Posts Tagged lex fori
Back to the 80s. Arthur Scargill, submission (voluntary appearance) under Brussels Ia and applicable law for statutes of limitation.
In  EWHC 1359 (Comm) National Union of Mineworkers v Organisation Internationale de l’energie et des mines defendant is French-domiciled and represented by its chair, Arthur Scargill. That’s right, many of us whether Brits or not will remember him from the 1970s and 1980 mine strikes. (Unlike what some think, he did not though feature in the Tracey Ullman cover of Madness’ ‘my girl’: that was Neil Kinnock.
Of more immediate relevance for the blog is the discussion at 19 ff on jurisdiction and applicable law.
Defendant is an international body to which a number of trade unions are affiliated. Those unions operate in different countries but all represent workers engaged in the fields of mining and/or energy supply. The name the Defendant uses in English is the International Energy and Mineworkers’ Organisation (“the IEMO”) and it is the successor to the International Mineworkers’ Organisation (“the IMO”) following a merger in 1994.
The proceedings relate to the parties’ respective rights in relation to sums recovered by the Defendant from Mr. Roger Windsor in August 2012 after prolonged legal proceedings in the French Republic and in England. Those proceedings were undertaken in the name of the Defendant but funded in part by the Claimant. There is a shortfall between the sums recovered and the amounts of the principal debt and the legal costs of the proceedings. The parties are in dispute as to the distribution of the sums recovered from Mr. Windsor; as to which should bear any shortfall between the sums recovered and the costs incurred in the proceedings; and as to the amounts which each has paid by way of costs in those proceedings.
The underlying indebtedness which resulted in recovery being made against Mr. Windsor derived from a loan of £29,500 which the Claimant made to him in 1984. He was then the Claimant’s Chief Executive Officer and the loan was made by way of assistance with house purchase following the relocation of the Claimant’s headquarters from London to Sheffield in 1983. There was a repayment of that loan in November 1984 but it is common ground that to the extent that there was such a repayment it came from funds which had been lent to Mr. Windsor. In 1986 the right to recover payment from Mr. Windsor (either of the original loan or of the subsequent loan) was assigned to the IMO.
Claimant argues the courts of England and Wales have jurisdiction by reason of Articles 7(1) and 25(1)(b) Brussels Ia (by virtue of an agreement made in 1990), and that in any event defendant is to be treated as having accepted that the court has jurisdiction to try this matter (an Article 26 ‘prorogation’, ‘submission’ or ‘voluntary appearance’ in other words).
Eyre J at 24 agrees that submission has taken place: CPR rules (Pt11) provide the details the procedure to be followed by a defendant contesting jurisdiction. Defendant did make an application to the court within 14 days of filing the acknowledgement of service, as requested by CPR 11. However, it expressly accepted that the application was to be regarded as relating to the questions of limitation and of the effect of the Release Agreement. In its application it made extensive reference to Brussels Ia but did so in that context. In particular that material was put forward in support of the contention that the claim was statute-barred either by reference to the Limitation Act 1980 or by reference to the French limitation provisions. There was in other words no wider or more fundamental challenge to the court’s jurisdiction and the realisation probably in hindsight that jurisdiction may not be that straightforward, cannot impact on that original application.
Had there not been submission, interesting discussions could have ensued I suspect on the place of performance of the agreement (unless clear choice of court had been made), England as a forum contractus, and I for one shall be using the case in my classes as a good illustration of the ‘conflicts method’ (looking over the fence)
Attention then turns to the issue of applicable law for the time-barred argument: at 26: ‘Defendant also argued that the proceedings were to be regarded as subject to French law and in particular the French limitation provisions which impose a time limit of three years for claims. The Defendant made reference to the Civil Jurisdiction and Judgments Act 1982 and the Foreign Limitation Periods Act 1984. The contention was that French law was applicable because the judgments against Mr. Windsor were obtained in France and then registered in England and Wales. That argument was misconceived. Such an argument might have relevance if the issue were one of the enforcement of the judgments against Mr. Windsor though I make no finding on that question. The current proceedings are not concerned with the enforcement of the judgments against Mr. Windsor but with the distribution of the sums which have been received by the Defendant as a result of the litigation against Mr. Windsor. It follows that the provisions to which the Defendant made reference can have no relevance to the current proceedings. The Defendant made passing reference to the fact that it is domiciled in France but this was not the principal basis of the contention that French law was applicable and without more it would not cause the parties’ dealings to be governed by French law. In those circumstances the parties’ rights and liabilities are to be determined by reference to the law of England and Wales and any questions of limitation are governed by the Limitation Act 1980.‘
I am not privy to the submissions on applicable law, but I am assuming that there must have been some discussion of the impact of the 1980 Rome Convention. Not the Rome I Regulation which would not have applied ratione temporis. That Regulation like Rome II has not altogether straightforward provisions (as I have noted on other occasions) on procedure being covered by the lex contractus. Whether Eyre J classifies the limitation issue as being covered by English law per lex fori or alternatively as lex causae (lex contractus of the 1990 agreement) is not clear.
Back in the 80s I would have never dreamed of bumping into Mr Scargill again in the context of an interesting conflict of laws issue.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 1, Heading 1.3.1, Chapter 2, Heading 2.2.7.
The Portuguese claimant’s vehicle was damaged in an accident in Spain in August 2015. He issued proceedings in Portugal in November 2016 to recover his uninsured losses. Under Portuguese law, the lex fori, the limitation period is 3 years. Under Spanish law, the lex causae per Rome II, limitation is fixed at 1 year.
The Court first of all re-emphasises the importance of co-ordinated interpretation of Rome I and II, here with respect to the terminology of the two Regulations which in the French version in particular differs with respect to the use of the term ‘lois de police’ (Article 9 Rome I) and ‘dispositions impératives dérogatoires’ (Article 16 Rome II). The lois de police of Rome I (albeit with respect to the Rome Convention 1980) had already been interpreted in Unamar, leading to the first of the two conditions discussed below.
The Court effectively held there is little limit content-wise to the possibility for courts to invoke the lois de police /overriding mandatory law provision of Article 9 Rome II. Despite Article 15 Rome II verbatim mentioning limitation periods as being covered by the lex causae (but see the confusion on that reported in my post on Kik this week), limitation periods foreseen in the lex fori may be given priority.
This is subject to two conditions:
firstly, the national court cannot interpret any odd lex fori provision as being covered by the lois de police exception: here the Court re-emphasises the Rome I /II parallel by making the Unamar test apply to Rome II: at 31: ‘the referring court must find, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that provision was adopted, that it is of such importance in the national legal order that it justifies a departure from the applicable law.’ Here, the fact that limitation periods are mentioned in so many words in Article 15, comes into play: at 34: given that express reference, the application of the overriding mandatory law exception ‘would require the identification of particularly important reasons, such as a manifest infringement of the right to an effective remedy and to effective judicial protection arising from the application of the law designated as applicable pursuant to Article 4 of the Rome II Regulation.’
secondly, and of course redundantly but worth re-emphasising: the rule at issue must not have been harmonised by secondary EU law. As Alistair Kinley points out, the Motor Insurance Directive (MID) 2009/103 is currently being amended and a limitation period of minimum 4 years is being suggested – subject even to gold plating. That latter prospect of course opens up all sorts of interesting discussions particularly viz Article 3(4) Rome I.
(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.8, Heading 18.104.22.168.
Spring v MOD and Evangelisches Krankenhaus Bielefeld. Joinder (based on Article 8(1) Bru I Recast) ultimately fails given limitation period in the lex causae.
 EWHC 3012 (QB) Spring v MDO and Evengelisches Krankenhaus Bielefeld is unreported as far as I can tell (and I have checked repeatedly). Thank you Max Archer for flagging the case and for sending me copy of judgment a few months back. (I am still chipping away at that queue).
In 1997, Claimant was stationed in Germany with the British Army. The Claimant very seriously fractured his right leg and ankle whilst off duty in Germany (the off duty element evidently having an impact – on duty injuries arguably might not have been ‘civil and commercial’). He was then treated at the Second Defendant’s hospital under an established arrangement for the treatment of UK service personnel between the First (the Ministry of Defence) and Second Defendants (the German hospital). Various complications later led to amputation.
The Brussels I Recast Regulation applies for claimant did not introduce the claim against the second defendant until after its entry into force: 18 years in fact after the surgery. This was the result of medical reports not suggesting until after July 2015 that the German hospital’s treatment has been substandard. Rome II ratione temporis does not apply given the timing of the events (alleged wrongful treatment leading to damage).
Yoxall M held that Article 8(1)’s conditions for anchoring /joinder were fulfilled, because of the risk of irreconcilable judgments (at 35). Even if the claim against the First Defendant is a claim based on employer’s liability whereas the claim against the Hospital is based on clinical negligence. Should the proceedings be separate there is a risk of the English and German courts reaching irreconcilable judgments on causation of loss. At 35: ‘It would be expedient for the claims to be heard together – so that all the factual evidence and expert evidence is heard by one court. In this way the real risk of irreconcilable judgments can be avoided.’
With reference to precedent, Master Yoxall emphasised that ‘in considering Article 8(1) and irreconcilable judgments a broad common sense approach is justified rather than an over-sophisticated analysis’ (at 36).
Yoxal M is entirely correct when he states at 37 that Article 8(1) does not include a requirement that the action brought against the different defendants have identical legal bases. For decisions to be regarded as contradictory the divergence must arise in the context of the same situation of law and fact (reference is made to C-98/06 Freeport).
Next however the court considers as a preliminary issue, the limitation period applying between claimant and the German defendant and holds that the Hospital have an arguable case that the claim is statute barred in German law (German expert evidence on the issue being divided). The latter is the lex causae for the material dispute (on the basis of English residual private international law), extending to limitation periods per Section 1(3) of the Foreign Limitations Period Act 1984 (nota bene partially as a result of the 1980 input by the Law Commission, and not entirely in line with traditional (or indeed US) interpretations of same). This ultmately sinks the joinder.
As a way forward for plaintiff, the Court suggests  EWCA Civ 1436 Masri. In this case the Court of Appeal essentially held that joinder on the basis of Article 8(1) may proceed even if litigation against the England-based defendants are not the same proceedings, but rather take place in separate action. Masri has not been backed up as far as I know, by European precedent: Clarke MR held it on the basis of the spirit of C-189/87 Kalfelis, not its letter. Moreover, how the German limitation periods would then apply is not an obvious issue, either.
An interesting case and I am pleased Max signalled it.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 22.214.171.124.
‘Reading’ Arica Victims v Boliden Mineral (I have a copy of the case, but not yet a link to ECLI or other database; however there’s a good uncommented summary of the judgment here] leaves me frustrated simply for my lack of understanding of Swedish. Luckily Matilda Hellstorm at Lindahl has good review here (including a hyperlink to her earlier posting which alerted me to the case in 2017).
Boliden Mineral exported toxic waste to Chile in the ’80s, prior to either Basel or EU or OECD restraints (or indeed bans) kicking in. A first issue for consideration was determination of lex causae. Rome II does not apply ratione temporis (it only applies to tortious events occurring after its date of entry into force) – residual Swedish private international law applies, which determined lex causae as lex loci damni. The Court found this to include statute of limitation. This would have been 10 years under Swedish law, and a more generous (in Matilda’s report undefined) period under Chilean law. Statute of limitation therefore following lex causae – not lex fori.
Despite this being good for claimants, the case nevertheless failed. The Swedish court found against liability (for the reasons listed in Matilda’s report). (With a small exception seemingly relating to negligence in seeing waste being uncovered). Proof of causality seems to have been the biggest factor in not finding liability.
Leave to appeal has been applied for.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 8.