ACCIDENTS ABROAD AND THE FOREIGN LIMITATION PERIODS ACT: AVOIDING NEGLIGENCE CLAIMS 5

Mediatelegal

 

It is easy to assume that every jurisdiction has a limitation period of three years. However when an accident happens abroad the Foreign Limitation Periods Act 1984 provides that the relevant limitation period is the period that prevails in the country where the accident occurred. The English courts may have jurisdiction to hear the matter, however it is the foreign limitation period that applies.

 

THE ACT

The Act is clear:

1 Application of foreign limitation law.

 (1) Subject to the following provisions of this Act, where in any action or proceedings in a court in England and Wales the law of any other country falls (in accordance with rules of private international law applicable by any such court) to be taken into account in the determination of any matter—

(a) The law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings; and

(b) Except where that matter falls within subsection (2) below, the law of England and Wales relating to limitation shall not so apply.

 

(2) A matter falls within this subsection if it is a matter in the determination of which both the law of England and Wales and the law of some other country fall to be taken into account.

(3) The law of England and Wales shall determine for the purposes of any law applicable by virtue of subsection (1)(a) above whether, and the time at which, proceedings have been commenced in respect of any matter; and accordingly, section 35 of the M1Limitation Act 1980 (new claims in pending proceedings) shall apply in relation to time limits applicable by virtue of subsection (1)(a) above as it applies in relation to time limits under that Act.

(4)  A court in England and Wales, in exercising in pursuance of subsection (1)(a) above any descretion conferred by the law of any other country, shall so far as practicable exercise that discretion in the manner in which it is exercised in comparable cases by the courts of that other country.

(5) In this section “law”, in relation to any country, shall not include rules of private international law applicable by the courts of that country or, in the case of England and Wales, this Act.

 

THE EXCEPTIONS

There are exceptions. Section 2 provides:

2 Exceptions to s. 1.

 (1) In any case in which the application of section 1 above would to any extent conflict (whether under subsection (2) below or otherwise) with public policy, that section shall not apply to the extent that its application would so conflict.

(2) The application of section 1 above in relation to any action or proceedings shall conflict with public policy to the extent that its application would cause undue hardship to a person who is, or might be made, a party to the action or proceedings.

(3) Where, under a law applicable by virtue of section 1(1)(a) above for the purposes of any action or roceedings, a limitation period is or may be extended or interrupted in respect of the absence of a party to the action or proceedings from any specified jurisdiction or country, so much of that law as provides for the extension or interruption shall be disregarded for those purposes.

 

HOWEVER A LAWYER’S NEGLIGENCE IN NOT KNOWING OF THE LIMITATION PERIOD DOES NOT GIVE RISE TO “HARDSHIP”

In Harley –v- Smith [2010] EWCA Civ 78 the Court of Appeal held that a failure by English lawyers to realise that there was a 12 month period in Sharia law did not amount to undue hardship. The fact that there was a 12 month period compared to the three year limitation period in England and Wales did not give rise to undue hardship.

 

OTHER EXAMPLES OF THE CLAIMANT FAILING BECAUSE OF THE ACT

In Naraji v Shelbourne [2011] EWHC 3298 (QB) the court found that a clinical negligence action was subject to the two year limitation period that prevailed in Indiana . The action was statute barred and there was nothing unjust about the existence of the two year period.

 

“175   The Claimant seeks to invoke another argument to defeat the time bar. He contends that if the claim is prima facie time barred under the law of Indiana, then Indiana limitation law should be disapplied as being contrary to English public policy, in accordance with sections 2(1) and (2) of the Foreign Limitation Periods Act 1984 which provide:

 

“(1) In any case in which the application of section 1 above would to any extent conflict (whether under subsection (2) below or otherwise) with public policy, that section shall not apply to the extent that its application would so conflict.

(2) The application of section 1 above in relation to any action or proceedings shall conflict with public policy to the extent that its application would cause undue hardship to a person who is, or might be made, a party to the action or proceedings.”

 

176     There is nothing contrary to English public policy in the features of the Indiana limitation provisions as they apply to this case. They do not deprive the Claimant of his claim in circumstances where he did not have a reasonable opportunity to pursue it timeously if acting with reasonable diligence. He commenced proceedings timeously in Indiana. The application of the time bar arises from his decision to commence proceedings there and his subsequent abandonment of them, not from any undue hardship imposed by the foreign time limit itself. The case of Harley v Smith, [2010] EWCA Civ 78 is in point. In that case the trial judge disapplied a one year limitation period in the law of Saudi Arabia, relying on the fact that the claimants had been wrongly advised as to the time limits and that they would therefore suffer undue hardship. The Court of Appeal held that the one year limitation period did not apply, but went on to consider whether the trial judge would have been right to disapply it as causing undue hardship. Sir John Chadwick said at paragraph 53:

 

“… the factor relied upon by the judge is not that undue hardship arose from the fact that the relevant limitation period under Saudi law was twelve months (if that was, indeed the case); but rather from the fact that the lawyers in the United Kingdom whom the claimants consulted in June 2003 did not appreciate that that was, or might be, the position. But that cannot be a relevant factor. The question is not whether undue hardship is caused by wrong advice; but whether it is caused by the application of the foreign limitation period. There is nothing to suggest that, on the basis of the advice which they had received, the claimants chose to delay the commencement of proceedings until after the period of twelve months had expired; or that, if they had appreciated the need to commence proceedings within the twelve month period, there would have been any difficulty, in the present case, in doing so.”

 

177     The fact that the Claimant brought timeous proceedings in Indiana demonstrates that he has not suffered undue hardship by reason of the foreign limitation period . If he has suffered hardship, it is because he issued in Indiana and then abandoned those proceedings before issuing too late in England. Whatever the reason for the decision to abandon the Indiana claim and reissue in England outside the two year period and whatever the advice on which it was based, the inescapable fact is that the Claimant was aware of the two year limitation period, issued proceedings in Indiana within that period, and could had he so chosen have issued proceedings in England within that period.”

 

DOES THE ACT APPLY TO ACTIONS BROUGHT UNDER THE PACKAGE TRAVEL REGULATIONS?

Most probably it does.  Saggerson on Travel Law and Litigation, states that except in rare cases it is the foreign limitation period that will be applied to the issue?

 

USEFUL  LINKS

The Foreign Limitation Periods Act 1984 can be found at

http://www.legislation.gov.uk/ukpga/1984/16/section/1

The Harley –v- Smith case is at

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2010/78.html&query=harley+and+smith&method=boolean

The Naraji –v- Shelborne case is at

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2011/3298.html&query=naraji&method=boolean

RELATED POSTS

This is part of a series of posts on avoiding negligence and difficult limitation periods.

http://civillitigationbrief.wordpress.com/2013/07/07/how-not-to-get-sued-2-not-every-limitation-period-is-three-years/  and

http://civillitigationbrief.wordpress.com/2013/09/10/aviation-and-limitation-10-questions-every-personal-injury-litigator-should-ask/

  • For the post in relation to water travel and limitation periods see

http://civillitigationbrief.wordpress.com/2013/09/15/trouble-at-sea-limitation-periods-and-water-travel-how-not-to-get-sued-4/