Limitation under Rome II: Pandya v Intersalonika General Insurance Company
Now more than a decade old, the Rome II Regulation on the law applicable to non-contractual obligations continues to give rise to many arguments, including as to just how much of a foreign law the English court should apply. Tipples J’s judgment in Pandya v Intersalonika General Insurance Company, handed down on 28 January 2020, is the latest chapter in this ongoing discourse.
The judgment concerned a beguilingly simple preliminary issue: was the claim time-barred under the law of Greece?
Under Greek law, the relevant limitation period was 5 years. The Claimant filed her claim form shortly before this period was due to expire. However, in Greek law unlike English law it is a requirement that the document originating proceedings be both filed and served in order to stop limitation running.
The Claimant served the claim form six months after issue and after the expiry of the Greek limitation period. The experts instructed by the parties agreed that in a Greek court, the claim would be time-barred. However, the Claimant argued that the service requirement for interruption of limitation was procedural, and that under Article 1(3) of Rome II the English court should therefore ignore it, and treat limitation as interrupted with the commencement of proceedings according to English procedure, i.e. the filing of the claim form in the usual way.
Tipples J disagreed with the Claimant’s submissions. She found that as a matter of Greek law, both filing and service of the claim form were required in order to interrupt limitation, and that the requirement for service “cannot be severed, carved out or downgraded to a matter of mere procedure”; instead, that requirement must be applied under Article 15(h) of Rome II as a rule of prescription or limitation. Further noting that the Claimant’s position would in essence allow an extension of the limitation period by 6 months as a result of the forum the Claimant had chosen to issue in, she held that the Claimant’s interpretation of Rome II could not be correct, and dismissed the claim.
Though concerned with the specific requirements under Greek law, the judgment has significant implications for all lawyers dealing with foreign limitation periods and provides some welcome clarity. Many countries’ laws do not treat the filing of a claim form as sufficient to interrupt limitation: both claimants and defendants will need to apprise themselves of what the applicable law actually requires.
Lucy Wyles of 2TG, instructed by Irwin Mitchell, appeared for the successful Defendant, assisted by Alistair Mackenzie.