Andres Fernando Bravo & Ors v Amerisur Resources Ltd [2023] EWHC 122 (KB)

“Art. 2341. A person who has committed an offence or fault which has caused damage to another, must provide compensation, without prejudice to the principal penalty that the law imposes for the fault or the offence committed. … Art.2356. As a general rule, any damage that can be attributed to the malice or negligence of another person must be repaired by that person. The following are especially obliged to make reparation: 1. Whomsoever recklessly fires a firearm. 2. Whomsoever removes the slabs covering a ditch or sewage pipes or uncovers them in a street or roadway, without taking the precautions necessary to prevent those who may transit there by day or night from falling. 3. Whomsoever has a duty to build or repair water pipes or channels that cross a road and maintains it in a state that might damage road users. … Article 2535. The prescription that extinguishes external actions and rights only requires a certain period of time during which such actions have not been exercised. This time is counted from when the obligation has become enforceable. Article 2536. <prescripción of executive and ordinary actions>. Executive action has a prescription (prescripción) of five (5) years. And ordinary action has a prescription (prescripción) of ten (10) years. The executive action becomes an ordinary action after a period of five (5) years, and after that it will only be enforceable for another five (5) years. Once a prescripción is interrupted or waived, the respective term shall start to be counted again.”

“Article 82. Requirements of a Claim. Unless otherwise provided, the claim for which any proceedings are brought must meet the following requirements: 1. The naming of the judge to whom it is presented. 2. The name and address of the parties and, if the parties cannot appear on their own behalf, those authorised to act in their name. The identification number of the claimant and the claimant’s representative and that of the defendant, if known, must be indicated. In the case of legal entities or autonomous assets, this will be the tax identification number (NIT). 3. The name of the claimant’s legal representative, if applicable. 4. What is claimed, worded in a clear and precise manner. 5. The facts that serve as the basis for the claims, these being duly determined, classified and numbered. 6. The application for the evidence intended to be shown, indicating the documents that the defendant has in its possession, in order for it to provide such evidence. 7. The sworn appraisal, where necessary. 8. Legal basis. 9. The amount involved for the proceedings, when an estimate thereof is necessary to determine competence or process. 10. The place, the physical and electronic address had or required, where the parties, their representatives and the claimant’s attorney-in-fact will receive personal notifications. 11. Any other aspects required by law. … Article 88. Joinder of claims. Claimants may join several requests in a single claim against the same defendant, even if they are different, so long as the following requirements coincide: 1. That the judge has jurisdiction over all of them, irrespective of the amount. 2. The requests are not mutually exclusive, unless they are put forward as principal and ancillary claims. 3. They may be dealt with by the same procedure. A claim for periodic benefits may seek an order that the defendant be ordered to pay such benefits as may accrue between the time when the claim is brought and the time when the final judgment is enforced. Requests by one or more claimants, or against one or more defendants, may also be brought in one claim, even if the interests of one or more of them are different, in any of the following cases: a) Where they arise out of the same cause [de la misma causa]. b) Where they deal with the same subject matter. c) Where there is a relationship of [dependence] between them. d) When they are to use the same evidence. Requests by one or more claimants who pursue totally or partially, the same assets of the defendant, may be joined in enforcement claims.”

“… as in this case happens, and of course, respecting Dr. Tamayo’s opinion, it is difficult to determine whether we are handling a group action or an ordinary civil liability suit, in light of Colombian law. In this specific event I have stated that factors of interpretation could be those that I mention in the report, if so be considered insofar as it has to do with the principles of prevalence of substantive law and others as the Constitutional Court has said, that is, pro homine interpretation or reasonable interpretation. And I mention it because these interpretations brought to the mention of constitutional jurisprudence are invoked to the extent that both figures have similarities and differences as I explained before.”

“For its part, the Constitutional Court has recognized the application of the constitutional principles of prevalence of substantive law, pro homine interpretation, conforming interpretation and reasonable interpretation, in the context of group actions. The same Court has referred to these principles as follows: I. Pro homine: “(...) imposes that interpretation of legal norms which is most favourable to man and his rights...in those cases in which more than one interpretation of a norm is accepted, the one which best guarantees the rights of people should be preferred”

“(…) all legal precepts must be interpreted in such a way that their meaning conforms to constitutional provisions. The interpretation of a norm that contravenes this principle is simply intolerable in a system that is based on the formal and material supremacy of the Constitution (PCC art. 4)”

“It should be pointed out that group actions are certainly intended to facilitate, as Dr. Tamayo rightly states, access to the administration of justice and in no case to hinder or complicate it, and of course pursue the legitimate aim of guaranteeing the prompt resolution of conflicts. I recognise that, certainly, procedural rules are of public order and that, in any case, should any conflict arise in the interpretation and application of Law 472 of 1998, the judge can or could resort to the principle of the primacy of substantive law. Of course not in all events, but in those in which there might be difficulty in determining the scope of Law 472.” (Emphasis added.)

“I do not agree. In my opinion, it is only when a legal rule is declared unconstitutional because it violates a fundamental right of the claimant that the judge can cease to apply it. Therefore, if the procedural rule has not been declared unconstitutional, the judge cannot disregard it. In the specific case of the expiration of statute of limitations (caducidad) of Art. 47 of Law 472 of 1998, the case law of the high courts has decided a large number of group action lawsuits, in which it is decided whether the expiration of the statute of limitations has occurred in a given case. I am not aware of a single case in which the expiration of statute of limitations (caducidad) of Law 472 of 1998 has not been applied following the thesis of Dr. Santos. I would be grateful if, if he knows of any particular ruling, he could identify it and subsequently add it to the file.”

“Clarifications: as I have stated, of course, when the judge finds the existence of a phenomenon of expiration of the statute of limitations (caducidad) fully accredited, he is obliged to give effect [to] it, and I agree with Dr. Tamayo that this has been determined by the case law of the high courts. What I am suggesting is that in the events in which it could be considered that it is not clear what type of action is being sought, as in this case, the judge could well resort to criteria of interpretation such as, among others, the prevalence of substantive law. In the Colombian legal system, I note, such confusion would not arise given the procedural forms that clearly identify a group action or an ordinary action. As I say, I have not cited any case law, because I do not know of any.” (Emphasis added.)

“In line with the above, this Court has held that group actions clearly contribute to the realisation of the right of access to the administration of justice and to the development of the principle of procedural economy, by resolving the claims of a plural number of persons who were affected by the same cause in a single proceeding. Indeed, one of the purposes of group actions is to simplify the administration of justice and to combine individual efforts to seek redress for damages caused by a harmful event. It is for this reason that the purpose of group actions is to allow a plural number of individuals who are affected by a common event, being in similar situations, to bring a single action for the purposes of reparation and compensation, thereby achieving greater procedural economy, which translates into terms of reducing the wear and tear on the judicial apparatus and contributes to the fight against congestion in the administration of justice and to reduce the costs of litigation, which makes the democratisation of justice possible.”

“82 … the expression ‘uniform conditions’ in the section on ‘uniform conditions with respect to the same cause that caused individual damages for said persons’ has another meaning, and that is that it establishes an obvious requirement: the need for the damages[to] have been caused in a common way, which justifies, together with the social relevance of the affected group, that these individual damages be processed and resolved collectively. 83 However, the Court specifies that the notion of ‘uniform conditions with respect to the same cause’, typical of the legal regime of group actions, must be interpreted in accordance with the Constitution, as a structural element of responsibility. The basic consideration at this point is not novel: the notion of causality or causal link must be interpreted in accordance with the principle of effectiveness of the rights; consideration that is linked to the need for the judge of the group action to examine the nature of the elements of responsibility, not only under the prism of its naturalistic reality, but also of its implications in the post-industrial society and the solidarist conception of the Constitution ([Constitution] art 1). This implies that, in accordance with the modern doctrine of non-contractual liability, the element of the causal relationship should not be approached as a purely natural phenomenon but rather an essentially legal one, and likewise, that the particularities of the interests object of protection (group interests with a divisible object) and the harmful events (generally diverse and complex) require a special interpretation of this element of responsibility, according to the well-known legal requirement of the existence of ‘uniform conditions’. For the Court, the satisfaction of the uniform conditions with respect to the causal relationship between the harmful event or events cannot be interpreted solely from the factual point of view. An assessment of the phenomenon of liability for damage to group interests guided by this criterion would make it impossible to build a relationship of identity between the various harmful events that have the capacity to generate common damage to the interest of the group. The case of the infringement of consumer rights is illustrative: a businessman floods the market with a defective product (main harmful event) that will only cause damage when said product is actually purchased by consumers (secondary harmful event: multiple purchases deferred in time) and that it will have the capacity to generate various damages in different situations (consequences of the particular use of the defective product). Among the various damages that can be caused by the harmful act of defective manufacturing (in addition to that of acquisition and subsequent use), there may be various causal links, which, despite sharing a common element, could be considered as different facts, and some might conclude that the conditions are not uniform in relation to the cause that gave rise to the damage. Therefore, a requirement of strict uniformity from the factual point of view, which would confuse the idea of a common legal cause with the existence of a single fact that causes the damage, would make the protection of the group interest fail by way of compensation for the damages. individual damages suffered by its members, since such uniformity is exceptional, from a purely factual perspective. Based on the foregoing, the Court considers that the assessment of the causal relationship must be defined in legal terms and taking into account the nature of the protected interests and the solidarist conception of the Constitution. In the example presented, a similar valuation would be constituted by the evidence of the omission in the duties in the production process, the affectation of the principle of trust of the consumers, the realization of different damages and the foundation of the duty to repair the damages from the verification of a relationship of imputation of the latter to the subject who omitted the duty. Thus, it would be indifferent, for purposes of establishing uniformity in the causal relationship, for example, to determine the measure of the principle of trust of each of the consumers or to specify the timeliness of the sale, and even to determine the measure of the damages suffered by each of the consumers, if it was only the impossibility of using the product, or if said defect generated another type of damage. And it would be contrary to the constitutional purpose to exclude group action in these cases, arguing that there are no common conditions regarding the same cause that caused individual damages for said persons, since there is a multiplicity of sales of the defective product. The uniform conditions are predicated, despite the multiplicity of individual sales, by the uniform situation of the buyers regarding the manufacture and distribution of the defective product that caused them the specific damage.” (Emphasis added.)

“58. This ruling could be interpreted as a relaxation of the “same cause” requirement, which other rulings have qualified as “identical” and “one and the same harmful event” … 59 In this sense, I consider that the ‘same cause’ requirement is being relaxed to some extent, in order to protect groups that may suffer different damages caused by one or several harmful events.”

“It is observed that the claims of the different claimants against the defendant arise from the same petendi cause, understood as the reasons and the series or set of specific facts that support the requests the claimant makes before the judge … That is, in this case, oil exploration and drilling activities … and, in some cases, by crude oil spills. … This concept of causa petendi in Article 88 is different from the concept of ‘same cause’ referred to in Article 46 of Law 472 …, which has been understood as the ‘harmful event of social importance, from whose occurrence all of them [the victims] must be compensated’ (Judgment C-241 of 1 April 2009, page 14); that is, the concrete, factual event giving rise to the damage. By contrast, in the opinion of the Constitutional Court, the causa petendi, ‘contains, on the one hand, a factual component made up of a series of concrete facts and, on the other, a legal component, made up not only of the legal norms to which the facts presented must be adjusted, but also of the specific argumentation process that sustains the aforementioned adjustment. In short, it is possible to affirm that the causa petendi is that group of legally qualified facts from which it is hoped a specific legal consequence will be drawn’ (Sentence T-162 of 30 April 1998, of the Constitutional Court, page 16). That is, the expression ‘same cause’ in Law 472 alludes to a purely factual question.” (Emphasis added.)

“I originally interpreted the notion of the same cause as synonymous with causa petendi and, therefore, only claims of 20 or more persons who are victims of the same act, could be heard in a group action. I also admitted that it was feasible that, within the same group action, two claims from different groups of victims could be joined together, alleging a different but similar fact, [who] could bring the two claims in the same group action, but with clarity as to which were the victims of each group, what the facts of each claim were, and the applicable norms. In other words: two causes petendis within the same action. This is allowed in the GPC. However, although in Colombia, in principle, the judge is only subject to the rule of written norms, by way of exception the Constitutional Court established that certain rulings of that body were binding precedents to be respected by judges and lawyers, unless they had strong arguments to contradict them. Therefore, aware of the principle that “case law kills doctrine”, I accept with the greatest respect for the Court, all that Dr. Santos has explained to us and quoted from case law, where he accepts a broad meaning of the criterion of the same cause.” (Emphasis added.)

“WHAT IS MEANT BY A ‘SAME CAUSE’, ESPECIALLY IF THERE ARE SEVERAL DEFENDANTS? Greater confusion and inaccuracy are impossible! The concept of ‘the same cause that originated the damages...’ is as vague and controversial as it gets. In our opinion, ‘the same cause’ does not mean that all the damages are necessarily derived from the same legal act or fact. Rather, the concept refers to the cause in the sense of a causal link. In this line of thought, the Constitutional Court ruling of April 14, 1999, set out that: ‘The common element is the cause of the damage and the interest whose injury must be repaired, which is what justifies joint legal action by those affected.’ Thus, there will be a ‘same cause’ when the damages physically have the same origin or a similar one. But in this case, different hypotheses must be considered. INDEPENDENT, BUT SIMILAR EVENTS, WITH ONE OR VARIOUS RESPONSIBLE PARTIES But it can also happen that there are several independent events, with the same or different perpetrators, but with circumstances of fact and law so similar that the mechanism of group action is justified and possible. Of course, it will be necessary for there to be a minimum of 20 claimants, even if each party responsible affects less than 20 victims. In such circumstances, we understand by ‘the same cause’ the fact that the legal and factual phenomenon is similar, even if they are not the same, or rather, they are not identical. Thus, for example, it may happen that the same type of defective medication is manufactured independently by several pharmaceutical laboratories. If said drug causes massive damage to 20 or more people, all of them may sue their respective laboratories through a group action. Of course, each defendant is only liable for the damages that their drug has caused. There is no several liability among those responsible. What simply happens is that the victims can come together in the same process, against all those responsible. And that similarity arises from the same type of contract, even if they are separate agreements; from the same type of damage and the same type of conduct, even if they are different defendants. What matters is that the judge does not have to analyze the conduct of the defendant or defendants one by one in order to know whether or not the claim is admissible. On the other hand, if in our defective drug example, some members of the group took an antibiotic that caused gastric damage and others took a painkiller that caused body paralysis, then there will be no common cause, regardless of whether it is the same manufacturer or different manufacturers. The same thing would happen if the buyers of one type of car complain about the poor quality of the tires of the ‘97 model and the others complain about the poor quality of the brake system of that same or a different model. … WILL A SINGLE CLASS ACTION BE POSSIBLE WITH TWO GROUPS OF VICTIMS FOR TWO TYPES OF COMMON CAUSE? The example is utopian, but not impossible: Suppose a laboratory manufactures two different drugs that are defective, but for different reasons, more than 20 affected victims appear with each type of drug. Will all the victims be able to initiate a single group action to collect the respective compensation? In our opinion, the answer is affirmative, as long as the victims of each drug are at least the 20 required by article 46. In that case, when setting the conditions to form the group, the judge must be absolutely clear about the conditions of uniformity of each group.” (Emphasis added.)

“… the ruling is applicable to all members of the affected group, even those who ‘were not part of the process’, unless they have excluded themselves from the group (see article 56 above). This is explained because those who ‘were not part of the process’ were actually represented by the other claimants.”

“However, and this is quite important, according to the final paragraph of Article 56, persons who did not present a claim from the beginning, and who were not expressly excluded from the group, will be affected by the favourable or unfavourable judgment, and may not initiate any subsequent individual action.”

“The proposed Regulation does not take over the exclusion in Article 1(2)(h) of the Rome Convention, which concerns rules of evidence and procedure. It is clear from Article 11 [which became article 15 of Rome II] that, subject to the exceptions mentioned, these rules are matters for the lex fori. They would be out of place in a list of non-contractual obligations excluded from the scope of this Regulation.”

“This amendment takes account of the universal principle of ‘lex fori’ within private international law that the law applicable to procedural questions, including questions of evidence, is not the law governing the substantive legal relationship (‘lex causae’), but, rather, the procedural law of the forum.”

“130 Article 1(3) of Rome II is a rule about what is sometimes called the ‘vertical scope’ of the Regulation. Evidence and procedure are excluded from the scope of the Regulation. Although it does not automatically follow that these issues will be subject to the lex fori, the private international law principle that such matters are for the law of the forum is well recognised. It is enough to quote Dicey, para 7.002: ‘The principle that procedure is governed by the lex fori is universally admitted.’ 131 Article 15 of Rome II is not itself directly concerned with clarifying the distinction between substance on the one hand and evidence and procedure on the other. It simply contains a list of matters which are ‘in particular’ to fall under the designated law. Included in the list are matters, such as limitation periods, which were traditionally the subject of some debate as to whether they were substance or procedure. Article 15 does not answer that question, but merely declares that they will be subject to the law which governs non-contractual obligations under Rome II. I therefore do not regard article 15 as a safe guide to whether matters which do not fall within its scope are procedural or substantive. 132 The distinction between substance and procedure is a fundamental one. The principle underlying it is said to be that a litigant resorting to a domestic court cannot expect to occupy a different procedural position from that of a domestic litigant. Thus, that litigant cannot expect to take advantage of some procedural rule of his own country to enjoy greater advantage than other litigants here. Equally he should not be deprived of some procedural advantage enjoyed by domestic litigants merely because such an advantage is not available to him at home. Thus, at common law, every remedy was regarded as procedure: see, for example, Don v Lippmann (1837) 2Sh & MacL 682, 724—725. 133 Whether a rule is to be classified as one of substance or one of procedure or evidence under Rome II is a matter of EU law: the fact that a rule is classified as one or the other under domestic law is of no relevance. There is therefore a need for an autonomous EU criterion for allocating rules into one or the other category. 134 … This court held [in Wall] that the issue of which expert evidence the court should order was one of ‘evidence and procedure’ within article 1(3) and not an issue relating to ‘the existence, the nature and the assessment of damage’ within article 15(c) of Rome II. It was argued that the objective of the Regulation was to ensure uniformity of outcome, and that the English court should do its best to ensure that uniformity by adopting all the rules of the foreign court which might affect outcome. The court rejected that argument (see Longmore LJ, at paras 11—14 and Jackson LJ, at paras 40—43), holding that it was inevitable that the same facts tried in different countries might achieve different outcomes. The words ‘evidence and procedure’ were thus given what Jackson LJ called their ‘natural meaning’. 135 In my judgment, subject to any impact on the question which Rome II may have had, the rules with which we are concerned are conditions of admissibility of actions, rather than rules concerned with the substance or content of parties rights. They are all concerned with whether the court should hear a dispute about substance. They are not concerned directly with the substance itself … 136 Such rules would traditionally, for private international law purposes, be classified as procedural and not substantive. In my judgment, therefore, they should continue to be so treated unless Rome II requires a different outcome. 137 … Whilst the passage from Dicey on which Mr Mitcheson relies suggests a very narrow interpretation of ‘evidence and procedure’, the authors nevertheless say at 7—072: ‘It is clear that rules on the conduct of the parties prior to the instigation of proceedings, for example on providing notice before action, or on the need for a meeting between parties before starting proceedings, are procedural.’ … 139 I do not accept that article 15 should be given a wider effect than its language suggests, treating the listed matters as no more than examples of a class of analogous matters regarded as procedural in private international law, but now to be brought within the designated law. Mr Raphael is right that the legislative history shows that the Regulation was intended to respect the private international law principle that the ‘lex fori’ is applicable to procedural questions. 140 Although article 15 applies the lex causae to a number of matters which at least the English common law would have treated as procedural, none of them, as it seems to me, is apt to encompass the rules for admissibility of a DNI. …” (Emphasis added.)

“[Article 15] includes issues which, at common law, are characterised as matters of procedure, to be governed by the law of the forum. Foremost among these are ‘the nature and assessment of damage or the remedy claimed’ and ‘rules of prescription and limitation’. Whatever may be the position in cases to which the Regulation does not apply, these issues cannot be considered to fall within the scope of the exclusion of matters of ‘evidence and procedure’ in Art. 1(3), and they will henceforth be governed not be the lex fori but by the law to which the Regulation refers.”

“In order to secure the objectives of the Regulation in enhancing the predictability of litigation and the reasonable foreseeability of court decisions, it is suggested that the Art.1(3) exclusion should be interpreted narrowly as covering only matters, such as the constitution and powers of courts and the mode of trial, that are integral and indispensable feature of the forum’s legal framework for resolving disputes, such that they cannot satisfactorily be replaced by corresponding rules of the lex causae.”

“Moreover, although it has been suggested that the concepts of ‘evidence’ and ‘procedure’ should be given their ‘natural meaning’, the legislative context remains important: the objectives of the Regulation in enhancing the predictability of litigation and the reasonable foreseeability of court decisions, support a narrow (although not strained) interpretation of Art.1(3) as covering matters, such as the constitution and powers of courts, the methods of proving disputed facts and the mode of trial, that are an integral and indispensable feature of the forum’s legal framework for resolving disputes, such that they cannot satisfactorily be replaced by corresponding rules of the lex causae.” (Emphasis added.)

“14.48 Art 15(h) reflects, in large part, the position reached under English law following the adoption of the Foreign Limitation Periods Act 1984. Prior to that, English private international law differentiated in its treatment of two types of rule concerning the consequences of delay in bringing a claim to enforce a non-contractual obligation. First, those extinguishing the right/obligation, which were treated as substantive and within the scope of the law applicable to the right/obligation in question. Secondly, those that only extinguished the remedy, which were treated as procedural in nature and a matter for the law of the forum. That distinction, and the application by the English courts of English limitation rules (most of which were of the second kind) to claims governed by foreign law, was heavily criticized, and led to the adoption of the 1984 Act. For claims governed by foreign law, s 1 of that Act substituted the limitation rules of the relevant foreign law for the limitation rules of English law. That is also the result achieved by the second part of Art 15(h). … 14.57 … First, it should be noted that Art 1(3) is solely a restriction on the (vertical) scope of the Regulation. It does not designate the lex fori as applicable. Instead, for matters to which Art 1(3) applies, Member State courts may continue to apply their pre-existing rules of private international law, which may or may not lead to application of the forum’s own rules. Secondly, as with all matters that define the scope of the Regulation, the concepts of ‘evidence’ and ‘procedure’ must be understood as autonomous concepts, to be given a uniform meaning independent of the forum’s notions as to the reach of the law of evidence and the law of procedure. Thirdly, as noted above, the Commission suggested that restrictions on the scope of the Regulation should be interpreted strictly. As a general proposition, that seems debatable. In relation to Art 1(3), however, a strict interpretation of the concepts of ‘evidence’ and ‘procedure’ is justified, both by the Commission’s view that Art 15 of the Regulation ‘confers a very wide function on the law designated’ and by the stated objectives of the Regulation, namely that ‘in order to improve the predictability of the outcome of litigation, certainty as to the law applicable’ there is a need ‘for the conflict-of-law rules in the Member State to designate the same national law irrespective of the country of the court in which an action is brought’. A broad interpretation of either of the concepts used in Art 1(3), giving greater freedom to Member State courts to apply a law other than that applicable to non-contractual obligations under the Regulation, would put the achievement of these objectives in jeopardy. … Finally, the scope of the exclusion must itself be defined partly by reference to the list of matters set out in Art 15. That Article makes clear that certain matters that might otherwise be considered to be matters of ‘evidence’ or ‘procedure’, fall squarely within the scope of law applicable under the Rome II Regulation. These include, in particular, (1) the assessment of damage (Art 15(c)148), (2) the available remedial measures (albeit ‘within the limits of powers conferred on the court by its procedural law’) (Art 15(d)149), and (3) rules of prescription and limitation (Art 15(h)).” (Emphasis added.)

“The applicable law … will also determine whether a claim or claimant is in or out of time to bring the claim. It does not matter whether, according to the analysis taken under the applicable law, the time rules are seen as procedural or substantive in nature. The Regulation calls for the application of the calendar and counting of time according to the applicable law: to determine the starting date, the length of the period, any stopping of the clock, the finishing date, and any power or discretion to lift the time bar or to dispense, or set it aside, which is provided for by the applicable law. …”

“26. Secondly, art.15(h) is not exhaustive and this is made clear by the words “in particular” in the opening phrase of that article before the various categories (a)–(h) are listed out. The provisions of art.15 are therefore to be construed widely, and that is emphasised by the breadth of matters listed in art.15. This point was made recently by Mr Christopher Hancock QC, sitting as a Deputy High Court Judge, in KMG International NV v Chen [2019] EWHC 2389 (Comm) at 36(3)–(5). Further, Ms Wyles says that art.15 should be construed widely to promote legal certainty and the more that is covered by the applicable law, in this case Greek law, the more certain is the outcome. 27. Thirdly, art.1(3) of the Rome II Regulation … is an exception to the general rule set out in art.4 which, in this case, is that Greek law shall apply to the law of tort. This means that, as art.1(3) is an exception, it should be construed narrowly. There is no dispute between the parties about this. 28. Fourthly, art.15(h) includes various matters which historically or traditionally have been regarded as ‘procedural’. This point is addressed by the editors of Dicey, Morris & Collins, The Conflict of Laws, 15th edn (London: Sweet and Maxwell, 2012), para.34-036. … 29. This passage from Dicey, Morris & Collins, The Conflict of Laws was recently quoted and applied by the deputy judge in the KMG International case at paras 30(4) and 36(6). The Fifth Cumulative Supplement to the 15th Edition of Dicey & Morris refers, in relation to para.34-036, to Wall v Mutuelle De Poitiers Assurances [2014] 1 WLR 4263 in which the Court of Appeal held that the Rome II Regulation did not require the law of the place where the damage occurs to also govern the way in which evidence of fact or opinion is to be given to the court which has to determine the case: see Longmore LJ at [12] (p.4269C). Rather, matters of evidence or fact fall within the narrow exception provided for in art.1(3). … 30. Fifthly, one of the principal aims of the Rome II Regulation is, as is set out in the sixth recital: ‘To improve the predictability of the outcome of litigation, certainty as to the law applicable … for the conflict of law rules in the Member States to designate the same national law, irrespective of the country of the court in which the action is brought.’ 31. Similar points are made in the 14th and 16th recitals to the Rome II Regulation. In this context Ms Wyles reminded me that the Rome II Regulation must of course be construed purposively, and with reference to those recitals.” (Emphasis added.)

“18. Furthermore, it was uncontroversial (and agreed between the parties in Pandya) that Art. 1(3) is an exception to the general rule set out in Art. 4 and, as an exception, is to be construed narrowly. In this case, as in Pandya, the claimant has not succeeded in arguing that the service of proceedings falls within that exception. 19. I can see no error in Tipples J’s conclusion that Dicey, Morris & Collins correctly identified that Art. 15(h) includes matters which historically or traditionally had been regarded as procedural but which are no longer to be considered so and her approval of [the passage from §34-036 of the 15th edition quoted in paragraphs ‎87-‎88 above] … I agree and also agree that support for the proposition is contained in Wall v Mutuelle de Poitiers Assurances [2014] WLR 4263 per Longmore LJ. … 22. The claimant’s late submitted additional case note suggesting that Pandya had not considered the authority of Actavis UK Ltd and others v Eli Lilly & Company [2016] RPC 2 which had led the court to fall into error, turned out to be incorrect on closer analysis. Although Actavis was not referred to directly in the judgment, Pandya considered KMG International NV v Chen [2019] EWHC 2389 (Comm) in great detail– see paragraphs 26 and 29 for example –and KMG International NV had considered and dealt with all the points made in Actavis. There was nothing in Actavis that had not been considered by Tipples J in her careful judgment in Pandya.”

“el modo de extinción de las obligaciones, así como las normas de prescripción y caducidad, incluidas las relativas al inicio, interrupción y suspensión de los plazos de prescripción y caducidad.” (Emphasis added.)

“I must respect the balance struck by Peruvian law as its chosen compromise between the legitimate interest that claims should be fully explored and resolved and the separate legitimate interest in the finality of litigation. There are, of course, other elements of Peruvian law which differ from English law and which form part of that overall compromise. For example, the two-year limitation period under Peruvian law for non-contractual claims has no in-built flexibility such as exists under English law under the Limitation Act 1980, which allows the primary limitation period to be disapplied and extended in certain circumstances. That is not to be regarded by the English Judge who grapples with Peruvian law as a deficiency: it is simply a fact and is part of the balance that Peruvian law has decided to strike between the interests of Claimants and Defendants.”