AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 6: ACCIDENTS ABROAD ARE SUBJECT TO DIFFERENT LIMITATION PERIODS
In the sixth in this series we look at accidents abroad. In most cases the limitation period of the country where the accident occurred is the limitation period that applies. A lack of knowledge of this basic point, and of the existence and nature of the foreign limitation period, can give rise to profound difficulties. Again the main post of this post is to make you aware of this issue so you can take steps to avoid problems.
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 and Welsh courts may have jurisdiction to hear the matter, however it is the foreign limitation period that applies.
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.
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 UNDUE “HARDSHIP”
In Harley –v- Smith  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  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,  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.”
JUST BECAUSE IT IS DIFFERENT DOES NOT MEAN THAT IT IS WRONG
In KXL -v- Murphy  EWHC 3102 Mr Justice Wilkie held that a Ugandan limitation period that prevented claimants claiming damages for alleged sexual abuse was not contrary to public policy. Nor did its operation give rise to “undue hardship”.
“I accept that the following principles are established from the relevant authorities.
i) It would be wrong to treat a foreign limitation period as contrary to English public policy simply because it is less generous than the comparable English provision in force at the time (Durham v T&N plc 1996 Court of Appeal unreported).
ii) Public policy should be invoked for the purposes of disapplying the foreign limitation period only in exceptional circumstances. Too ready a resort to public policy would frustrate our system of private international law which exists to fulfil foreign rights not destroy them.
iii) Foreign law should only be disapplied where it is contrary to a fundamental principle of justice.
iv) The fundamental principle of justice with which it is said foreign law conflicts must be clearly identifiable. The process of identification must not depend upon a Judge’s individual notion of expediency or fairness but upon the possibility of recognising, with clarity, a principle derived from our own law of limitation or some other clearly recognised principle of public policy. English courts should not invoke public policy save in cases where foreign law is manifestly incompatible with public policy. (City of Gotha v Sothebys, Transcript October 8 1998 p89)
v) The English law of limitation serves the purpose of providing protection for defendants from stale claims, encouraging claimants to institute proceedings without unreasonable delay, and conferring on a potential defendant confidence that after the lapse of a specific period of time he will not face a claim (Law Com report No 114 para 4.44) and
vi) The absence of any escape clause such as that contained in Section 33 of the 1980 Act cannot make the imposition of [the foreign limitation period] in any way contrary to English public policy(Connelly v RTZ Corp plc & anr 1999 CLC 533 at 548).
DOES THE ACT APPLY TO ACTIONS BROUGHT UNDER THE PACKAGE TRAVEL REGULATIONS?
See the discussion in the post Travel Law & Limitation: An update and helpful reminder