Blurred lines: relating back in foreign law
1. This article considers the vexed question of whether the doctrine of “relation back” has any application in claims where a foreign law applies pursuant to Rome I or Rome II. In essence this question is comprised of two (related) sub-issues:
a) First, what is the legal mechanism(s) by which “relation back” has effect?
b) Secondly, can that legal mechanism(s) viably be characterised as “procedural” in nature for the purposes of Rome I and Rome II?
2. These issues raise difficult problems. Indeed, in the last six years they have given rise to no less than four conflicting High Court decisions, and it is clear that the law has yet to arrive at a conclusive answer: see, e.g., Steenbock Newco 10 SARL & Anor v Formal Holdings Ltd & Ors [2024] EWHC 1160 (Comm), paras 40-43, 127. The ostensibly simple aim of this paper is to set out the law as it presently stands.
Part 1: first principles and the basic dilemma
“Relation Back” under the LA 1980
3. In the parlance of English law, the doctrine of “relation back” is generally taken as reference to the statutory mechanism contained in section 35 of the Limitation Act 1980 (“LA 1980”). In broad terms, section 35(1)(b) applies so that any new claim made in the course of any action shall be deemed to be a separate action and (crucially) to have been commenced on the same date as the original action. Thus, the joinder or the amendment ‘relates back’ to the time the original proceedings were commenced.
4. The most striking feature of the “relation back” doctrine is undoubtedly its interaction with the law of limitation. In Ballinger v Mercer Ltd [2014] EWCA Civ 996, Tomlinson LJ explained the interaction in these terms (para 25):
“It must be borne in mind that the context of the debate is the doctrine of relation back introduced by section 35(1) of the Limitation Act 1980. If a new claim is permitted by way of amendment it is treated as having been made by a separate action commenced on the same date as the original action. So where an amendment is permitted to introduce a new claim which was in time at the date of the commencement of the action but arguably out of time on the date on which permission to amend is granted, the defendant is thereafter precluded from reliance at trial on the arguable limitation defence.”
5. Section 35(3) enables “rules of court” to allow a joinder and/or amendment to ‘relate back’ to the time the proceedings were commenced back, notwithstanding the existing of a limitation defence. However, those “rules of court” are required to give effect to certain minimum conditions which must be met before the doctrine of “relation back” can apply: section 35(4)-(5). The relevant rules of court are CPR r 17.4 and 19.6.
Rome I and Rome II
6. For claims which are subject to a foreign law, the historic position was that section 35 of the LA 1980 had overriding effect in claims involving foreign law by virtue of section 1(3) of the Foreign Limitation Periods Act 1984 (“FLPA 1984”).
7. In 2009, however, the Rome Regulations passed into force.
8. Under both instruments, the foreign applicable law governs issues of (broadly) substantive law and limitation (fn1), whereas matters of “evidence and procedure” (fn2) are determined in accordance with the law of the forum (here, English law).
9. It can be noted that the unusual nature of section 35 of the LA 1980 poses particularly acute problems for this typology (fn3). On one view, section 35 of the LA 1980 is inextricably bound up with the “rules of court” it enables and is in that respect procedural. On another view, it is a statute and thus clearly falls within the bounds of English substantive law. As will be seen, this dual nature is an important source of the conceptual difficulty which has arisen in this context.
10. Shortly after the introduction of the Rome Regulations, a new section 8 was added to the FLPA 1984 in 2009 (fn4). Section 8(1) provides that:
“Where in proceedings in England and Wales the law of a country other than England and Wales falls to be taken into account by virtue of any choice of law rule contained in the Rome I Regulation or the Rome II Regulation, sections 1, 1ZA, 2 and 4 above shall not apply in respect of that matter.”
11. The problem posed is obvious: if a foreign law applies pursuant to Rome I or Rome II, then section 8(1) disapplies section 1 of the FLPA 1980. However, section 1 of the FLPA 1980 was also the mechanism by which section 35 of the LA 1980 applies to proceedings governed by foreign law. Accordingly, if “relation back” only takes effect pursuant to section 35 of the LA 1980, it would seem to follow that it has no application in claims where Rome I or Rome II designate a foreign governing law. That is the central dilemma. As noted above, it involves two questions:
a) First, what is the legal mechanism(s) by which “relation back” has effect?
b) Second, can that legal mechanism(s) be characterised as one which is “procedural” in nature for the purposes of Rome I and Rome II?
Part 2: the authorities
12. This dilemma has been considered in several cases. In chronological order, they are:
(1) PJSC Tatneft v Bogolyubov & Ors [2018] 4 WLR 14;
(2) Vilca v Xstrata Limited [2018] EWHC 27 (QB);
(3) Brownlie v FS Cairo [2019] EWHC 2533 (QB);
(4) Qatar Airways Group v Middle Eastern News FZ-LLC [2021] EWHC 2180 (QB);
(5) Lonestar Communications Corp. LLC v Kaye & Ors [2023] EWHC 421 (Comm).
13. It is tentatively suggested that the extant uncertainty in the case law is largely a product of the unusual circumstances in which the issues have arisen for determination. These circumstances are relevant to the rules of stare decisis, which, in this context, assume particular significance when seeking to identify the current legal position. They have accordingly been set out in more detail than would otherwise be necessary.
Tatneft
14. The decision is Tatneft is the necessary starting point of the analysis. It is the only occasion where the Court of Appeal has considered the interaction between the doctrine of “relation back” and the Rome Regulations. It merits close analysis, not least because there is extant uncertainty as to what exactly was decided.
15. The case was concerned with the alleged misappropriation of funds from a business specialising in oil production. Russian law applied to the claims pursuant to Rome II.
16. The defendants successfully applied to set-aside an order permitting service out and for summary judgment. The claimant unsuccessfully applied to amend its statement of case. In due course, the claimant appealed those decisions.
17. On appeal, the claimant sought permission to amend its amendment application notice and grounds of appeal to contend that even if the draft amendments involved a new case of action, permission to be amend should be given pursuant to CPR 17.4. The legal issue posed was “whether under CPR r 17.4 the court has jurisdiction to permit the addition of a claim which is barred by limitation pursuant to the governing law identified by Rome II” (para 67). It appears that this issue “only arose shortly before the hearing” and that it was “not as fully researched at the time as it could have been” given “the plethora of other issues” (para 68). Moreover, in light of the finding that the draft amendments were bound to fail on causation grounds, strictly speaking it was not necessary to determine the issue. In any event, as the issue raised “matters of law of some importance” (para 66), the point was addressed on an obiter basis.
18. The defendant contended that the effect of section 8(1) of the FLPA 1984 was to deprive the court of the power to grant an amendment under CPR 17.4(1) in cases governed by Rome II (para 72-73). More particularly, section 8(1) expressly disapplied section 35 of the LA 1980 and “unless section 35 [could] be relied upon”, there would be “no relation back and an amendment after the expiry of limitation would be refused as it would serve no useful purpose given the availability of the limitation defence” (para 71). At para 73, Longmore LJ noted:
“The effect of the defendants’ argument is that there has been a significant change in law following the introduction of Rome I and Rome II by which the court has been deprived of an important procedural power in cases governed by foreign law under the Rome Regulations. No reason for this change can be discerned from the statutory materials provided, nor have the defendants been able to identify or even suggest any such reason. It is simply a lacuna.”
19. The claimant raised two arguments to “avoid such a lacuna”. The first was rejected (para 76) and it is not necessary to consider it further. The second was based on passages from Dickinson, The Rome II Regulation: The Law Applicable to Non-Contractual Obligations (2010). It is worth reproducing those passages in full:
“14.51 … Under section 1(3) of the 1984 Act, section 35 of the 1980 Act and the Civil Procedure Rules that give effect to it apply equally to foreign time limits which fall to be applied under the 1984 Act. Section 35 does not, however, apply to new claims brought following expiry of any foreign limitation period that applies under article 15(h) of the Rome II Regulation. In the circumstances, it is unclear how the powers that the English court has to amend existing claims, by adding new claims or new parties, will apply to new claims falling within the scope of the regulation. On a strict view, it could be argued that there is no possibility of an amendment to introduce a new claim or a new party after expiry of the primary limitation period otherwise than by reference to section 35 of the 1980 Act, which does not apply here…
14.52 The Civil Procedure Rules, however, expressly permit amendments to introduce a new claim or to change the parties to an existing claim following expiry of a period of limitation under ‘any other enactment which allows such an amendment, or under which such an amendment is allowed’, and this has not only been upheld as a legitimate exercise of the rule making power but has also been construed broadly so as to be capable of referring to a limitation regime that does not either expressly or impliedly prohibit amendments of this character. On this basis, the counter-argument can be presented that a foreign limitation regime applicable under article 15(h) ought to be treated, whether standing alone or coupled with the regulation, as a relevant ‘enactment’ for these purposes so as to enable the English court to allow an amendment after expiry of the applicable foreign limitation period if (a) an amendment of this kind is permitted or, at the very least, is not expressly or impliedly prohibited under the applicable foreign law, and (b) the other conditions laid down by the Civil Procedure Rules are satisfied.”
20. It is instructive to unpack that analysis. CPR 17.4 provides, so far as material:
“This rule applies where –
(a) a party applies to amend their statement of case in one of the ways mentioned in this rule; and
(b)a period of limitation has expired under—
(i)the Limitation Act 1980; or
(ii)the Foreign Limitation Periods Act 1984; or
(iii)any other enactment which allows such an amendment, or under which such an amendment is allowed.”
21. On this argument, the limitation period designated by the foreign law pursuant to Rome I and Rome II constitutes an “enactment” for the purposes of CPR 17.4(1)(b)(iii), thus engaging the rule. If CPR 17.4(1)(a) is met and the foreign limitation has expired, the question then turns to whether the additional requirements in CPR 17.4 are made out. If they are, the Court has the power to grant the amendment.
22. The Court agreed that the Rome Regulations were “enactments” for the purpose of CPR 17.4(1)(b)(iii): paras 80 and 83. It also agreed that “the court has the power to allow a new claim under CPR r 17.4”, even where a foreign law applies per Rome I or Rome II. Unfortunately, however, the agreement was limited to the question of whether there is jurisdiction to make an amendment under CPR 17.4(1). There was no substantive engagement with whether (and, if so, on what basis) any such amendment would “relate back” to the time proceedings were commenced. As will be seen, this ambiguity has been a key source of the problems which have emerged subsequently.
Vilca
23. In Vilca, a group of Peruvian citizens sought damages for personal injuries caused by the national police during a protest at the Tintaya mine in Espinar. The claims were governed by Peruvian law pursuant to Rome II. At the time of issuance, the claims were advanced under English law. It was also common ground that, unless interrupted, the Peruvian limitation period expired on 29 May 2014. All of the claims in Peruvian law were added by amendment outside of that limitation period (para 50). In due course, a preliminary issue hearing was directed as to whether the claims pleaded under Peruvian law were time-barred.
24. The claimants submitted that “the English Court has validly exercised its power pursuant to CPR 17.4(1)(b)(iii) to allow each amendment” and that “this has the effect that the claims in Peruvian law made pursuant to those amendments were brought on the same date as the original claim and, therefore, within time” (para 52(ii)). It also appears the Claimants submitted that section 35(1) of the LA 1980 took effect upon that amendment being granted, though this point was ultimately abandoned (para 53).
25. In response, the defendants submitted that “the amendments were not introduced pursuant to CPR 17.4(1)(b)(iii) but under CPR 17.1(2)(A)” and that in any event “CPR 17.4(1)(b)(iii) does not give rise to relating back either by implicating s. 35 of the Limitation Act (which is now common ground) or otherwise (which is not)” (emphasis added). It is important to note that the former issue was conceded.
26. In support of their submission, the claimants relied on Tatneft. Stuart-Smith J (as he then was) rejected the suggestion that the obiter dicta in that case provided any support for the claimants’ position. It is worth setting out paras 111 to 112 in full:
“There is nothing in the terms of CPR 17.4 or the [FLPA 1984] or elsewhere that introduces a concept of relating back to claims introduced by amendment pursuant to CPR 17.4(1)(b)(iii). The Court of Appeal in Tatneft gave no support to a submission that claims introduced by amendment pursuant to CPR 17.4(1)(b)(iii) related back to the date of the original proceedings. Their obiter ruling was to the opposite effect. In response to a submission that the Court should in any event have refused permission to amend as a matter of discretion, the Court said at [86]:
“In all the circumstances, it would not have been just to refuse to allow Tatneft to advance an arguable claim and thereby prevent it from advancing any claim. The Respondents would still have had their limitation defence open to them. If it is a good defence it would defeat the claim.” [emphasis added].
In the absence of any statutory or other provision suggesting that such claims would relate back, and in the light of [86] of Tatneft, I reject the Claimants’ submission that the amendments to introduce the Peruvian law claims in this case related back to the date on which proceedings were originally issued or served…”.
27. There are three points of note. First, it was expressly determined that the doctrine of “relation back” does not apply in cases where a foreign law applies pursuant to Rome II. That was because “relation back” requires the application of section 35 of the LA 1980, but that provision has no application due to section 8(1) of the FLPA 1984. Second, the decision does not address the argument that “relation back” is intrinsic to CPR 17.4 as a matter of legal necessity. The analysis was focused primarily on the absence of any express indication that CPR 17.4 brought “relation back” with it. Third, the analysis does not address the decision of Parsons, as cited in Tatneft.
Brownlie
28. This case arose from a fatal accident during a holiday in Egypt. The contractual and tortious claims were governed by Egyptian law pursuant to Rome I and Rome II.
29. The claimant applied to substitute a party for the existing defendant and for permission to serve the claim form out of the jurisdiction on the new party. An issue arose as to whether the claims were time-barred under Egyptian law.
30. It was common ground that if permission was granted, section 35(1)(b) of the LA 1980 would not operate to deem the claims against the new party to have been started on the same date as the original action due to section 8(1) of the FLPA 1984 (para 47). The decision in Vilca was cited in support. It appears that there was no suggestion that “relation back” could take effect via any other route.
31. Nicol J considered that the non-application of “relation back” implicated the test that a clamant was required to meet on an application to amend where there was a dispute as to whether, or not, limitation had expired: paras 48 and 49. More specifically, in the absence of “relation back”, the question arose as to whether, or not, the claimant should have an “enhanced burden of proof” in relation to the existence of an limitation defence: para 51. The authority for that burden of proof was, on Nicol J’s analysis, “critically dependent on the application of the principle of relation back” (para 51).
32. However, the effect of section 8 of the FLPA 1984 gave rise to a further issue in relation to (what was then) CPR 19.5(1) and the jurisdiction to grant the amendment. CPR 19.6 (previously CPR 19.5(1)) provides:
“(1) This rule applies to a change of parties after the end of a period of limitation under–
(a)the Limitation Act 1980 ;
(b)the Foreign Limitation Periods Act 1984 ; or
(c)any other enactment which allows such a change, or under which such a change is allowed.”
33. It was, again, common ground that section 8 of the FLPA 1984 meant that the claimant could not rely on CPR 19.6(1)(b). However, it was also accepted that Rome I and Rome II fell within the term enactment: see Tatneft. At para 35, Nicol J said this:
“While neither Rome I nor Rome II expressly ‘allow such a change [of parties after the end of the limitation period]’, each Regulation reserves to the law of the forum matters of procedure (See Rome I Article 1(3) and Rome II Article 1(3)) and, in this sense, the two Regulations are examples of enactments ‘under which such a change is allowed’ in the sense of not prohibited – see Tatneft at [83]. I recognise that the views of the Court of Appeal in Tatneft on these issues were obiter (see [66]) but they are nonetheless persuasive and I, with respect, agree with them.”
34. Accordingly, Nicol J held that there was (in principle) jurisdiction to grant the amendment even though limitation had expired. However, any amendment would not benefit from the principle of relation back and it appears the contrary was not argued.
Qatar Airways Group
35. The decision in Qatar Airways Group constituted a significant departure from the consensus which had emerged following Tatneft, Vilca and Brownlie.
36. The claim arose from the economic blockade imposed on Qatar in June 2017 by Saudi Arabia, the UAE, Bahrain and Egypt. The claimant owned and operated Qatar’s flag air carrier. It was alleged that the defendants transmitted a film concerning the blockade which was, intentionally and foreseeably, damaging to the claimant because it deliberately conveyed false and misleading messages. The claims in conspiracy and unlawful interference were claims which fell within Rome II.
37. The claim was issued on 9 August 2018. The claim form was amended without permission of the Court on 27 November 2018 pursuant to CPR 17.1, so as to add D4 as a party. The defendants argued that the claim against D4 was time-barred and, accordingly, that the use of CPR 17.1 rendered the amendment a nullity. A null addition to a claim form, it was submitted, self-evidently had no prospect of success.
38. Accordingly, the claimant applied to disapply the limitation period under s.4A of the LA 1980 pursuant to section 32A. That application was granted on the first day of the hearing: it was held that the “limitation period would be disapplied in all claims whether in malicious falsehood, conspiracy and unlawful interferences and includes claims to which foreign law is applicable” (para 1).
39. However, as a fall back, the claimant had also applied under CPR 17.4 and CPR 19.5 (now CPR 19.6) for permission to amend to the extent necessary to enable it to pursue the time-barred claims against D4. That application was premised on the proposition that any amendment would benefit from the principle of “relation back”.
40. Unfortunately, this application was not opposed by the defendants in as much as they did not appear at the hearing (para 4). Accordingly, the ruling was not informed by argument in opposition, though it was noted that the claimant’s counsel drew the Court’s “attention to all material points, particularly case law” (para 4).
41. Saini J had no hesitation in granting the CPR 17.4 application. However, he was also required to address whether the principle of “relation back” applied.
42. At para 14, Saini J held that:
“….“relation back” does apply under Rome II. Although there may be a number of routes which lead to this conclusion, in my judgment the answer is provided by the Court of Appeal’s obiter decision in Tatneft…and it would not be appropriate in an uncontested hearing to venture further.”
43. At para 15, Saini J reasoned that:
“Periods of limitation under the Rome Regulations must be understood as periods of limitation to which CPR 17.4 and 19.5 apply. This is because they are within CPR 17.4(b)(iii) and CPR 19.1(c), as reasoned in Tatneft. CPR 17.4 and CPR 19.5 inherently operate on the basis of “relation back” and so bring “relation back” with them. Thus, under the RSC predecessors of CPR 17.4 and 19.5, Order 20 r2-5, it was held that amendment under such rules implicitly brought with it “relation back” (even without an underlying statute like s.35(1)(b) of the 1980 Act to create relation back), and the same is the case for the CPR: see Parsons v George [2004] 1 WLR 3264 at [11]-[12], [16]-[18] [24]-[26], [30], [34]-[35].”
44. At paras 17 to 19, Saini J de-constructed the obiter remarks in Tatneft. It is, again, useful to set out this analysis in full:
“In Taftneft, the Court of Appeal concluded that: (i) the Rome II Regulation was an “enactment” for the purposes of CPR 17.4(b)(iii) and so fell within CPR 17.4 because it was an enactment which provided for the application of limitation rules, but which “allowed” amendment, in the sense that it left amendment to English rules of law and notably CPR 17.4/19.5; and (ii) consequently, the amendments could be permitted under CPR 17.4 even though they were being made after expiry of the foreign law limitation period applied under Rome II, provided that they satisfied the conditions of CPR 17.4 as to “substantially the same facts and issues”. The same principle must follow for CPR 19.5(1)(c)), by parity of reasoning.
While the Court of Appeal did not spell out word for word that this meant “relation back” applied, this was to be the meaning of their decision. I note at
[71] the context of the reasoning was that without “relation back”, amendment under CPR 17.4 would be pointless and would be refused. At [73], the Court of Appeal then observed that before Rome II amendments post limitation worked the same way for foreign law as English law, and that the effect of the Respondent’s arguments in that case would be to deprive the court of what it called an “important procedural power”, and create a major lacuna for which no reason had been identified. That “important” power is a reference to CPR
17.4 including “relation back”; otherwise the power would be pointless. At [83], the Court of Appeal observed its decision would “enable all proceedings before the English courts to be dealt with consistently as a matter of procedure” (which absence of “relation back” under Rome II would not produce).
Further, I note that the Court of Appeal (see paragraphs 81-83) was reasoning by reference to Parsons v George which as noted above also proceeded on the basis that CPR 17.4/19.5 and their RSC predecessors brought with them relation back.”
45. It can be noted that this analysis is diametrically opposed to that in Vilca. At para 21, Saini J addressed the analysis in Vilca in these terms:
“I am satisfied, however, that when one considers the full reasoning in Taftneft, the point appears to have been incompletely argued in Vilca and concessions were made which seem to be doubtful. I am not bound by that decision and base my conclusion that relation back applies on the reasoning of the Court of Appeal and the principles emerging from such reasoning, which I have described.”
46. One point to note is that the decision in Brownlie does not appear to have been referred to Saini J. It has subsequently been argued that the decision was per incuriam as a result of this alleged omission: see Steenbock at paras 40 to 41.
Lonestar
47. In this case the claimant (a provider of cellular communication and internet services in Liberia) alleged it was the victim of cyber-attacks by the defendants and sought to recover damages from them under (inter alia) Liberian law.
48. The only defendant who actively participated in the trial was the fifth defendant (“Orange Liberia”). However, another defendant (“Cellcom BVI”) had advanced a limitation defence on the basis that “the claim on the action of damages for wrong” was only introduced by amendment on 29 September 2021 and was time-barred.
49. At para 225, Foxton J determined as follows:
“I am satisfied that there is nothing in this point:
i) CPR 17.4 allows a court to add a new claim after a limitation period (including one applicable by virtue of FLPA 1984 or “any other enactment which allows such an amendment, or under which such an amendment is allowed”) has expired, provided the new claim “arises out of the same facts, or substantially the same facts” as those in respect of which the claimant has already claimed a remedy.
ii) It has been held that the Rome II Regulation falls within the phrase “any other enactment” for the purpose of CPR 17.4 , and that it allows an amendment for CPR 17.4 purposes ( PJS Tatneft v Bogolyubov [2017] EWCA Civ 1581, [77]- [81] and Qatar Airways Group QCSC v Middle Eastern News FZ-LLC [2021] EWHC 2180 (QB), [15]-[16]).
iii) If relevant, Counsellors Musu-Scott and Padmore accept that “relation back” is also allowed under Liberian law, by virtue of s.9.10(4) of the 1972 Act.
iv) I am satisfied that the action of damages for wrong arises, or substantially arises, out of the claims which Lonestar had already pleaded.”
50. Accordingly, Foxton J adopted Saini J’s analysis in Qatar Airways Group. However, he did not explicitly address why he considered Vilca to be wrongly decided.
Part 3: synthesis
51. In Steenbock, the issue arose again for determination, but unfortunately Byran J declined to rule on it given the decision to disallow the amendment in any event. At any rate, the parties’ competing submissions constitute a helpful summary of the current state of play. The defendants’ position was that (paras 40 to 41):
a) By reason of section 8 of the FLPA 1984, where foreign law applies pursuant to the application of Rome I or Rome II, then neither relation back nor CPR 17.4 applies to such claims: Vilca and Brownlie.
b) Qatar Airways Group was wrongly decided per incuriam because Brownlie was not cited. It was also decided in circumstances where the defendants were not represented and the Court did not hear contrary argument.
c) In Lonestar, it was not necessary to decide the point, but to the extent that the principle was doubted, this was based on the decision in Qatar Airways Group and that decision was, again, per incuriam.
52. The claimants’ position was that (paras 42 to 43):
a) It was accepted that the express relation back rule created by section 35 of the LA 1980 had no effect in claims where the applicable law is determined by Rome I and Rome II due to section 8 of the FLPA 1984.
b) However, periods of limitation under Rome I and Rome II fall within CPR 17.4(1)(b)(iii) as an “enactment”: Tatneft. Further, whilst CPR 17.4 does not expressly state that relation back applies to its provision, it inherently operates on the basis of relation back and accordingly bring the rule with intis provisions: Qatar Airways Group, para 15; Lonestar, para 226.
c) This analysis was supported by the obiter reasoning in Tatneft. It is also supported by the decision in Parsons, where it was held, under the RSC predecessor of CPR 17.4 (and 19.6) that an amendment under such rules implicitly brought with it “relation back”.
53. It is suggested that the resolution of this puzzle requires consideration of both (i) the decision in Parsons and (ii) the rules of stare decisis.
Parsons
54. In this case, the claimant was applying for a new tenancy under Part II of the LTA 1954. The claimant sought to add or substitute a party after the end of the period specified by section 29(3) of the LTA 1954 which was, for all intents and purposes, a limitation period. For ease of reference, CPR 19.5(1) (as it was then) provided that:
“This rule applies to a change of parties after the end of a period of limitation under –
a) The Limitation Act 1980;
b) The Foreign Limitation Periods Act 1984; or
c) Any other enactment which allows such a change, or under which such a change is allowed.”
55. The Judge at first instance decided that there was no power to permit the substitution after the end of the period specified by section 29(3) of the LTA 1954. It was held that this was not an “enactment” for the purposes of CPR 19.5(1)(c) (above) because the LTA 1954 contained “no provision allowing or disallowing the substitution or adding of parties”. Accordingly, it was not an “enactment which allows” the changes addressed in CPR 19.5 (now CPR 19.6), namely, substitution or joinder post-expiry of limitation. The issue required the Court to decide whether the jurisdiction to allow substitution or joinder post-expiry of limitation was either:
(a) exclusively sourced in the LA 1980 (i.e., section 35); the FLPA 1984 (which, at that point, was also subject to section 35 of the LA 1980: see above); and/or the relevant “enactment”, provided that enactment made provision for such changes; or
(b) sourced in both the above and the CPR on a freestanding basis.
56. In short, if (b) was correct, then the Judge’s decision at first instance was wrong: even though the LA 1954 did not permit such changes, CPR 19.5(1) did, and this provided a freestanding jurisdiction to grant the substitution post-expiry of limitation.
57. An important issue in this case related to why the CPRC, when drafting CPR 19.5(1) (as it then was) had removed a provision from the rule which preceded it. For ease of reference, the earlier rule was framed in these terms (emphasis added):
“This rule applies to a change of parties after the end of a period of limitation under – (a) the Limitation Act 1980; (b) the Foreign Limitation Periods Act 1984; (c) section 1980 of the Merchant Shipping Act 1995; or (d) any other statutory provision.”
It appears to have been suggested that the removal of the underlined provision and the drafting of a more prescribed provision in CPR 19.5(1) (“Any other enactment which allows such a change, or under which such a change is allowed”) was suggestive of an intention on the part of CPRC to curtail the Court’s jurisdiction. Following an exhaustive analysis of the history of CPR 19.5(1), Dyson LJ said this:
“25. It would be surprising if the effect of the CPR were to deny to the Court jurisdiction to allow the addition or substitution of parties after the expiry of a relevant limitation period in circumstances where the court had previously enjoyed such jurisdiction. And yet that is the effect of the judge’s decision in the present case. There is nothing to indicate that this was the intention of the Civil Procedure Rule Committee (the “CPRC”)…
26. … There could be no doubt that [under the old rule], the Court would have had jurisdiction to allow the amendment sought in the present case. Why did the CPRC amend rule 19.5(1)? …. In my view, the answer is that paragraph 1(d) (of the old rule) was expressed in such wide terms that it could be interpreted as giving the court jurisdiction to allow such a change of parties after the end of a limitation period even if the relevant statute did not permit this to be done. The object of the new paragraph 1(c) was to ensure that the court cannot allow such a change of parties after the end of a limitation period if the statute which prescribes the limitation period does not allow that to be done…”
59. As there were no grounds for supposing that the CPRC intended to change the rules to deny the Court the jurisdiction previously enjoyed, Dyson LJ approached the construction of CPR 19.5(1) “on the basis that, if at all possible, it should be construed as not having that effect”: para 29. In addition, Dyson LJ noted that, if the Judge’s interpretation was correct, it would allow no content to CPR 19.5(1)(c) (as it then was), because of those statutes which designated a limitation period, only one was found which made provision for joinder post-expiry of limitation: para 31. It was held that CPR 19.5(1)(c) should be interpreted as referring to any enactment which allows or which does not prohibit a change of parties after expiry of a limitation period: para 35.
60. On the basis of that wider construction of the rule, Dyson LJ allowed the appeal and granted the application to amend. Whilst not specifically addressed, it was clearly implicit that CPR 19.5 (as it then was) brought relation back with it, given the earlier finding that “section 35” introduces a “statutory relation back”, “if the limitation period is one prescribed by the 1980 Act itself”: para 18. In other cases, therefore, the position seems to be that “relation back” would take effect by virtue of CPR 17.4 and 19.6.
The rules of ‘stare decisis’
61. The extant uncertainty in the case law is, it is suggested, largely attributable to the circumstances in which the issue has arisen for determination: in Tatneft the question of whether “relation back” would apply to any amendment granted under CPR 7.4 was not explicitly addressed, and the issues that were explicitly addressed were addressed on an obiter basis; it appears that the analysis in Vilca was premised on a concession which, in Saini J’s view, was questionable (Qatar Airways Group, para 21); the decision in Brownlie adopted the analysis in Vilca; in Qatar Airways Group the Court did not have the benefit of adversarial argument on the point (it also appears that Brownlie may not have been cited); the Court also did not have the benefit of adversarial argument on the point in Lonestar and the decision was based on the analysis in Qatar Airways Group; and the decision in Parsons was not cited in Brownlie or Vilca.
62. In this somewhat unique context, the rules of stare decisis assume an unusual significance, particularly for those litigating these issues before first instance judges. A helpful starting point is the meaning of “ratio decidendi”. In R (Kadhim) v Brent LBC [2001] QB 955 Buxton LJ approved the statement of Professor Cross in Cross and Harris, Precedent in English Law (4th edition) 1991 page 72:
“The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him.”
63. On “issues of law”, High Court judges are bound by the decisions of the Court of Appeal and Supreme Court: Willers v Joyce and Another (No.2) [2018] AC 843 at para 5. The rules of precedent apply in nuanced form to judges of co-ordinate jurisdiction. In Willers, Lord Neuberger explained the position in these terms:
“So far as the High Court is concerned, puisne judges are not technically bound by the decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so. And, where a first instance Judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary; see Patel v Secretary of State for the Home Department [2013] 1 WLR 63, para 59”.
64. So, what do those principles yield when applied to this particular body of case law? The first point is that the more recent decisions in Qatar Airways and Lonestar will present a significant hurdle for litigants seeking to establish that “relation back” has no application in cases where a foreign law applies pursuant to Rome I and Rome II; it is difficult to see any substantive errors in those analyses, let alone “cogent reasons” for why those decisions should not be followed. The second point is perhaps of more significance: depending on how the legal analysis in Parsons is construed, there is an argument to be made that any first instance judge would be compelled to accept the proposition that, where the limitation period is not governed by the LA 1980, the application of “relation back” is inherent in CPR 17.4 and 19.6, so that “relation back” applies even when section 35 of the LA 1980 does not. If that is correct, then this would have obvious significance in the context of this debate.
Conclusions
65. With these points in mind, we can return to the questions posed at the outset:
a) First, what is the legal mechanism(s) by which “relation back” has effect?
b) Second, can that legal mechanism(s) viably be characterised as “procedural” in nature for the purposes of Rome I and Rome II?
66. The answer to the first question seems to be: “it depends”. More particularly, it depends on whether the limitation period is prescribed by the LA 1980 (in which case relation back takes effect pursuant to section 35) or by some other “enactment” (in which case it is inherent in CPR 17.4 and/or 19.6): Parsons. Therefore, the answer to the second question is that if the limitation period is prescribed by a foreign law per Rome I or Rome II (as “enactments”), then the legal mechanism by which “relation back” takes effect is procedural in nature, because it derives solely from the provisions in the CPR.
67. It would follow from these propositions (assuming they are correct) that the doctrine of “relation back” does apply where the applicable law is governed by Rome I or Rome II. On the other hand, this is plainly an area where there are likely to be arguments both ways, and it is certainly an issue which would benefit from judicial input at the Court of Appeal level, particularly given its importance in claims involving a foreign applicable law. If readers have any queries arising out of the above, they should not hesitate to contact the author; he would be more than happy to discuss.
Footnotes:
[FN1] Article 12(1)(d), Rome 1; Article 15(h), Rome II.
[FN2] The process of determining whether any given issue is “procedural” or “substantive” often gives rise to significant analytical problems in any event: see, e.g., Nicholls & Ors v Mapfre Espana Companie de Seguros y Reaseguros SA [2024] EWCA Civ 718 (whether Spanish penalty interest provisions formed part of its substantive law of damages) and Pandya v Intersalonika General Insurance Company SA [2020] EWHC 273 (QB) (whether the procedure for filing and serving a claim were reserved to the lex fori). The decision in Pandya has in turn been subject to specific challenge (see, e.g., Johnson and Bravo & Ors v Amerisur Resources Limited [2023] EWHC 122 (KB)) and it appears that a challenge may still be mounted in the Court of Appeal: Dr Michael Jaffe & Anor v Greybull Capital LLP & Ors [2024] EWHC 2534 (Comm), para 352, footnote 4 (“there is a point which could be argued on any appeal as to whether English law determines the procedure for filing and serving a claim”).
[FN3] Article 1(3), Rome I; Article 1(3), Rome II.
[FN4] The Law Applicable to Non-Contractual Obligations (England and Wales and Northern Ireland) Regulations 2008 (SI 2008 No. 2986) and The Law Applicable to Contractual Obligations (England and Wales and Northern Ireland) Regulations 2009 (SI 2009 No. 3064).
