Proceedings time barred where claim form issued but not served during applicable foreign limitation period

The High Court has held that proceedings were time barred where the claim form was issued in the English courts before the expiry of the applicable Greek limitation period, but was not served until after that period had expired: Pandya v Intersalonika General Insurance Company SA [2020] EWCH 273 (QB).

Whether proceedings had been brought within the limitation period was a matter for the applicable law, not a matter of evidence and procedure of the English court. Under Greek law it was necessary for proceedings to have been both issued and served to stop the limitation period running. As that had not happened, the claim was dismissed.

The clear message is that, where a foreign law applies to a claim, it is important to check not only what the limitation period is under that law but also what steps are needed to bring proceedings before it expires. Merely issuing proceedings will not be sufficient to stop time running if something more is required under the applicable law.

Although the present case was decided under Rome II, the EU Regulation which governs the law applicable to non-contractual obligations, the position will not change even after the Brexit transition period comes to an end. The English court will continue to apply the same rules, both as a result of transitional provisions in the UK/EU Withdrawal Agreement and because the UK intends to incorporate Rome II into English law as from the end of the transition period.

Background

The claimant was seriously injured by a motorbike when crossing the road in Kos while on holiday with her family. The accident took place on 29 July 2012.

In 2017 she commenced proceedings in England against the Greek insurers of the motorcyclist. The claim form was received by the court on 25 July 2017, and subsequently stamped as issued on that date, and was served on the defendant on 26 January 2018.

The defendant argued the proceedings were time barred, as under Greek law proceedings had to be both issued and served within five years of the accident. The claimant in reply argued that the claim was brought within the 5 year Greek limitation period as the claim form was issued by the English court within the 5 year period.

The defendant relied on Article 15(h) of the Rome II Regulation which provides:

“The law applicable to non-contractual obligations under this Regulation shall govern in particular ….(h) the manner in which an obligation may be extinguished and rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation.”

The claimant relied on Article 1(3) which provides:

“This Regulation shall not apply to evidence and procedure…”

Decision

The High Court (Mrs Justice Tipples) held that the claim was time barred.

There was no dispute that limitation was governed by Greek law. The expert evidence agreed that in order to stop the period of limitation under Greek law a claim form must be both issued and served. Service was therefore an essential step as a matter of Greek law to interrupt the limitation period. Service of the claim could not be “severed, carved out or downgraded to a matter of mere procedure which falls to be dealt with under the English Civil Procedure Rules”.

To find otherwise would mean a different limitation period would apply in England compared to Greece, which would be contrary to the intention behind the Rome II Regulation of promoting predictability of outcomes. Academic writing also supported the judge’s conclusion.