Kevin Michael Johnson v Johannes Berentzen
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Stacey |
| Judgment Date | 26 April 2021 |
| Neutral Citation | [2021] EWHC 1042 (QB) |
| Date | 26 April 2021 |
| Docket Number | Case No: QB-2019-001282 |
| Court | Queen's Bench Division |
[2021] EWHC 1042 (QB)
THE HONOURABLE Mrs Justice Stacey
Case No: QB-2019-001282
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr McDermott QC and Mr Denham (instructed by Stewarts Law LLP) for the Claimant
Mr McParland QC (instructed by DAC Beachcroft Claims Ltd) for the Defendants
Hearing dates: 29–31 March 2021
Approved Judgment
This is the trial of a preliminary issue to determine whether the claimant's claim in tort for damages for personal injury in a road traffic accident which occurred in Scotland but was issued in the jurisdiction of England and Wales was brought within the limitation period or is time barred. It raises issues of the proper role and operation of the applicable law in tort selected under the conflict of laws rules in Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations ( Rome II) (“the Rome II Regulation”).
The claimant was on holiday in Scotland riding his BMW R 1200 GS motorcycle with a pillion passenger, Lesley Venables, when it collided with the first defendant's vehicle on the A836 near John O'Groats on 15 June 2016. The claimant is habitually resident in England and Wales and the first defendant, who was also on holiday in Scotland at the time is a German resident and national. The second defendant is the first defendant's insurer. The claimant suffered serious, life changing spinal-cord injuries as a result of the accident. His schedule of loss claims damages in excess of £9 million. Proceedings were issued in the High Court of England and Wales on 8 April 2018 and served on the defendants on 7 August 2019.
The court is asked to determine the following three preliminary issues:
i) Pursuant to the Rome II Regulation, and if applicable, (as the claimant alleges and the defendants deny), the Foreign Limitation Periods Act 1984 (“the 1984 Act”), what are the relevant rules that govern the commencement of this action, in particular which stop time running for the purposes of limitation?
ii) If the relevant rules identified in (i) are those of Scots law, was the claimant's action commenced outside the relevant limitation period?
iii) If the claimant was out of time when he commenced the proceedings, whether the discretion available to the court under s.19A Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) should be used so as to allow the claimant's action to continue.
Following service of the claim, the defendants took the point on limitation asserting that the claim was statute barred since the claim had only been issued, but had not been served on the defendants before the expiry of the applicable three-year limitation period for the commencement of a claim for damages for personal injury, as required under Scots law in order to stop time running.
In the reply drafted by Mr McDermott QC and Sarah Crowther QC served on 10 October 2019, the claimant asserted that service of the claim was a procedural matter and not a substantive law issue and was therefore to be governed by the procedural rules and provisions of England and Wales as the lex fori or place where the litigation is being conducted, not Scotland. The claimant therefore had a further period of four months from issue of the proceedings in which to serve the claim and since the defendants had been served within that further period the claim was not out of time. In the alternative the claimant sought an extension of time pursuant to the discretion provided by s.19A of the 1973 Act.
The parties agreed that the limitation issues, including whether the court should exercise its discretion under s.19A of the 1973 Act should be determined as preliminary issues and agreed the evidence to be before the court. The hearing was conducted remotely via Teams at the request of the parties in light of the current pandemic. Both sides agreed and were permitted to call live expert evidence on Scots law – Ms Angela Grahame QC for the claimant and Mr Robert Milligan QC for the defendants. The instructing solicitors, Mr Scott Rigby for the Claimant and Mr David Johnson for the defendants also gave live evidence to the court. The medical reports of Mr Manish Desai (MBBS, MS (Tr&Orth), MRCS, FRCP) and Professor Anjum Bashir (MBBS, MCPS(Psych), MRCPsych, FRCPsych) were in the bundle of documents for the hearing (the defendants having acceded to the claimant's late request for Professor Bashir's report to be included on the day of the hearing), together with relevant party and party correspondence and other relevant documents as had been agreed by the parties. The parties had reached a memorandum of understanding limiting the extent to which the court would be permitted to know the details of the without prejudice negotiations between them. Skeleton arguments were exchanged in accordance with the case management directions of HHJ Sarah Richardson sitting as a Deputy Judge of the High Court and permission was given to the claimant to submit a further case note shortly before the hearing.
Issues 1 and 2
It is convenient to deal with issues 1 and 2 together and as entirely discrete from issue 3.
There was a considerable measure of agreement between the parties. There is no dispute that pursuant to Art. 4(1) of the Rome II Regulation the applicable law is that of Scotland and that this claim proceeds in the courts of England and Wales pursuant to the rules of procedure and evidence of the English and Welsh courts pursuant to Art. 1(3) of the Rome II Regulation. It is further agreed that the limitation period is to be determined in accordance with Scots law pursuant to Art. 15(h) which provides that:
“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 Scots legal experts agreed that the relevant limitation period to be applied is contained in s.17 of the 1973 Act which imposes a three-year limitation period for actions in respect of personal injuries not resulting in death, which is referred to as “the triennium.” The parties also agreed that time ran from the day of the accident on 15 June 2016 and the triennium expired on the third anniversary of the accident (the claimant having abandoned an argument for a later date during the course of the hearing).
The parties also agreed that an action is commenced for the purposes of stopping or interrupting the running of the limitation period under the 1973 Act when the defender (as it is referred to in Scotland) has been served with a copy of the Summons (claim form). This is also known as the citation of the defender and the date of execution of service on the defender. Under Scots law, notification or intimation of a claim to a defender's solicitor is not sufficient to stop the limitation clock running. As the defendants' solicitors were only formally served on 7 August 2019, after the expiry of the triennium, the Scots law experts were agreed that there is a procedural barring of the action which is generally referred to as the action being time barred. In order to stop or interrupt the relevant limitation period, in Scotland, it is necessary to effect service on the defender quite unlike the position in England and Wales.
The claimant's argument therefore was that the service of the proceedings is a procedural step within the scope of the exception in Art. 1(3) of the Rome II Regulation and therefore to be governed by the law of England and Wales where the proceedings have begun.
In Pandya v Intersalonika General Insurance Co SA [2020] EWHC 273 (QB) Mrs Justice Tipples has recently decided the point in the context of a road traffic accident in Greece. Having carefully reviewed the authorities, academic literature and textbooks cited to her she reached the following conclusion at para 40:
“There is no dispute between the parties that the law of limitation in this case is governed by Greek law. On the agreed expert evidence before me, it is clear that it is a rule of Greek law that, in order to interrupt or stop the period of limitation, the claim form must be both issued and served….Further, the experts agree that as a matter of Greek law, a claim that is served after the five-year period is time-barred. Therefore, service of the claim form is, as a matter of Greek law, an essential step which is necessary to interrupt the limitation period. Service of the claim cannot be severed, carved out or downgraded to a matter of mere procedure which falls to be dealt with under English Civil Procedure Rules. That, apart from anything else, would give rise to a different limitation period in England and Wales than in Greece. The clear intention of the Rome II Regulation is to promote predictability of outcomes and, in that context, it seems to me that such an outcome is not what the Regulation intended to happen in these circumstances”
Ms Pandya's claim which had been issued, but not served, within the Greek limitation period was therefore time barred and she could not avail herself of the provisions of the CPR which stop the limitation clock on issue and give a further period of time in which to serve the proceedings on a defendant. The claim was dismissed.
Ms...
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...2 All ER (Comm) 68, Pandya v Intersalonika General Insurance Co SA [2020] EWHC 273 (QB), [2020] ILPr 44 and Johnson v Berentzen [2021] EWHC 1042 (QB). In addition, he relies on three academic works which I will address first, as two of them are cited in the authorities, before I turn to co......