Johnson v Berentzen & Anor

Johnson v Berentzen & Anor

The claim was not commenced within the limitation period because, under Scots law as applied by Rome II Regulation, both issuing and serving the claim within three years were required to stop time running. Service occurred after the period expired. However, the court exercised its discretion under s.19A of the 1973 Act to allow the claim to proceed out of time, finding it equitable due to the claimant's serious injuries, lack of prejudice to the defendants, and the significant prejudice to the claimant if not allowed to proceed.

Parties
Claimant: Kevin Michael Johnson; First Defendant: Johannes Berentzen; Second Defendant: Zurich Insurance Plc (UK)
Jurisdiction
England and Wales
Judgment Date
26 April 2021
Procedural Posture
Personal Injury Claim (road Traffic Accident) / Trial of Preliminary Issues on Limitation and Discretion to Extend Time
Outcome
Claim allowed to proceed out of time under s.19A Prescription and Limitation (Scotland) Act 1973
Legal Topics
Limitation of Actions, Rome II Regulation, Foreign Limitation Periods Act 1984, Prescription and Limitation (scotland) Act 1973, Service of Proceedings, Discretion to Extend Limitation Period
Conflict of Laws Personal Injury Civil Procedure Limitation of Actions Rome II Regulation Foreign Limitation Periods Act 1984 Prescription and Limitation (scotland) Act 1973 Service of Proceedings +1 more

Case Brief

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Parties

Kevin Michael Johnson

Claimant

Johannes Berentzen

First Defendant

Zurich Insurance Plc (UK)

Second Defendant

Procedural Posture

Personal Injury Claim (road Traffic Accident) / Trial of Preliminary Issues on Limitation and Discretion to Extend Time

Legal Issues

  1. 1 Whether the claim was brought within the applicable limitation period under Scots law as required by Rome II Regulation
  2. 2 Whether service of proceedings is a procedural or substantive requirement under Rome II Regulation and Scots law
  3. 3 Whether the court should exercise its discretion under s.19A Prescription and Limitation (Scotland) Act 1973 to allow the claim to proceed out of time

Ratio Decidendi

The claim was not commenced within the limitation period because, under Scots law as applied by Rome II Regulation, both issuing and serving the claim within three years were required to stop time running. Service occurred after the period expired. However, the court exercised its discretion under s.19A of the 1973 Act to allow the claim to proceed out of time, finding it equitable due to the claimant's serious injuries, lack of prejudice to the defendants, and the significant prejudice to the claimant if not allowed to proceed.

Court Disposition

Claim allowed to proceed out of time under s.19A Prescription and Limitation (Scotland) Act 1973

Orders

  • The claim is permitted to proceed notwithstanding expiry of the limitation period.
  • Order for costs in the case in favour of the claimant.