In cross-border litigation, the Rome II Regulation – which still applies in the UK, although now as “retained EU law” – provides that the applicable law shall govern matters such as liability and quantum as well as “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” (article 15(h) of the Regulation).
How this works where the limitation process or period also includes requirements about service – which is generally regarded as procedural and something for the law of the forum (ie the court with jurisdiction) rather than for the substantive applicable law – was examined recently in Johnson v Berentzen, a road traffic claim pursued in England by an English resident claimant against a German resident defendant and relating to an accident in Scotland.
Harry Roberts’s case arose out of brain damage sustained during his birth in Germany in June 2000. Infant brain injury cases can be among the most expensive claims if, as is usual, there is a high annual care need and a lengthy life expectancy. This case has added complications because of the cross-border setting and because of a dispute on limitation despite the claimant’s minority.
Just over a year ago, the High Court delivered its decision in Pickard and Marshall v Generali and others. The case involved a road traffic accident in France in which two English residents, Marshall and Pickard, were injured (Mr Marshall died from his injuries) in a collision caused by an uninsured French driver colliding with Mr Pickard’s stationary car (insured with RSA) and forcing it against another French vehicle (insured with Generali). The question of the applicable law was appealed and a decision on the point was given on 19 January 2017.