barred by extinctive prescription. The defendants had not tacitly waived their limitation defence.
2. Under Articles 1333, 1334, 1985 and 1996 of the Civil Code, the claims were obligations whose sums required judicial determination. Article 1334's exception concerned the accrual of interest under the second sentence of Article 1985, not the whole field of non-contractual liability. Prescription therefore could not be interrupted by extra-judicial notice under Article 1996(2).
3. Service of a demanda under Article 1996(3) interrupts prescription only for claims within the ambit of the petitorio and the causa petendi. The purpose of the procedural requirements is to enable the defendant to know and defend the claim to which he or she is exposed.
4. Article VII of the Procedural Code permits the Peruvian court to apply domestic Peruvian law even if it has not been invoked or has been invoked erroneously. It does not extend to foreign law. Foreign law must be pleaded and proved as fact. A demanda that omits material facts necessary to sustain a foreign-law claim cannot interrupt prescription for that claim.
5. The original Claim Form and Particulars of Claim pleaded English-law causes of action and did not plead the necessary factual basis of claims under Peruvian law. Their service therefore did not interrupt prescription for the later Peruvian claims.
6. CPR 17.4 did not create a relation-back rule. The obiter reasoning in PJSC Tatneft v Bogolyubov [2017] EWCA Civ 1581 confirmed that a limitation defence remained available after an amendment introducing a new claim.
7. Tacit waiver under Articles 1991 and 141 required an act objectively incompatible with an intention to rely on limitation at any stage of the proceedings. Consent to amendments, participation in disclosure and mediation, agreement of directions, and exchange of evidence were not such acts in the English procedural context. The reasoning in Ketteman & Ors v Hansel Properties and Ors [1987] AC 189 was treated as an extreme factual example, not an inflexible rule.