Is the question of when limitation expires procedural or substantive?
The case of Pandya v Intersalonika General Insurance Co SA  EWHC 273 (QB) has recently addressed just that issue.
The question was dealt with as a preliminary issue in the case. The defendant argued that the claimant’s case should be struck out on the basis it was time-barred and that service of the claim should be treated as substantive rather than procedural law.
Should service fall under Article 1(3) of Rome II, which would be lex fori or under Article 15(h) which would be lex causae?
The case involved a UK national injured whilst crossing a road in Kos. The claimant had issued proceedings against the defendant’s Greek insurance company.
The Greek limitation period is five years for filing and service of the claim. It was the defendant’s position that as the proceedings had not actually been served within that five year period, the claim should be time barred. The claimant was of the view that as the claim had been issued within the Greek limitation period, under English procedural rules, the fact it had not been served, was not an issue and that service should fall within English procedural rules.
It was agreed that under Rome II the applicable law to the issue of liability was Greek law and that English law was applicable to procedure and evidence.
The expert evidence before the court was that, under Greek law on limitation, the claim had to be both filed and served within the five year period.
The claimant maintained that service of the claim was procedural and as such English procedural law should apply to service.
The defendant took a different view, arguing that both filing and service were included within the Greek law on limitation and both issues were therefore substantive law; service could not be considered as procedure under English law.
The judge agreed with the defendant’s position and that service of the claim could not be separated from the Greek law on limitation which required filing and service within the five year period. It could not be right that there was a different limitation period in England for cases in which Greek law was applicable.
Unfortunately, this meant the claimant’s case was time-barred. She was refused permission to appeal.
It is therefore clear that under Rome II all matters relating to limitation should be subject to the substantive applicable law of the tort.