Johnson v Berentzen & Anor

Under the Rome II Regulation, rules determining when a limitation period is interrupted form part of the law applicable to the non-contractual obligation. They are not generally displaced as procedural matters by the law of the forum. The exclusion for evidence and procedure is construed narrowly.

Where Scots law applies, commencement of a personal injury action for limitation purposes requires both issue and service. A court exercising the discretionary power under s.19A of the Prescription and Limitation (Scotland) Act 1973 must weigh all relevant circumstances. An alternative negligence claim against the claimant’s solicitors is an important factor, but it is not automatically determinative.

The claimant suffered serious spinal injuries in a road traffic accident in Scotland. Proceedings were issued in England and Wales before expiry of the Scottish three-year limitation period, but were served after it had expired.

The parties agreed that Scots law governed the limitation period under the Rome II Regulation. The preliminary issues were whether service was governed by Scots or English procedural law, whether the claim was out of time under Scots law, and whether the court should exercise its discretion under s.19A of the Prescription and Limitation (Scotland) Act 1973 to permit the claim to proceed.

1. Applicable limitation law. Articles 4(1) and 15(h) of the Rome II Regulation made Scots law applicable to the limitation rules. Article 1(3), which excludes evidence and procedure, was an exception to the general rule and had to be construed narrowly. The service requirement was an essential part of determining when the Scottish limitation period was interrupted, and was therefore substantive for the purposes of the Regulation.
2. Commencement under Scots law. The court followed Pandya v Intersalonika General Insurance Co SA [2020] EWHC 273 (QB). The claim form had to be both issued and served within the triennium. Issuing the claim in England and Wales did not stop time running under Scots law. The claimant’s action was therefore commenced outside the relevant limitation period.
3. Stare decisis. There was no powerful reason to depart from a decision of a judge of co-ordinate jurisdiction. The claimant’s arguments concerning the Foreign Limitation Periods Act 1984, the distinction between interruption and terminus ad quem, and Actavis UK Ltd v Eli Lilly & Co did not establish such a reason.
4. Discretion under s.19A. The provision conferred an unfettered discretion, to be exercised by weighing all the facts and circumstances. The limitation period remained the general rule and an extension was an exception directed to the justice of the individual case. The claimant bore the burden of establishing that equity favoured relief.
5. The short delay, absence of evidential prejudice, extensive preparation of the claim, substantial progress towards settlement, the claimant’s serious physical and mental health problems, and the practical delay and difficulty of pursuing a professional negligence claim against his solicitors together outweighed the defendants’ loss of the statutory limitation defence. The claim was permitted to proceed under s.19A. The parties’ agreed order for costs in the case was made.