KXL v Murphy [2016] EWHC 3102 (QB) – Applicable foreign law limitation provisions found to be compatible with public policy despite the absence of a discretionary power to extend time for commencement of proceedings.

The High Court has today handed down an important judgment dealing with the issues arising out of the provisions of the Foreign Limitation Periods Act 1984. The claims concerned assaults said to have been committed in Uganda but which were issued in this jurisdiction. The Defendants raised as a defence the provisions of the Ugandan Limitation Act 1959 (in essence, 3 years from reaching the age of majority at 18) whereby the claims were statute barred. It was common ground that the applicable law was Ugandan law so the issue came before the Court as a Preliminary Issue of law. The Claimants contended that although the lex causae was Ugandan law the content and operation of its limitation provisions were contrary to public policy and/or its operation would cause the Claimants undue hardship within the meaning of section 2 of the 1984 Act because Ugandan law made no provision for an extension of time on grounds identical or similar to section 33 of the English Limitation Act 1980.

Mr Justice Wilkie, in a careful and closely reasoned judgment ruled that the provisions of the Ugandan Limitation Act 1959 were not contrary to public policy as although some jurisdictions made provision a discretionary extension of time for the commencement of proceedings other jurisdictions did not and described the Claimants’ submissions in this regard as “bold”. The learned Judge similarly dismissed the argument that the Claimants had suffered undue hardship within the special meaning to be attributed to that term as it is found in section 2(2) of the 1984 Act, saying that he could answer that question with a clear “No”.

The Claimants have not sought permission to appeal.

The implications of this judgment are important in that they confirm that the provisions of the 1984 Act are still alive and well. The concept underlying the introduction of that Act was that the English courts should not take a parochial view of foreign law provisions and treat them as subordinate to English law. Instead the principle should be that the lex causae should determine all substantive law issues in a claim which occurred abroad, subject only to an ability on the part of an English court to find that the foreign law provision was contrary to public policy (a high threshold) or caused a particular claimant particular hardship beyond that which is inevitable if the foreign limitation provision is applied (a similarly high threshold).

A further consequence of this decision is that it may serve to dampen enthusiasm for forum shopping in the area of tort claims.

Laura Johnson appeared for D1; John Ross Q.C. and Matthew Chapman appeared for D2.

A copy of the full Judgment is available here