Johnson v Berentzen & Anor [2021] EWHC 1042 (QB) (26 April 2021)

Johnson v Berentzen & Anor [2021] EWHC 1042 (QB) (26 April 2021)

The applicable law for limitation is Scots law, which requires both issue and service of proceedings within the three-year period to interrupt limitation; as service was effected after expiry, the claim was time-barred. However, given the claimant's serious injuries, the near-settlement of the claim, lack of prejudice to the defendants, and the significant difficulties the claimant would face in pursuing an alternative claim against his solicitors, it is equitable to exercise the court's discretion under s.19A of the 1973 Act to allow the claim to proceed.

Citation
[2021] EWHC 1042 (QB)
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 (tort) – Preliminary Issue Trial / High Court (queen's Bench Division) – Determination of Limitation and Discretion to Extend Time
Outcome
Claim allowed to proceed out of time under s.19A of the Prescription and Limitation (Scotland) Act 1973; order for costs in the case.
Legal Topics
Limitation of Actions, Applicable Law Under Rome II Regulation, Discretion to Extend Limitation Period, Foreign Limitation Periods, Procedural Vs Substantive Law Distinction
Private International Law Personal Injury Conflict of Laws Limitation of Actions Applicable Law Under Rome II Regulation Discretion to Extend Limitation Period Foreign Limitation Periods Procedural Vs Substantive Law Distinction

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Parties

Kevin Michael Johnson

Claimant

Johannes Berentzen

First Defendant

Zurich Insurance Plc (UK)

Second Defendant

Procedural Posture

Personal Injury Claim (tort) – Preliminary Issue Trial / High Court (queen's Bench Division) – Determination of Limitation and Discretion to Extend Time

Legal Issues

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

Ratio Decidendi

The applicable law for limitation is Scots law, which requires both issue and service of proceedings within the three-year period to interrupt limitation; as service was effected after expiry, the claim was time-barred. However, given the claimant's serious injuries, the near-settlement of the claim, lack of prejudice to the defendants, and the significant difficulties the claimant would face in pursuing an alternative claim against his solicitors, it is equitable to exercise the court's discretion under s.19A of the 1973 Act to allow the claim to proceed.

Court Disposition

Claim allowed to proceed out of time under s.19A of the Prescription and Limitation (Scotland) Act 1973; order for costs in the case.

Orders

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