Case Alert - [2017] EWCA Civ 1581
Court of Appeal holds that English court can allow addition of a claim which is time barred by the governing law identified by Rome I or Rome II
CPR r17.4 gives the English courts jurisdiction to allow the addition of a new claim to proceedings after the expiry of a time limit under "(i) the Limitation Act 1980; (ii) the Foreign Limitation Periods Act 1984; or any other enactment" (if the new claim arises out of the same (or substantially the same) facts which are already in issue). The issue in this case is whether CPR r17.4 applies where a claim is time barred under the governing law identified by the Rome I or Rome II Regulations.
As mentioned above, CPR r17.4 refers to a limitation period under the Foreign Limitation Periods Act 1984. That in turn provides that section 35 of the Limitation Act 1980 (the statutory provision to which CPRr17.4 gives effect) is disapplied where the law applicable to limitation is determined by Rome I or Rome II. The Court of Appeal noted that if the result was that the English court could no longer allow a new claim governed by foreign law under the Rome Regulations to be added, there would be "a lacuna", for no reason which is discernible from the statutory materials.
Although it only needed to decide the point on an obiter basis, the Court of Appeal held that claims where the governing law is identified by Rome I or Rome II do fall within CPR r17.4, on the basis that they fall within the scope of "any other enactment" under the rule. This construction allows all proceedings before the English court to be dealt with consistently.
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