Mr Justice Stuart-Smith:
Introduction
- The Claimants are Peruvian citizens. Twenty of them allege that they were injured by members of the Peruvian National Police ["the PNP"] during a protest at the Tintaya mine in Espinar, a remote Andean province of Peru. The other two Claimants bring claims arising out of the deaths of relatives at the hands of the PNP during the same protest. The protest took place between 21 and 28 May 2012. The Second Defendant was the mine operator at the material time and is a Peruvian company. The First Defendant was the Second Defendant's parent company at a number of removes: it is registered and domiciled in the United Kingdom.
- After initially issuing proceedings in England in 2013 that only advanced claims under English law, the Claimants subsequently added claims under Peruvian law by successive amendments, the first of which were brought forward more than two years after 21-28 May 2012. After considerable and unexplained delay the Defendants made a late amendment to their pleadings to allege that the Claimants' claims under Peruvian law are barred by limitation: see Vilca and others v Xstrata limited and others [2017] EWHC 2096 (QB) ["the Limitation Amendment Judgment"]. On permission being given to the Defendants to amend to plead limitation, the Claimants abandoned all claims under English law.
- It is now common ground that (a) the applicable law for the Claimants' claims in these proceedings is Peruvian law by virtue of the provisions of Rome II; and that (b) the relevant limitation period under Peruvian law is two years from the date on which each Claimant alleges that he or she was injured during the protest.
- This state of affairs led to a direction that the expert evidence on Peruvian law should be heard, and the issue of limitation decided, during a preliminary hearing. This is the judgment of the Court on the issue of limitation after that preliminary hearing.
- The judgment adopts the following course:
i) Introduction;
ii) The Experts in Peruvian Law;
iii) The Sources of Peruvian Law;
iv) The Relevant Provisions of Peruvian Law;
v) The Relevant Factual Background;
vi) Summary of the Parties' Positions on Limitation;
vii) Issue 1: to what extent did the issuing of the Claim Form and/or the original Particulars of Claim interrupt the period of prescription under Peruvian Law?
viii) Issue 2: did the interruption of the period of prescription by the Claim Form and/or the original Particulars of Claim have the effect that any or all of the claims under Peruvian Law that were subsequently advanced by amendment were brought within the time permitted by the Peruvian Law of limitation?
ix) Issue 3: what is the significance of CPR 17.4?
x) Issue 4: if some or all of the claims under Peruvian Law were brought after the limitation period applicable to those claims had expired and would otherwise be barred by limitation, are the Defendants prevented from relying on limitation by waiver?
xi) Conclusions
- For the reasons set out below, I hold that the Claimants' claims under Peruvian law are barred by limitation. There has been no tacit waiver by the Defendants that prevents them relying on limitation as a defence to the Peruvian law claims.
The Experts in Peruvian Law
- The parties called experienced and distinguished experts on Peruvian law. The Claimants called Professor Fernández; the Defendants called Professor Bullard. The emphasis of their past experience differs. Professor Fernández is an experienced litigator; Professor Bullard's main (but not sole) practical experience of contentious dispute resolution lies in arbitration, where he is primarily an experienced arbitrator. Professor Fernández has written more extensively on extra-contractual liability than Professor Bullard. Each has been cited by the Peruvian Courts on questions relating to Peruvian procedure, apparently with approval. Professor Fernández has the distinction of having been asked to act as amicus curiae to the Civil Chambers of the Peruvian Supreme Court in a case in which a binding precedent was set. This is a signal honour, which Professor Bullard cannot match. Professor Fernández is also the President of the Reform Commission that is reviewing the Peruvian Code with a view to its reformulation. His CV is, on any view, extremely distinguished.
- If the Court's task was merely to determine which expert had the longer or more distinguished CV, Professor Fernández would win the competition. However, that is not the Court's task. Having heard each expert give evidence over days, I am not persuaded that the relative distinction of their CVs entitles me routinely to disregard or give precedence to the evidence of either expert. Each expressed firmly held views with great conviction - often at very great length - which allowed the internal logic of their answers to be seen and tested by rigorous cross-examination. My ultimate conclusion was that each was expert in the relevant fields of Peruvian law. In addition, as appears below, Peruvian law and doctrine do not provide clear, unequivocal and authoritative answers to the issues I have to decide. That being so, I have attempted to form a view on the merits of the experts' evidence on the issues I have to decide based upon the terms of the various relevant provisions of Peruvian law, available doctrine, and the inherent quality of the evidence they gave. In doing so I have taken into account their respective backgrounds and experiences, as disclosed by their CVs, and also that the issues covered in this judgment are only a fraction of the issues covered during the hearing. Although not required (and not in a position) to make findings on the other issues of Peruvian law that were covered during the present hearing, I have taken full account of the high quality of their evidence as a whole. I have formed the view that neither expert is always right in his opinions on Peruvian law.
The Sources of Peruvian law
- The Peruvian legal system is a civil law system and is constructed on the basis of general and abstract legislation by the legislature, which is interpreted in the light of relevant academic authorities (known as "doctrine") and, to a lesser extent, on the basis of reported cases.
- There are two differences that materially affect the English Court's approach to Peruvian judicial decisions when compared with its approach to decided cases in a common law tradition. First, apart from limited exceptions to which I refer below, Peruvian law does not have a system of binding authority or precedent. Second, and perhaps related to the first, Peruvian judicial decisions tend to concentrate upon applying the law to the specific case without providing the same degree of written analysis of either fact or law as typically applies in decisions of the higher Courts in England and Wales. An English Court trying to derive assistance from Peruvian judicial decisions must take these differences into account, as well as the conceptual and linguistic differences that inevitably exist between cases decided in different languages and under a common law or civil law system respectively. This is not a criticism of the decisions themselves; it is merely a recognition of the different approaches adopted by the Courts of Peru on the one hand and of England and Wales on the other.
- There are two exceptions to the general rule that decisions of the Peruvian Courts do not give rise to binding precedent. The first is when the Supreme Court expressly indicates that it is issuing a judgment that constitutes or amends a binding precedent. The second is that the Constitutional Tribunal (which is an autonomous body that is distinct from the Judicial Branch) may issue precedents on matters of a constitutional nature which are expressly designated as such. So far as I am aware, none of the cases to which I refer in this judgment fall within either of these exceptions.
- Given the lack of precedent, Peruvian Courts often issue contradictory rulings on similar matters, which generates legal uncertainty. In Peru, as in other civil law systems, the absence of precedent is balanced (to some extent) by reliance on doctrine, typically in the form of the writing of distinguished jurists. Doctrine is not a direct source of law; but it is a legitimate source of guidance for Judges in Peru as they make their decisions. As shown by the evidence of both experts in the case, it may be legitimate not merely to have regard to the writings of Peruvian jurists but also to take into account doctrine from other civil law jurisdictions. The writings of renowned jurists play an important role in the development of Peruvian law but do not necessarily speak with one voice. For that reason they do not always provide guidance of such clarity or unanimity as to allow certainty about precisely what the current state of the law of Peru may be or where it may be going. I accept the evidence of Professor Bullard that doctrine will have additional weight if it is unanimous or if there is a clear majority rather than if it is divided. Where there is a discrepancy of view within doctrine, the interpreting Judge must follow the criteria (by which he means arguments and justifications) that the Judge considers most reasonable and consistent.
- One feature of doctrine from different jurists, which provides a ready explanation why doctrine may not be unanimous on a given topic, is neatly illustrated by Professor Fernández' reference to what he calls the "classical" and "contemporary" analytical perspectives:
"…in Peruvian law, as in most civil law systems, legal change is driven by doctrine, not by judges. New legal concepts are developed by jurists in the form of written doctrine and, over time, some of these concepts will be adopted and applied by judges. The classical perspective describes traditional legal concepts that are commonly applied by Peruvian courts. The contemporary perspective refers to legal concepts that are primarily expressed in written doctrine and that, given their novelty, are not necessarily accepted by Peruvian judges.
It should be noted that there is no binary distinction between the two perspectives."
- It is not entirely clear to what extent, if at all, Professor Fernández' "classical" and "contemporary" perspectives are terms of art in Peruvian doctrine – nor does it matter. As a broad generalisation, it is fair to observe that Professor Bullard tends to favour a more "classical" perspective and Professor Fernández a more "contemporary" one. This does not provide a sure touchstone for preferring the reasons of one over the other in any field of Peruvian law which may be developing but has not yet reached its destination.
- The main sources of law in Peru are:
i) The Constitution, which is the basic statute of the State. It takes precedence over the laws and over all other lower-ranked legal norms. It mainly regulates people's fundamental rights, the formation or structure of the State and the duties of government bodies;
ii) International Treaties. The President has the power to ratify international treaties, though this requires the approval of Congress in some cases. There is provision in the Constitution for giving constitutional status to certain treaties or their provisions;
iii) Rules with the force of law. Rules with the force of law cannot contradict or override the Constitution. There are five categories of rules that have the force of law:
a) Laws in the form of general and abstract regulations approved by Congress. This category includes Law 27444 – General Administrative Procedural Law and Law 27238 – Organic Law of the Police of Peru;
b) Legislative Decrees. The Constitution authorizes Congress to delegate the power to legislate on specific matters to the Executive Branch. Such a Decree has the same rank as a law passed by Congress. The President of the Republic is obliged to account to Congress for each Legislative Decree that is issued. If Congress disagrees with the Legislative Decree, it can repeal it. This category includes the Legislative Decrees which approved the Civil Code, the Criminal Code and the Arbitration Law respectively;
c) Decree Laws, which have typically been legislative decrees issued by the de facto government at times when the Constitution has been suspended;
d) Emergency Decrees, which are exceptional regulations issued by the Executive Branch to respond to situations of financial or economic emergency. Where such Decrees are issued, the President is obliged to account to Congress, which may amend or repeal them;
e) Regional Regulations and Municipal Ordinances, which are laws passed by regional and municipal governments on areas within their jurisdiction and competence;
iv) Supreme Decrees rank lower than regulations having the force of law. They are the highest ranking regulations issued by the Executive Branch (with the exception of Legislative Decrees, Decree Laws and Emergency Decrees) but may not contradict or override the provisions of Laws. They may be issued by the President with the endorsement of at least one minister. This category includes the Regulation of the Organic Law of the PNP approved by Supreme Decree 008-2000-IN and the Regulations on the Provision of Extraordinary Complementary Services to the Police; and
v) Resolutions. Public administration entities exercise their regulatory functions through resolutions. They include, in descending order, supreme resolutions approved by the President, ministerial resolutions, directorial resolutions, resolutions of boards of directors, and other such utterances.
- Neither the Constitution nor the law provide rules for their interpretation. Professor Bullard identifies the four classic criteria for interpreting civil law: literal, systematic, historical and teleological. He says that it is usual to start with textual methods i.e. literal and systematic interpretation, then to evaluate arguments from the perspective of the history and purpose of the regulation. In their closing submissions the Claimants adopted his approach of starting with textual methods. I do not understand Professor Fernández to disagree with Professor Bullard's theoretical approach to interpreting the Constitution and the law. I shall adopt it when attempting to determine what view a Peruvian Judge would take of a law in the light of any relevant doctrine.
The Relevant Provisions of Peruvian Law
- It is convenient to introduce here the provisions relating to limitation and those that are primarily relevant to the claims under Peruvian law that are said to be barred by limitation.
Limitation/Prescription
- Extinctive Prescription is the subject of Book VIII, Title 1 of the Civil Code. The relevant provisions for present purposes are:
"Extinctive prescription
Article 1989 – Prescription extinguishes the action but not the right itself.
Inalienability of extinctive prescription
Article 1990 – The right to prescription is inalienable. Any agreement aimed at impeding the effects of prescription are invalid.
Waiver of prescription that has already occurred
Article 1991 – A prescription that has already occurred can be expressly or tacitly waived.
It is understood to be tacitly waived when it results from the execution of an act that is incompatible with the will to take advantage of prescription.
Prohibition of declaring prescription ex officio
Article 1992 – The judge cannot base his rulings on prescription if it has not been invoked.
Calculation of the period of prescription
Article 1993 – The period of prescription starts on the day on which the action can be exercised and continues against the successors of the holder of the right.
…
Interruption of the period of prescription
Article 1996 – The period of prescription is interrupted by:
1. Recognition of the obligation
2. Notice to declare the debtor in default
3. Summons with the claim[1] or another judicial act serving the debtor, even when turning to a non-competent judge or authority.
4. Judicially opposing the compensation.
Ineffectiveness of the prescription
Article 1997 – The interruption is invalidated when:
1. It is proven that the debtor was not served with the claim or was not notified with any of the other acts referred to by Article 1996, paragraph 3.
2. The claimant withdraws the claim or the acts with which the debtor has been notified; or when the respondent withdraws from an appeal or objection by means of which he has opposed the compensation.
3. The process is abandoned and becomes defunct.
Restarting the period of prescription
Article 1998 – If the interruption is produced due to the causes outlined in Article 1996, paragraphs 3 and 4, the period of prescription begins once again after the date on which the judgment that concludes the process becomes enforceable.
Allegation of suspension and interruption
Article 1999 – Suspension and interruption can be alleged by whoever has a legitimate interest.
Periods of prescription
Article 2001 – Unless otherwise provided by law, prescription occurs:
…
After two years, …, [for] compensatory actions due to non-contractual liability, … ."
- At this stage it is sufficient to note that:
i) The Spanish words translated as "Summons with the claim" in Article 1996(3) are "Citación con la demanda". It is common ground that Article 1996(3) requires service of the demanda upon a Defendant in order for there to be interruption of the period of prescription. The requirements for a valid demanda and how it comes to be served in Peru are addressed separately: see below at [21];
ii) It is also common ground that the reference to "another act serving the debtor" in Article 1996(3) is a reference to another judicial act serving the debtor. Thus the major distinction between Articles 1996(2) and (3) is that Article 1996(3) requires a judicial act but Article 1996(2) does not.
Time running/Default
- When time runs for claims alleging breach of both contractual and non-contractual obligations is linked to two separate questions, namely (a) what is required to interrupt a period of prescription and (b) what is the scope of the interruption effected in given circumstances? Peruvian law gives prominence to the notion of default in this area. The following provisions are of prime relevance:
i) Article 1333 of the Civil Code lays down the basic rules, including that "default is incurred by the obligor when the creditor judicially or extra judicially claims the fulfilment of the obligation. …";
ii) Article 1334 of the Civil Code provides a separate rule in cases where the amount of the sum of money being claimed needs to be determined by a judicial decision:
"In the obligations to provide sums of money whose amount needs to be determined by means of judicial decision, default is incurred from the date of the summons.
The provision of Article 1985 is excepted from this rule.";
iii) Article 1985 of the Civil Code is the subject of significant disagreement between the experts, to which I refer below. It states:
"Compensation covers [/includes] the consequences derived from the action or omission that generated the damage, including lost profits, personal injury, and non-material damages, where there should be a relationship of adequate causation between the act and the damage produced. The amount of the compensation accrues the interest established by law as of the date on which the damage is produced."
Put shortly, the dispute concerns whether (as Professor Fernández says) the second sentence of Article 1334 refers to the whole of the terms of Article 1985 or (as Professor Bullard says) only to its last sentence.
Requirements for the Demanda
- Article 424 of the Procedural Code sets out the legal requirements for the demanda, as follows:
"The demanda is presented in writing and shall contain:
1. The name of the judge who it is presented to;
2. The name, personal details, residential address and solicitor's address of the claimant;
3. The name and residential address of the representative or agent of the claimant, if he cannot appear or does not appear on his own;
4. The name and residential address of the defendant. If the latter is unknown, this circumstance will be expressed under oath which will be understood to have been made with the filing of the claim;
5. The request which includes the clear and concrete determination of what is being requested;
6. The facts on which the request is grounded, set out accurately numbered, in order and with clarity;
7. The legal grounds for the request;
8. The amount of the request, unless it can not be established;
9. Which procedural track applies to the claim;
10. The means of proof.
11. The signature of the claimant or of his representative or of his agent, and that of the Lawyer…;"
- The most important paragraphs of Article 424 for present purposes are paragraphs 5-7. The "request" referred to in paragraph 5 is known as the "petitorio", which is the word used in the original Spanish. The facts on which the request is grounded and the legal grounds for the request, referred to in paragraphs 6 and 7 respectively, are known as the "causa petendi".
Article VII of the Procedural Code
- Although Article 424(7) requires the Claimant to set out in the demanda the legal grounds for the claim, it is evident that a failure to do so may not be fatal, because of Article VII of the Procedural Code, which provides:
"Judge and Right
Article VII The Judge must apply the law that corresponds to the process, even if it has not been invoked by the parties or has been invoked erroneously. However, he cannot go beyond the request or base his decision on the facts different from those that have been alleged by the parties."
- The precise scope and effect of Article VII will be considered later. The reference to "the request" beyond which the Judge may not go is a reference to the petitorio within the meaning of Article 424(5). It is common ground that the reference to applying the law that corresponds to the process "even if it has not been invoked by the parties or has been invoked erroneously" refers to the application of Peruvian law. Whether it also refers to foreign (i.e. non-Peruvian) law is in dispute. It is, however, common ground that foreign law must be pleaded and proved as matters of fact by those who allege its applicability: see Article 190(4) of the Procedural Code. By contrast, and consistently with the provisions of Article VII, Article 190(4) of the Procedural Code also states that domestic law "must be applied automatically by the Judges." There is no provision of Peruvian law which exempts foreign law from the requirement in Article VII that the Peruvian Judge cannot base his decision on facts different from those that have been alleged by the parties.
The Peruvian Court's Procedure for Service of Claims and Subsequent Process
- Before legal process can be served upon a Defendant, it is scrutinised by the Judge. Article 426 of the Procedural Code provides:
"Inadmissibility of the claim[2]
The judge will declare the claim[3] inadmissible where:
1. It does not satisfy legal requirements;
2. The annexes required by law are not provided;
3. The particulars are incomplete or imprecise; or
4. The procedural route proposed does not reflect the nature or value of the claim, unless the law allows for its amendment.
In these cases, the Judge will order the claimant to remedy the omission or defect within a period of no more than ten days. If the claimant does not comply with the order, the Judge shall reject the claim and order that the case be archived."
- The references to "the claim" in this Article are translations of references to the demanda in the original Spanish. The demanda will therefore only be served on the Defendant once it has been declared admissible by the Judge, either on first inspection or after omissions or defects identified by the Judge have been remedied. It is common ground that one of the defects that a Judge might identify at the stage of initial scrutiny could be that the Claimant has identified the wrong applicable law. It follows that identification of the wrong applicable law by the Claimant is a defect that may render the demanda inadmissible. This will not arise where the applicable law is Peruvian law, because Article VII permits the Judge to invoke Peruvian law even if it has not been invoked by the parties or has been invoked incorrectly: see [24] above.
- The Claimant may amend the demanda before it is served: Article 428 of the Procedural Code. However, once it has been served, the position changes. Article 438 provides:
"A valid summons with the claim[4] produces the following effects:
1. The initial jurisdiction cannot be modified, although the circumstances that determined it may vary.
2. The petition[5] may not be modified beyond the cases permitted by this Code.
3. It is not legally possible to initiate another process with the same request[6].
4. It interrupts the limitation period."
- Thus the general rule is that a Claimant may not amend the petitorio after the demanda has been served. The principle of preclusion then applies, which is that once the period for the completion of a particular act has elapsed, that act is precluded and no longer possible. Articles 189 and 429 of the Procedural Code reflect and expressly reinforce the application of the principle of preclusion in the following terms:
"Evidence must be submitted by the parties at the commencement phase, except as otherwise provided for in this code." (Article 189) and
"After filing the claim, evidence may only be submitted in connection to new acts and those mentioned by the other party when responding to the claim or filing counterclaims." (Article 429)
- Article 440 identifies exceptional circumstances in which the Claimant (or Defendant as the case may be) may present further evidence:
"When a party answers to the demanda or counterclaim and invokes facts not stated therein, the other party may, within the period established in each procedure, which in no case may exceed ten days as of the service of notice, present the evidence relating to said fact."
The same position applies vice versa for the Defendant after service of his form of response. The article does not say that the other party may amend their demanda, merely that they may present evidence relating to the new fact that has been invoked.
- The requirements for the response are set out in Article 442 of the Procedural Code, which states:
"When responding the defendant must:
1. Comply with the requirements for the claim, where appropriate;
2. Express his or her opinion on each of the facts referred to in the claim. The lack of response, evasive responses or generic refusals may be deemed by the judge as an admission of the facts alleged;
3. Acknowledge or categorically deny the authenticity of the documents allocated to them, or accepting or refusing, in the same manner, the reception of the documents that were allegedly sent to them. The lack of response may be deemed by the judge as an acknowledgement or acceptance of the reception of the documents;
4. State the facts on which his or her defence is based in an accurate, orderly and clear way;
5. Offer evidence; and
6. Affix their signature or that of his or her representative or attorney-at-law, and that of his or her counsel. The corresponding clerk will certify the fingerprint of illiterate defendants."
- Article 446 of the Procedural Code identifies "exceptions" that may be raised by a Defendant in responding to the claim brought against him or her. Such exceptions may provide an answer and defence to all or part of the claim without reference to the underlying merits:
"Valid exceptions
The defendant can only raise the following exceptions:
1. Incompetence;
2. Defendant's or defendant's representative's lack of capacity;
3. Defective or insufficient representation of the claimant or the defendant;
4. Obscurity or ambiguity in the manner of bringing the claim;
5. Failure to exhaust the administrative route;
6. Defendant's or claimant's lack of standing;
7. Lis pendens;
8. Res judicata;
9. Discontinuance of the claim;
10. Conclusion of proceedings on the basis of conciliation or transaction;
11. Lapsing of the claim;
12. Extinctive limitation; and
13. Arbitral agreement"
- Article 478 of the Procedural Code establishes that the maximum time for raising exceptions or preliminary defences is 10 days, counted from the time of notification of the demanda or counterclaim.
- Article 465 of the Procedural Code provides that, once the preliminary processes have been completed, the Judge will issue a resolution declaring (a) the existence of a valid procedural relationship (in which case the case can proceed); or (b) a period for remedying defects (if they are remediable); or (c) the nullity and consequent conclusion of the process because of the inadmissibility of the procedural legal relationship.
Waiver
- The reference to tacit waiver in Article 1991 brings into play Article 141 of the Civil Code, which provides:
"Manifestation of will
The manifestation of will may be explicit or implied. It is explicit when performed orally or in writing by any direct, manual, mechanical, electronic or other similar means. It is implied when the will can without doubt be inferred from an attitude or circumstances of behaviour that reveal its existence.
Tacit manifestation cannot be said to exist when the law requires an explicit statement or when the agent formulates a reservation or declaration to the contrary."
- Article 142 of the Civil Code provides that silence implies a manifestation of will when the law or an agreement attributes that meaning to it. In other words there must be a legal rule or a contractual agreement that attributes the sense of an expression of will to what would otherwise be mere silence.
- The agreed effect of Articles 461 and 478 of the Procedural Code and the Peruvian principle of preclusion is that, in the context of Peruvian proceedings, a failure to raise extinctive limitation within 10 days from notification amounts to tacit waiver of the limitation defence.
- It is common ground that there can be no waiver under an effective reservation of rights.
The Relevant Factual Background
- One Claimant, Francisco Manuelo Puma, requires separate treatment: see [55]. What follows applies to the other twenty one.
The original Claim Form
- The Claim Form in Action HQ13X02561 was issued on 30 April 2013 and was served on the First Defendant on 1 May 2013. The Claim Form stated that "the Claimants expect to recover more than £300,000 in damages and more than £1,000 in respect of pain, suffering and loss of amenity." The brief details of the claim were:
"The Claimants are Peruvian citizens and were subject to unlawful treatment in or about May 2012 at or in the vicinity of Tintaya mine, Espinar, Peru. The mine is operated and owned by the Third Defendant on its own behalf and/or as agent for or under the control of the First and/Second Defendants. The First Defendant controls the governance, policy, conduct and standards of conduct of both the Second and the Third defendants. The Second Defendant controls the conduct and policies of the Third Defendant.
The claimants suffered personal injury and/or consequential losses as a result of the assault, battery and/or false imprisonment of the Claimants by the Defendants, their servants or agents; and/or conspiracy to injure and/or common design to assault, batter and/or falsely imprison by the Defendants, their servants or agents; and/or negligence of the Defendants, their servants or agents.
The Claimants seek damages, including aggravated and exemplary damages, for their unlawful treatment, personal injuries and consequential financial loss. The ninth and tenth Claimants, as dependents and personal representatives of the estates of the deceased, seek damages pursuant to the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. The Claimants claim interest pursuant to section 35A of the Senior Court Act 1981."
- Self-evidently, the brief details of the claim identified claims under English law and made no reference to Peruvian law. When the First Defendant asked what was the applicable law for the claim against it, the Claimants replied that it was too early to determine but that "it is reasonable to assume for present purposes … that in respect of [the First Defendant] that the law of England and Wales will be determined as being substantially more appropriate to apply, having regard to the obligations of a UK domiciled parent company."
The original Particulars of Claim
- The Particulars of Claim were served on the First Defendant on 14 August 2013. Pursuant to the order of Master Whitaker made on 24 September 2013 the Claim Form and Particulars of Claim were served on the Second Defendant out of the jurisdiction on 8 October 2013.
- The Claim Form as served on both Defendants was in the form identified above. The main body of the Particulars of Claim was a 37-page document, to which I will refer as "the Particulars of Claim" in both its original and amended iterations. In addition there were individual Schedules specific to each Claimant. Each Schedule pleaded background information (such as date of birth), how that Claimants came to be injured, and the nature of the injuries suffered.
- The Particulars of Claim comprised seven sections: (1) Introduction, (2) Parties, (3) Factual Background, (4) Causes of Action, (5) Injury, loss and damage, (6) Claim to interest, and (7) Statement of Truth. Sections 1 and 2 require no further comment here.
- Section 3 provided background information about the mine, its ownership and operation, facts and matters relied upon in relation to the identification of risk and international standards on managing risk, the Defendants' group corporate standards and governance, historical negotiations and tensions, and (from [3.60] onwards) facts and matters relating to the involvement of the PNP and the events of 21-28 May 2012. Although I do not set those facts and matters out in this judgment, I have taken them all into account including, in particular, allegations of the direct involvement of the First and Second Defendant in requesting and making payment for the supply of police officers and coordinating and cooperating with the police who attended.
- Section 4 set out the Causes of Action on which the Claimants relied. It is to be remembered that the Particulars of Claim in their original form were served with the Claim Form, which expressly advanced claims under English law and made no reference to Peruvian law. Under the sub-heading "Applicable Law", the Particulars of Claim stated:
"4.1 It is premature for the Court to determine the applicable law in respect of the liability of the Defendants. It is the Claimants' case that pursuant to section 11 and/or section 12 of the Private International Law (Miscellaneous Provisions) Act 1995 liability in respect of risk management and auditing undertaken by the First Defendant fall to be governed by the law of England and Wales. It is averred that the appropriate juncture for the determination of the applicable law in respect of the actions of the First Defendant must await completion of disclosure, whereupon proper assessment can be made of the corporate structure of the First Defendant its control and relevant actions.
4.2 To the extent that Peruvian law applies, the Claimants' case is that Peruvian law is to be presumed to be identical to that of England and Wales unless and until the Defendants prove otherwise."
It will be noted that there was no express reference to the Second Defendant at all in this passage. Despite the words "To the extent that Peruvian law applies…" there was no allegation in this passage that it did apply.
- Under subsequent subheadings, the Claimants set out the claims that they were advancing in terms that were unequivocally based on English law concepts:
i) Under the sub-heading "Vicarious Liability" at [4.3] the Claimants alleged that the direct perpetrators of the injuries suffered by the Claimant "committed trespass to the person and false imprisonment"; and that the Defendants were vicariously liable for such trespass and false imprisonment for reasons that would typically be relied upon in a domestic English context, such as that the perpetrators' acts were "committed within the scope of their actual, implied or apparent authority"; or that the Defendants' servants or agents "were in a position to prevent and were obliged to prevent tortious conduct by those under their command and control" and that "the Defendants are vicariously liable for its [sic] servants' or agents' failure to do so"; or that the Defendants "are vicariously liable for the failure of its servants or agents to adequately select and/or supervise … independent contractors";
ii) Under the subheading "Common Design to injure and/or commit trespass to and/or unlawfully detain the Claimants" at [4.4]-[4.7] the Claimants alleged that the Defendants had a common design to quell, suppress and/or contain the protest and to detain the protestors; and that, in furtherance of that common design the Defendants engaged security forces and instructed them knowing that injury loss and damage was likely to occur to the Claimants; and that the Defendants had sufficient control over the perpetrators and deliberately or negligently failed to take any measures to stop them acting as they did; as a result of which the Claimants alleged that each Defendant is jointly liable for the tortious acts perpetrated in the course of quelling the protests;
iii) Under the sub-heading "Conspiracy to Injure" at [4.8] the Claimants alleged that the Defendants worked in concerted action with each other and the security forces to quell the protests when they knew or ought to have known that unlawful means would be used in that endeavour and knew or ought to have known that injury and damage would inevitably be caused to the Claimants and therefore intended that to happen;
iv) Under the sub-heading "False imprisonment" at [4.9] the Claimants alleged that "by reason of the matters aforesaid, the Defendants are jointly liable for the detention of the Claimants";
v) Under the sub-heading "Negligence" at [4.10]-[4.12.18] the Claimants pleaded the existence of a duty of care, the standard of care owed to the Claimants and that "the assault, unlawful detention and resulting injury of the Claimants and/or their deceased relatives were caused by the negligence of the First Defendant and/or the Second Defendant" in 18 specified particulars.
- In summary, Section 4 reflected the terms and limitations of the Claim Form in advancing claims under English law and not advancing any claims under Peruvian law.
- Section 5 claimed damages for unlawful detention and personal injury, and loss and expense suffered by the Claimants. It pleaded at [5.3] that "the ninth and tenth Claimants bring claims under the Law Reform (Miscellaneous Provisions) Act 1934, the Fatal Accidents Act 1976 and/or equivalent Peruvian law for losses flowing from the injury and death of their respective relatives." There was no further mention of Peruvian law, either in relation to the ninth and tenth Claimants or the nineteen other Claimants who were claiming in respect of personal injury but not death. Section 6 claimed interest pursuant to s. 35A of the Senior Courts Act 1981 in terms that would be familiar to anyone practising in the field of domestic English personal injury law.
- In closing submissions Miss Kaufmann QC initially accepted that the Claimants' claim as originally formulated brought claims in English law and did not bring claims in Peruvian law. She then adjusted her response: while continuing to accept that the claim was originally pleaded in English law she submitted that the original Claim Form and Particulars of Claim pleaded claims in Peruvian law in the alternative – but she submitted that nothing rode on that. I agree that the original Claim Form and Particulars of Claim pleaded the claim under English law. I also agree that there was a reference to Peruvian law in the alternative in relation to the claims of the ninth and tenth Claimants, but the reference was limited to the possibility of what would in English law be described as a fatal claim being brought under unspecified provisions of Peruvian law equivalent to the English 1934 and 1976 Acts that permit claims to be brought after death. Apart from that, the Claimants' claims were unequivocally brought by the Claim Form and original Particulars of Claim and Schedules in English and not in Peruvian law. Whether the Claim Form is viewed in isolation or in conjunction with the original Particulars of Claim and Schedules, [4.2] of the Particulars of Claim did not assert that the Claimants' claims were being brought in Peruvian law, either in addition to the English law claims or in the alternative to them. In my judgment Ms Kaufmann's initial acceptance was correct: her adjusted response was not.
- No claims under Peruvian law were then pursued until after 29 May 2014. It is common ground that, unless interrupted, that is the date by which the two year limitation period under Article 2001 of the Civil Code expired for all Claimants.
Summary of the Parties' Positions on Limitation
- There is substantial agreement about the applicable conflicts of laws framework. The claims are non-contractual, being framed in tort or delict. Rome II is applicable and provides the framework for determining the law applicable to the non-contractual obligations of the Defendants. Article 4 of Rome II has the effect that the law of Peru is the applicable law for the Defendants' non-contractual obligations arising in tort or delict, as Peru is the country in which the events giving rise to the damage occurred. Pursuant to Article 15(h) of Rome II "the manner in which an obligation may be extinguished and rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation" are governed by the law applicable to the non-contractual obligations i.e. Peruvian law. Matters of evidence and procedure are excluded from the Regulation and are to be decided in accordance with the law of England: see Article 1(3).
- The Claimants submit in relation to Claimants 1-21 that:
i) Time was interrupted when the Claim Forms on behalf of Claimants 1-21 were served on the Defendants. In theory Article 1996(2) of the Civil Code can apply to claims such as the Claimants'; and the notification requirements under either Article 1996(2) or 1996(3) are the same and are simple. Under either paragraph all that is required is that the Claimant should "notif[y] the Defendant in simple terms that the Claimant intends to assert [her or] his legal rights to secure a particular remedy in respect of an identified wrong the defendant has done to him. It is the Claimants' case that it is not necessary to identify any legal basis giving rise to the alleged right to a remedy." Elsewhere, the Claimants submit that all that is required in order to interrupt time pursuant to Article 1996(3) is to set out the petitorio. This, they submit, was done by service of the Claim Forms (and, a fortiori, by service of the original Particulars of Claim) and was effective to interrupt time in respect of any subsequent iteration of the Claimants' claim for damages arising out of the events giving rise to their claims as formulated in the original Claim Form (or, a fortiori, the original Particulars of Claim). The Peruvian law claims are to be regarded as subsequent iterations of the Claimants' claims that are within the scope of the interruption of time pursuant to Article 1996(3). On this basis, none of the Peruvian law claims are barred by limitation because the running of time in respect of them was interrupted by service of the original Claim Form (or, a fortiori, the original Particulars of Claim) i.e. by 14 August 2013 at the latest for the First Defendant and 8 October 2013 for the Second Defendant: see [41] above;
ii) The English Court has validly exercised its power pursuant to CPR 17.4(1)(b)(iii) to allow each amendment to the Particulars of Claim. 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; and
iii) If otherwise the Peruvian law claims would be barred by limitation, the Defendants have waived their right to rely upon a limitation defence by not raising it until mid-2017.
- Until the commencement of final oral submissions, the Claimants were also submitting that, once the amendments were admitted, s. 35(1) of the Limitation Act 1980 had the effect that any new causes of action related back to and were to be treated as brought at the same time as the original claims and, therefore, within time. This submission is abandoned. It is now common ground between the parties that s. 35 of the Limitation Act 1980 has no application to the facts of this case. I agree.
- The Defendants submit that:
i) It is not possible to interrupt claims such as those of the Claimants in these proceedings (i.e. claims of non-contractual liability for damages to be assessed) pursuant to Article 1996(2). Interruption of time for a particular claim (here, specifically, the Peruvian law claims) under Article 1996(3) requires service of the petitorio and the causa petendi, which service of the original Claim Forms and Particulars of Claim did not do since they did not set out the causa petendi of the Peruvian law claims on which the Claimant now wish to rely. Nothing was done that was capable of interrupting time under Article 1996(3) before the amendments that introduced the Peruvian law claims. By the time that those amendments were introduced, time had expired without interruption. With an eye to Article VII of the Procedural Code, the Defendants submit that Article VII can only apply to domestic law. Under Peruvian law, foreign law must be pleaded and proved as fact. For the purposes of these English proceedings, the Peruvian law upon which the Claimants now rely is foreign law; and the facts of foreign law were not pleaded before the amendments were introduced. Because of this and other alleged deficiencies in the original pleading of material facts, the factual basis for success in the Peruvian law claims was not set out in the original Claim Form and Particulars of Claim. Accordingly, the Defendants submit, the original Claim Form and Particulars of Claim could not and did not interrupt time for the claims now brought in Peruvian law;
ii) The amendments were not introduced pursuant to CPR 17.4(1)(b)(iii) but under CPR 17.1(2)(A). 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); and
iii) There has been no waiver, express or tacit, of the Defendants' right to rely upon a limitation defence. There was no unequivocal act demonstrating an intention not to rely upon limitation either at present or in the future.
- In relation to Claimant 22, it is common ground that no claim was served and no other act capable of interrupting time occurred within the period of 2 years allowed by Peruvian law. The Claimants make submissions based on CPR 17.4 and assert waiver in relation to Claimant 22's claim as they do in relation to those of Claimants 1-21.
- Since it is common ground that, in principle, service of a Claim Form and Particulars of Claim is the English equivalent of what is contemplated by Article 1996(3), the real issue arising out of the service of those documents goes to the scope of any interruption effected by their service, and whether that scope was sufficient to include the Peruvian law claims. That is the subject of Issues 1 and 2, considered at [57] and [107] below. The significance of CPR 17.4 is the subject of Issue 3, considered at [109] below. Waiver is considered under Issue 4 at [114] below.
Issue 1: to what extent did the issuing of the Claim Form and/or the original Particulars of Claim interrupt the period of prescription under Peruvian Law?
- I have set out the provisions of the Civil Code that are primarily relevant to extinction by prescription at [18] above. There is much common ground, which may be summarised as follows:
i) The relevant period of limitation for the Claimants' claims is two years from the date on which the injuries were sustained at the end of May 2012: Articles 1993 and 2001;
ii) A Defendant must invoke the defence of prescription. If not invoked by a party, the Court may not rule upon the issue: Article 1992;
iii) Article 1996 provides for the interruption of a period of prescription. It is common ground that the period of prescription in non-contractual claims such as those of the Claimants may be interrupted pursuant to Article 1996(3) in two ways, namely (a) "Summons with the claim", or (b) "another judicial act serving the debtor". Each of these involves notification by the Court; and
iv) Once interrupted under Article 1996(3) (and subject to the issue of scope of interruption referred to below), the relevant period of limitation does not run again until the conclusion of the relevant legal proceedings, at which point it begins again: Article 1998. This is different from the position that obtains where the period is interrupted under Article 1996(2): where that happens, the relevant limitation period starts to run again from the date of the interruption.
- The experts disagree about:
i) Whether the period of prescription in non-contractual claims such as those of the Claimants may be interrupted by an extra-judicial act pursuant to Article 1996(2). Professor Fernández says that it can; Professor Bullard says that it cannot;
ii) What are the minimum requirements to be included in the documentation in order for there to be interruption pursuant to Article 1996(3); and
iii) What is the scope of an interruption effected pursuant to Article 1996(3). Professor Fernández says that any interruption is effective for all future claims relating to the matters raised by the documents that interrupted the period. Professor Bullard says that the interruption is only effective for future claims that are included within the factual scope of the documents that interrupted it.
Does Article 1996(2) apply to non-contractual claims?
- This dispute is indirectly relevant to the wider questions about the scope of any interruption effected by the Claim Form and original Particulars of Claim; but it is convenient to address it first.
- The relevant articles for consideration are Articles 1333, 1334, 1985 and 1996 of the Civil Code, which are set out at [18] and [20] above. The dispute between the experts directly concerns the meaning of the second sentence of Article 1334 and whether those words refer to all of the content of Article 1985 or merely the second sentence of that Article. There is a degree of common ground between the experts in approaching this issue, as follows:
i) Article 1996(2) requires default to occur before the commencement of proceedings in order for it to be effective;
ii) If Article 1334 stopped at the end of the first sentence, it would apply to the Claimants' claims and would have the effect that the period of prescription could not be interrupted by notice pursuant to Article 1996(2). Instead, because the claims involve obligations to pay/provide sums of money "whose amount needs to be determined by means of judicial decision" default would only occur upon service of the demanda/summons;
iii) Article 1334 itself provides an exception to the general rule under Article 1333. The second sentence of Article 1334 therefore provides an exception to an exception. As a general principle, exceptions fall to be interpreted narrowly.
- There was a side-issue about the precise translation of the second sentence of Article 1334. The trial bundle's original version was "The provisions of Article 1985 are excepted from this rule." Professor Bullard queried this translation and said that the Spanish words "lo dispuesto" meant "what is established" or something similar. In response, the Claimants proposed that the correct translation is "The provision of Article 1985 is excepted from this rule." I do not consider that any of these versions differentiate or determine whether the sentence is referring to all or merely some of what is said in Article 1985.
- Professor Bullard set out his opinion in his first report. Subject to one qualification, his opinion is that since "the compensation [in the present cases] … needs to be determined by the judge before payment, default only occurs with a lawsuit. Therefore, a simple communication does not interrupt the limitation period. It is necessary to file and notify a lawsuit." In his opinion the sole qualification to the rule laid down by Article 1334 relates to the second sentence of Article 1985, which determines the date from which interest will run in such cases. In his oral evidence he maintained that Article 1985 addresses three separate things: first, what may be awarded as compensation; second, the need for a relationship of adequate causation between the act and the damage that is to be compensated; and, third, that in such cases interest runs from the date of damage. His opinion is that the first two of these things are not relevant objects for the exception to Article 1334 because they have nothing to do with the timing of default; but the third is a relevant object because it reverses the general rule that interest runs from the date of default.
- Professor Fernández did not address this argument as such until giving his oral evidence. His position when compiling the Joint Statement was that the Claim Form sufficed to interrupt the period of prescription as notice pursuant to Article 1996(2). This position was based upon a misunderstanding of the nature of the Claim Form and was abandoned when he understood its nature correctly; but he remained of the view that effective notice could be given pursuant to Article 1996(2) in claims such as these. When he came to address Professor Bullard's opinion directly, he expressed disagreement in strong terms, as follows:
Q. The present case falls within the scope of Article 1334 doesn't it?
A. Of the second part of Article 1334.
Q. Default is incurred from the date of the summons; yes?
A. No. I will explain. Under the Peruvian system there is a double-default system. In contractual liability the default system is ex persona ie requires communication, requires a claim, expressly. The second paragraph under 1334 means that in non-contractual liability there is default by default because from the date that there has been a loss, a patrimonial loss or personal integrity has suffered a loss, this brings about an entitlement to reintegrate such laws and you will forgive me for the expression I'm about to use, above all, my Lord, out of respect this is known by a first year law student in Peru.
Even if some of the language is opaque in translation, the gist is clear. Later on he said that Professor Bullard's interpretation was "entirely erroneous". Professor Fernández' answer is consistent with the fact that time runs from the date of injury in a non-contractual claim such as those of the Claimants. It does not of itself determine or support the discrete and different proposition that the prescription period applicable to such claims can be interrupted by notice pursuant to Article 1996(2).
- I start by examining the text of Articles 1334 and 1985. The first point to be made is that the second sentence of Article 1334, however translated, is widely framed and capable of carrying a meaning that refers to the whole of what is set out in Article 1985: the whole of Article 1985 could be described as "the provision/provisions of Article 1985" or "what is established by" Article 1985. The sentence is so general that it cannot be said, of itself, to exclude any particular part of Article 1985.
- Article 1985 itself is more complicated. It covers three topics: what compensation includes; the need for a relationship of adequate causation; and the time from when interest will run. I accept and agree with Professor Bullard's opinion that the first two topics are not relevant to the question of default or when it occurs. Article 1985 falls within Section 6 of the Civil Code, which is headed "Non-contractual Liability". While the heads of compensation listed in the first sentence may all arise in claims alleging non-contractual liability, some (e.g. lost profits and non-material damages) may also arise in claims alleging contractual liability. On any view, the list of what is included in compensation does not list all possible heads of damage in claims alleging non-contractual claims. For example, there is no mention of damage to property. A submission that the first sentence of Article 1985 covers all non-contractual liability therefore faces three problems: (a) if that was what was intended, it could easily have said so but does not do so; (b) if the limited categories of heads of damage that are said to be either covered by or included in compensation are relevant to the question of default at all, they suggest a more limited category of cases than "all non-contractual liability"; and (c) as a matter of language, the first sentence is concerned with heads of damage that may be recoverable as compensation and the need for an adequate causal relationship, not default or prescription. As a matter of textual interpretation in context, therefore, the first sentence of Article 1985 does not support the Claimants' submission.
- On a wider view, it is necessary to look at the consequences that would follow if the Claimants' submission is correct. The first sentence of Article 1334 would, if it stood on its own, apply to all claims (i.e. both contractual and non-contractual) where the amount of the sums of money being claimed needs to be determined by means of judicial decision. On the Claimants' case, the reference to Article 1985 excepts from this rule only non-contractual claims where a judicial decision is required in order to determine the sums of money being claimed. This would mean that there would be separate rules for claims where a judicial decision is required, the application of which would depend on whether the claim was contractual or non-contractual. No policy or rational justification has been advanced to support such a distinction, and it appears to be entirely arbitrary. It would have the effect that, if a Claimant brought a contractual claim for loss of profits that required a judicial determination, default would only occur on the date of the summons and so the period of prescription could only be interrupted pursuant to Article 1996(3); but if a non-contractual claim for the same loss of profits were to be brought, default would occur earlier and the period of prescription could be interrupted either pursuant to Article 1996(2) or Article 1996(3). Professor Fernández did not offer a reason why this should be so. Professor Bullard could not understand the basis for such a distinction, and nor can I.
- There is, however, a coherent policy justification for the second sentence of Article 1334 referring relevantly to the second sentence of Article 1985 only: it was necessary to clarify that, in non-contractual claims where a judicial decision is needed in order to determine the sum of money payable as compensation, interest runs from the date of damage and not from the date of the issue of the summons. Some support for Professor Bullard's opinion on this point is to be found in a passage at numbered paragraph 21 of Case 2279-2014, which the Peruvian Supreme Court concluded by citing with apparent approval a passage from an article he had written previously:
"This [i.e. accrual of interest from the date of damage pursuant to Article 1985] is a clear exception to the default rules that are established … that only after the establishment of late payment does interest accrue. Likewise, in accordance with Article 1334, regarding the obligations to give an amount of [money] that requires a determination by [a judicial] body, the default starts from the lodging of the claim. However, this same article excludes the case of article 1985. The reason is that it is not necessary to find default in a case of extra-contractual civil responsibility for interest to accrue, which rule is fully in contradiction to what occurs in the payment for contractual responsibility."
I accept that this passage is generally supportive of the Defendants' submission, but it is not necessary to my conclusion on the point now at issue.
- On this issue I prefer the evidence and opinion of Professor Bullard and, despite Professor Fernández' strongly held views to the contrary, find that the second sentence of Article 1334 refers relevantly only to the second sentence of Article 1985 and that, in accordance with Professor Bullard's opinion on this point, "what the legislator was being careful about was the avoidance of contradiction when reading the terms of 1334 and the last part of Article 1985."
- For these reasons, I find that a period of prescription in non-contractual claims such as those of the Claimants may not be interrupted by an extra-judicial act pursuant to Article 1996(2). This conclusion is relevant to the Claimants' submission that the requirements for a notice that is effective in interrupting the period of prescription should be the same whether the notice is given under Article 1996(2) or Article 1996(3). The apparently simple attraction of that submission fades if the period of prescription for certain claims can only be interrupted by notice pursuant to Article 1996(3) and not by notice pursuant to Article 1996(2). However, even without that distinction, the Claimants' submission is unconvincing because of the distinctively different treatment of notice pursuant to Articles 1996(2) and Articles 1996(3). First, the mechanism of giving notice (without and with the institution and service of legal proceedings respectively) is different under the two provisions, which is not obviously necessary if the requirements of a valid notice are the same under each. Second, giving notice by service of a demanda pursuant to Article 1996(3) requires the provision of a level of information that is not mentioned either expressly or by implication in Article 1996(2)[7]. Third, the period of interruption is different, depending upon which route is followed: see [57(iv)] above. Fourth, service of a demanda carries other material consequences that do not follow service of notice pursuant to Article 1996(2): see Article 438 of the Procedural Code at [27] above. Similar considerations arise if the notice pursuant to Article 1996(3) is by some other judicial act rather than by service of the demanda. These differences are evidently deliberate and leave me unpersuaded that the requirements of a valid notice under Article 1996(2) either should be or are the same as those under either limb of Article 1996(3).
What are the requirements for notice pursuant to Article 1996(2)?
- There was a measure of agreement between the experts about what was necessary to constitute notice under Article 1996(2) that would interrupt the period of prescription. Both described it as being relatively simple; but their evidence went further than that. Professor Fernández gave his answers on the basis that Article 1996(2) could be applicable to non-contractual claims. In that context he said that a notification under Article 1996(2) must "indicate what I'm seeking, together with the explanation and the grounds that justify my claim." As an example of a notification under Article 1996(2) after a straightforward road traffic accident, he suggested "You ran me over at this juncture on set date and after that I have had to be in hospital. I cannot work and have a series of collateral damages and for these from you I'm seeking [the claimed remedy]." His evidence was that this would be sufficient to interrupt the period of prescription and that, if a demanda were subsequently issued, it would have no impact on interruption "if I'm claiming the same things" – which begs the question about scope of interruption to which I will return.
- Professor Bullard's answers about what was necessary under Article 1996(2) were predicated on the distinction between contractual claims, for which interruption could be effected under Article 1996(2), and non-contractual claims for which, in his opinion, it could not: see above. In that context he accepted that notification under Article 1996(2) tends to be simple "always as long as you indicate – you're clear what contract it is referring to and which one is the obligation that has not been complied with, fulfilled." He accepted that, if Professor Fernández was right and Article 1996(2) could apply to non-contractual claims, "all that would be required would be a simple communication." When pressed on the meaning of "simple" he maintained that, even in a contractual claim, if there was a breach of contract that led to damages (by which, in context, he meant damages that need to be determined by judicial decision) the period of prescription could not be interrupted by notice under Article 1996(2) but required notice pursuant to Article 1996(3). That said, the gist of his evidence was that notification pursuant to Article 1996(2) could be "simple" because reference to the contract, the breach and the remedy sought would enable the Defendant to know what was being claimed and why.
- I note in passing that neither expert referred to relevant doctrine on this point. That said, and making due allowance for the different contexts in which the experts explained what would be required for an effective notice under Article 1996(2), they have in common the requirement that the notice should go beyond simply stating the remedy that is being claimed and should set out (in Professor Fernández' words) "the explanation and the grounds that justify my claim" or (in Professor Bullard's words) the basis for the claim (e.g. the contract) and the obligation that has not been complied with or fulfilled. Taken together, this evidence indicates and I find that even a "simple" notice under Article 1996(2) must contain sufficient information to enable the Defendant to understand not merely the remedy that is being sought but the basis on which the remedy is said to be justified. In other words, the substance of the claim that is being advanced must be apparent from the notice.
What are the requirements of notice pursuant to Article 1996(3)?
- In order to see what is required for effective interruption under Article 1996(3) it is necessary to look at the relevant provisions of the Civil Code and the expert evidence. I have set out the relevant provisions of Peruvian law at [21]-[32] above.
- Professor Fernández' opinion was set out at [8.1] of the Joint Statement. In summary, his opinion was that (a) the critical part of the demanda is the petitorio alone; and (b) the petitorio in the present case has remained unchanged throughout because it "has been since the beginning, for compensation, regardless of the type of liability to be analysed and, if appropriate, to be determined by the Judge." He supported this by reference to Article VII of the Procedural Code, asserting that "all legal classifications of the facts supporting the claim are ultimately the judge's responsibility." On first being asked questions about this opinion in his oral evidence he maintained that the only essential requirement to interrupt limitation was the petitorio – "what is asked for or requested." However, on reflection he changed his stance and added "the factual grounds that justify … that petitorio…". In essence, therefore, his evidence is that the petitorio[8] and that part of the causa petendi identified in Article 424(6)[9] are necessary prerequisites to interrupting the period of limitation pursuant to Article 1996(3), but not that part of the causa petendi identified in Article 424(7)[10], which he excludes on the basis of Article VII. It may be noted that his shift in position brought his opinion in relation to the requirements for interruption under Article 1996(3) closer to those that he had identified for interruption under Article 1996(2): see [70] above.
- I accept Professor Fernández' modified opinion to the extent that it refers to a claim brought in Peru under domestic Peruvian law. The combined effect of Article VII and Article 190 of the Procedural Code is that the Peruvian Court is assumed to know Peruvian law and is to apply it appropriately to the facts alleged to support and sustain the claimed remedy, whether the correct legal basis for the remedy under domestic Peruvian law is invoked or not. Valid notice pursuant to Article 1996(3) therefore does not require that the demanda identify the correct legal grounds in order for time to be interrupted in relation to any and all claims under Peruvian law that may arise out of the petitorio and supporting facts alleged. However, that is only the starting point for present purposes, because Article VII expressly prohibits the Peruvian Judge from basing his decision on facts that are different from those that have been alleged by the parties. No doctrine or decision has been advanced that would support a conclusion that foreign law is within the meaning of "the law" in Article VII; and there is no good reason why it should be. To the contrary, the Peruvian Court is not assumed to know foreign law, which supports the conclusion that it needs to be pleaded and proved like any other fact that is not known by the Court. I reject the submission (based upon the evidence of Professor Fernández) that facts relating to foreign law are in a special category and are an exception to the prohibition against the Judge basing his decision on facts different from those that have been alleged by the parties: there is neither law, doctrine nor good reason to support it.
- There is a further policy justification which underpins much of Professor Bullard's evidence in this area of the case: the purpose of a valid demanda is that the Defendant should know and be able to defend himself against the claim to which he is to be exposed. A Peruvian Defendant may also be expected to know Peruvian domestic law, so that a notice which does not invoke, or invokes erroneously, the applicable provisions of Peruvian law will still be a satisfactory notice to alert the Defendant to the Claimants' intention to assert his rights under Peruvian law. By way of analogy, the simple notice pursuant to Article 1996(2) that Professor Fernández suggested would be appropriate after a road traffic accident would enable the Defendant to know with sufficient clarity why the claim was being brought against him under Peruvian law: see [70] above; but the same cannot be said of a claim being brought under foreign law of which a Defendant may be entirely ignorant.
- I therefore conclude that, in accordance with the opinion of Professor Bullard, if a foreign law claim is to be pursued in Peruvian proceedings, the necessary provisions of foreign law must be pleaded and proved as facts. It is not open to the Peruvian Judge to decide a case on the basis of foreign law except to the extent that this is done, either on the basis of Article VII or otherwise. This requirement provides assurance for the Court, which will have the opportunity to determine the relevant foreign law as fact; and it provides assurance for the Defendant, who will have the opportunity to defend himself against a claim founded on a system of law of which he may otherwise be ignorant.
- These considerations lead, in my judgment, to the central issue for present determination. There is no doubt that the Claim Form and original Particulars of Claim advanced a claim for a remedy (equivalent to a petitorio) and pleaded facts (equivalent to the causa petendi required by Article 424(6)) that would be sufficient to sustain a finding of liability under domestic English law. Under the principles of Peruvian law discussed above, I would accept that service of the Claim Form and original Particulars of Claim would be sufficient to interrupt time in respect of all claims capable of arising under English law out of the facts alleged, whether the relevant causes of action under English law were accurately identified or not. This is because the Claim Form and original Particulars of Claim, taken in conjunction with Article VII, would be a suitable vehicle that would permit the Court to determine any claim under English law that fell within the scope of the petitorio and causa petendi whether the correct legal basis in English domestic law was invoked or not.
- The question is then whether, allowing for the impact of Article VII that I have accepted above, service of a demanda interrupts time in respect of a claim which is not disclosed or sustained by its contents because one or more material facts are omitted. I state the question in this way because of my conclusion that facts disclosing or sustaining the existence of applicable foreign law do not constitute a special category but require to be pleaded and proved like any other material facts.
- The starting point is straightforward. Before service the Claimant may change the demanda: Article 428; or the Judge when reviewing a demanda before service may identify an omission or defect, in which case he will order the Claimant to remedy the omission or defect. If the Claimant does so, the Judge will declare the remedied demanda admissible for service: see [26] above. If at the end of this process the demanda were still to be deficient because it fails to remedy the omission, and that deficiency were identified by the Judge, it should be declared inadmissible: see [25] above. So a demanda that is deficient in failing to allege material facts should not be served and, if not served, could not give effective notice pursuant to Article 1996(3). In Professor Fernández' words, the Judge "may reject the claim because he is not convinced that the facts before him are clear and right. At that point there is no interruption of limitation. Or he may consider the facts sufficient and serves the claim."[11] This process is designed to ensure that relevant facts and means of proof are included in a demanda so that the Defendant may know the case that he has to meet. It does not lend support to the Claimants' submission that a demanda will interrupt time in relation to any and all claims that may arise out of the same general circumstances, whether the demanda identifies the necessary facts to sustain them or not. Viewed in this light, Article VII is an exception to the general rule, specifically based upon the Peruvian Court's assumed knowledge of Peruvian law.
- Professor Fernández was pressed both by Counsel and the Court to clarify his position on the effect of a demanda which pleaded inadequate facts. The particular example used was to ask whether a demanda that could not sustain a finding of liability under Article 1981 (which stipulates for vicarious liability when someone under the orders of someone else causes damage in the exercise of his subordinate role) because inadequate facts were alleged could interrupt the period of prescription for a claim under Article 1981. His answer ultimately was "Yes. There would have to be a new claim." The implications of this answer were not clarified.
- In this context it is relevant to consider what may happen after the Judge has declared the demanda to be admissible and it has been served on the Defendant in circumstances that may cause a period of prescription to be interrupted. Some time was spent with the experts on the mechanisms by which additional facts could come to be pleaded by a party who had not included them in his original demanda or response. Two different situations may arise:
i) The Defendant may plead an exception under Article 446(4) on the basis that the applicable law is not clear. If the Defendant does so and the Judge decides that the exception is well founded (or "grounded"), then the Claimant is given the chance to adjust the claim and submit his adjusted claim. This does not involve starting again from the beginning: in English parlance it can be done by amending the original demanda. Once that is done, the Defendant may file any defences that he sees fit;
ii) In his response, the Defendant may raise new facts – which could include factual assertions about the applicability of foreign law. In that event, the Judge may give a period for new evidence to be submitted concerning those new facts pursuant to Article 440. There is a distinction, however, between submitting new evidence in response to new facts raised by the opposing party, and either adopting or bringing in new facts that affect the basis of claim. The position was made clear by Professor Fernández, whose basic position was that the petitorio and the facts constrain the scope of what the Judge can find and cannot be modified after service, but who said that when the one party "[presents] new facts … the other party is allowed their right to respond to those, then both parties adding, with respect to those new facts, any means of evidence they consider relevant." The effect is to ensure that a person confronted by new facts has the right to protect herself against them. To this extent the evidential preclusion is relaxed and re-applies after the period stipulated by Article 440. Professor Bullard's opinion was that if this process led to the conclusion on the part of the Claimant that it wanted to adopt the facts and those facts would affect his existing causa petendi then a new demanda was required.
- Professor Fernández' answer about what would happen if inadequate facts were pleaded to sustain a claim and Professor Bullard's answer about what would happen if a Claimant wanted to adopt new facts which affect his existing causa petendi have an interesting common denominator: each answer recognises that a Defendant is not to be put in jeopardy of an adverse finding on facts that have not been properly pleaded in the petitorio and causa petendi. This seems entirely consistent with, and supportive of, Professor Bullard's opinion that the Peruvian civil procedure outlined earlier in this judgement is underpinned by the principle that a Defendant should have the opportunity to understand and address the claim that is brought against them. To my mind it is also entirely consistent with a view that a Defendant should not be deprived of a potential limitation defence in respect of a claim that has not been properly articulated by the presentation of sufficient material facts.
Decided Cases
- In his evidence Professor Fernández referred to decided cases, to which I now turn.
- In Cassacion 2078-2007 Piura the event for which the Claimant claimed compensation occurred on 22 June 2002. The Claimant issued proceedings in the Labour Court, which were notified to the Defendant on 9 July 2002 and which resulted in a resolution on 1 August 2003 that was made final on 5 July 2004. It appears from the eighth and ninth holdings that the Defendant at some stage failed to take a limitation point that was available to it and thereby waived a limitation defence. By the eleventh holding, the Transitory Civil Chamber of the Supreme Court of Justice of the Republic held that a case of interruption of prescription had come about as a result of the filing of the labour demanda, with the result that the period of prescription began to run again at the conclusion of the labour proceedings on 5 July 2004. On that basis, the current proceedings had been brought in time.
- When Professor Bullard was cross-examined about this case, the point was made that claims in the Labour Court are generally contractual and that the (contractual) claim in the Labour Court was held to have interrupted the period of prescription for the non-contractual claim in the current proceedings. Although the issue was not satisfactorily resolved in cross-examination, I see no difficulty with this being the result in a case involving only domestic Peruvian law, because of Article VII. On the assumption that the factual basis of the claim in the labour proceedings and the subsequent Court proceedings is the same, the demanda in the Labour Court proceedings could and would be sufficient notice under Article 1996(3), since the requirement that the Judge apply the correct law even if it has not been invoked or has been invoked erroneously means that the invocation of a contractual cause of action in the Labour Court demanda is irrelevant when considering whether adequate notice was given of a non-contractual claim.
- For this reason, I do not find it necessary to refer in detail to other decisions involving only Peruvian domestic law where the Court decided a case by applying a legal approach to the facts alleged that differed from the legal approach proposed by the parties. It does appear, however, that a Court that departs from the legal approach invoked by the parties is under a duty to give reasons for doing so and, in doing so, should not depart from the factual basis alleged by the parties: see Case 840-2014 North Lima.
- Cassacion 3991-2009 Lima was a decision of the Permanent Civil Chamber of the Supreme Court of Justice of the Republic. The Recitals stated that the claim was for compensation for non-contractual liability for alleged harm to the Claimant's honour. The alleged harm occurred on 25 October 2002 on the Claimant receiving a letter from the Defendant. The limitation period of two years commenced the following day. In 2003 the Claimant filed a complaint against the Defendant with INDECOPI (a Peruvian administrative tribunal) requesting that the assault upon his honour be stopped. The issue before the Court was whether the filing of that complaint (which was regarded as an administrative complaint) should be considered as interrupting the limitation period pursuant to Article 1996(3). That involved determining whether the summons issued by INDECOPI against the Defendant implied a notification to the Defendant of the Claimant's non-contractual claim for compensation. It was held that, upon being notified by INDECOPI, the Defendant became aware that the Claimant felt that their honour had been harmed and was requesting an administrative analysis in order to obtain a restraining order to prevent any further letters being sent.
- Recital 8 stated that Article 1996(3) "requires that the debtor be notified without specifying the content of said notification; however, it is reasonable to interpret that the debtor for alleged non-contractual liability must at least be made aware via the said notification that the alleged creditor is imputing him with the commission of unwarranted harm, that is to say compensable, although no compensatory amounts are fixed." The Recitals continue by stating that, when INDECOPI notified the Defendant, the Defendant was clearly informed that the Claimant considered that the Defendant had caused unjust harm to them because they were made aware of the existence of a denunciation based on the alleged violation of the Claimant's subjective right to honour. That communication "suffices with regards to the claimant's invocation of alleged harm" as a result of which the limitation period that started in October 2002 was interrupted in 2003 when INDECOPI notified the Defendant. The INDECOPI proceedings were appealed to the Constitutional Court which issued its ruling in favour of the Claimant in 2007. Since that was when those proceedings concluded, the interrupted period of limitation started again then pursuant to Article 1998 and the present proceedings were started in 2008, by which time the (re-started) period of limitation had not yet expired.
- Taken at face value, the requirements set out in the Eighth recital fall well short even of what Professor Fernández would require. The Recital merely stipulates that at least "notification that the alleged creditor is imputing [the Defendant] with the commission of unwarranted … that is to say compensable [harm]" must be given. This falls short of "what is asked for or requested" and "the factual grounds that justify … that petitorio": see [74] above. It even falls short of his formulation of what is required under Article 1996(2), namely that the notice must "indicate what I'm seeking, together with the explanation and the grounds that justify my claim": see [70] above. The report of the case does not set out or specify the actual terms of the notification. Professor Bullard's evidence (which I accept) was that, although the proceedings before INDECOPI could not include a claim for damages or compensation from that tribunal, the application to INDECOPI would have included the factual and legal grounds so that the Claimant's claim as subsequently pursued in the Court proceedings had already been presented in the INDECOPI proceedings. On that basis, there was no discrepancy between the claim as advanced in the INDECOPI proceedings which were regarded as giving notice and the claim later pursued through the Court. Furthermore, Article 18 of Legislative Decree No. 1033-Law on the Organisation and Functions of INDECOPI stipulates that, in matters falling within the competence (which I take to mean jurisdiction or remit) of INDECOPI, there can be no resort to Judicial Process until the administrative route through INDECOPI has been exhausted. The fact that the INDECOPI proceedings in question in that case were issued in 2003 but did not conclude until 2007 gives support to Professor Bullard's opinion that special considerations may apply in such cases, lest the Claimant be automatically put out of time by having to pursue the INDECOPI route first.
- In this state of the evidence, I do not find Cassacion 3991-2009 Lima persuasive or helpful when deciding what is required in cases not involving INDECOPI in order to interrupt the period of prescription by notice pursuant to Article 1996(3).
- In Cassacion 2127-2013 North Lima the Claimant brought a claim in January 2010 against the Defendants for the formal nullification of the public Record of a Purchase and Sale Agreement for Shares and Rights dated 26 December 2000 which had been granted by one Defendant ("the Grantor") to the other in relation to a property in Lima. In addition the Claimant sought the cancellation of an entry in the Lima Property Register which contained the registration of the purchase and sale of the shares and rights. The Claimant alleged that her father, as co-owner of the property, had been fraudulently persuaded to execute documents and had subsequently been the subject of improper Court proceedings which had led to the award of the property to the Grantor. The Grantor pleaded limitation, arguing that time expired in 2002. The Court at first instance upheld the defence of limitation and its decision was upheld by the first tier Court of Appeal. The Permanent Civil Division of the Supreme Court of Justice of the Republic reversed the decision of the Courts below.
- The legal bases for the Court's decision referred to limitation as a defence that bars the action rather than the right and noted that the effect of interruption pursuant to Article 1996 was to "[cancel] the lapse of time which has gone by until the interruption and the beginning of a fresh count, in other words, the appearance of a cause of interruption fixes a new start date for the said limitation period, and the previous count is as though it had not existed…". In a passage specifically relied on by the Claimants, the Court continued:
"The rule contemplated at [Article 1996(3)], referring to citation ("citacion") with a demanda or another act by which the debtor is notified, … , constitutes an interpellation which operates when the creditor carries out some act which entails the protection of her/his rights, that is, she/he is concerned about his/her credit, and requests its fulfilment. In this way, one may infer that this rule provides for two cases which may interrupt limitation, that is citation ("citacion") with a demanda or any other act which entails notification to the debtor. In this regard, it is important to mention what is stated in the Statement of Motives of the Civil Code in the last section which refers to the rules: "… sub-clause 3 refers not only to citation ("citacion") with a demanda but also to any other act which brings with it notification to the debtor." Ariano Deho also comments on this rule by saying: "Obviously they must be acts which show (to the debtor) that the creditor has come out of his lethargy.""
- The decision of the Court was that the Defendant had been notified by the interim measure of recording the Claimant's demanda on 5 January 2011 in the Public Registry, which was before the expiry of the limitation period that was held to apply. This was achieved by applying "the principle of the public availability of Registry information provided in article 2012 of the Civil Code, according to which it is presumed without possibility of rebuttal, that all individuals are aware of the content of public records." In order to fall within Article 1996(3) the act of registering the interim measure must have been treated as service of the demanda or another judicial act serving the debtor, though the reasoning behind this does not appear from the report of the decision and was not addressed by the experts. Whether this case is to be treated as a case falling under the first or the second limb of Article 1996(3), Professor Bullard's evidence (which I accept) is that the interim measure would have included the information contained in the demanda.
- The doctrinal statement that the act must "show [the debtor] that the creditor has come out of his lethargy" is resonant and magnificently vague. It appears in context to be referring to notification under the second limb of Article 1996(3) ("… another judicial act serving the debtor…"). If the Claimants are right in their submission that the information required under each of the limbs of Article 1996(3) is the same, it appears to be frankly inconsistent with the requirement of the first limb that the demanda must be served, with all the information that implies. It also falls well short of the requirements said by the experts to be necessary for notification under Article 1996(2). The passage relied upon by the Claimants does not address or identify with any precision what are the actual requirements for notification under Article 1996(3) and, because the reference to coming out of lethargy does not give any indication of what the minimum requirements may be, I do not find it helpful in deciding what they are.
- In summary, I find the cases upon which Professor Fernández and the Claimants primarily rely of limited assistance. That is because of the lack of any detailed exposition of what is required to interrupt the period of prescription by notice pursuant to Article 1996(3) or the scope of the interruption that is effected and the lack of any consideration at all of the requirement that, under Peruvian law, foreign (i.e. non-Peruvian) law must be pleaded and proved as facts.
The scope of interruption by service of a demanda
- It is convenient to take stock at this stage. I am influenced by the fact that Articles 1996(2) and 1996(3) are not the same (in the ways outlined above) and that, as I find, notice pursuant to Article 1996(2) is not available in claims such as the present, to which Article 1334 applies. Article 1996(3) carries the implication of service of a valid demanda (subject to the procedural steps outlined above) which will include the petitorio and the facts on which the petitorio is grounded, "set out … in order and with clarity". One of the features of the Peruvian process is that the Judge may not base his decision on facts different from those that have been alleged by the parties. Another is that (a) the requirements of a valid demanda, (b) judicial scrutiny before service, (c) the possibility of amendment before (but not after) service, and (d) the Peruvian law doctrine of preclusion all combine to define and circumscribe the risk to which the Defendant is subject in the proceedings and enable each party to know the scope of what is being alleged against them.
- There is a clear distinction between Peruvian law's general attitude to material facts on the one hand and to the assumption that the Court knows Peruvian law on the other. This distinction, and the ability for changes to be made to the demanda before service and, in some circumstances, after initial scrutiny by the Judge introduce a degree of procedural flexibility both in relation to domestic law and material facts. 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.
- Taken as a whole, I conclude that the processes of Peruvian law that I have described above illustrate two things of particular relevance to the present issue. The first is that there is a distinction between what may happen before proceedings are issued and served and what happens after the Claimant has submitted herself or himself to the processes of Peruvian litigation. The second is that those processes appear to me to be designed to enable the Defendant to know the case and the risk he or she has to meet. In that respect the structure of the processes that I have outlined provides support for Professor Bullard's opinion, which I accept on this point, that the purpose of a valid demanda is that the Defendant should know and be able to defend himself or herself against the claim (or claims) to which he or she is to be exposed.
- The Claimants submit that "the plain meaning of [Articles 1996, 1997 and 1998 when read together] is that as long as the proceedings remain extant in respect of the remedy sought, prescription is interrupted and the Court can proceed to determine the case on whatever legal basis is put forward by the parties, or which it considers appropriate to apply in accordance with Article VII … having given the parties the opportunity to respond." I disagree for a number of reasons that emerge from what I have said above and which may here be shortly summarised:
i) The petitorio is not the sole requirement for valid notice pursuant to Article 1996(3). The scope of the notice is also defined and circumscribed by the causa petendi;
ii) While Article VII gives the Court great flexibility in relation to the application of domestic Peruvian law, it does not provide the same or any flexibility in relation to foreign law, which must be pleaded and proved as material facts if it is to be relied upon;
iii) Subject to the exception provided by Article VII, the demanda must set out the facts necessary to sustain the claim that is to be advanced. No good reason has been advanced to explain why the scope of interruption effected by service of such a demanda should go wider than the limits set by the petitorio and the causa petendi. Understood in this way, I would accept Professor Fernández' answer as set out at the end of [81]. If that is not what he meant, I do not accept it;
iv) Articles 1996, 1997 and 1998 do not either singly or cumulatively say or imply that the scope of the interruption effected by service of a demanda is defined solely by the terms of the petitorio or the remedy sought;
v) Whether new facts are introduced by amendment of a demanda in existing proceedings or by withdrawing the existing proceedings and starting again with a "new" demanda, there is no provision for relating back the time of the amended or new claim to the date of service of the original demanda.
- The Claimants go on to submit that accepting Professor Bullard's opinion on the scope of interruption would lead to absurd results. They suggest an example where a Claimant has kept a claim alive for 20 years by repeated notices under Article 1996(2) and then issues proceedings which again interrupt the period of prescription. It is submitted that a failure to plead foreign law at that stage could lead to the result, characterised as absurd, that a claim that has been kept alive for 18 years by "simple" notices under Article 1996(2) would then become time barred because of the failure to plead foreign law. The example is not persuasive, for a number of reasons:
i) In the context of claims such as the present, it assumes that the period of prescription can be interrupted by "simple" notice pursuant to Article 1996(2): I have held that it cannot;
ii) Even in the context of claims where the limitation period could be interrupted by notice under Article 1996(2), it assumes that notice could be valid and effective to interrupt the period of prescription for a claim under foreign law even without mentioning foreign law in the notice. It is not necessary to my overall conclusions to find whether this assumption is correct; but I doubt that it is, because a notice that did not refer to foreign law that was to be an integral part of the future claim does not appear to me to satisfy the requirements for notice pursuant to Article 1996(2) as explained by the experts: see [70]-[72] above;
iii) In any event it ignores the valid distinctions that may be drawn between conduct before proceedings are issued and conduct after a Claimant has formally submitted to the jurisdiction of the Court and its procedures.
- As a further in terrorem/absurdity argument, the Claimants suggest an example where the Court requires the Claimant to halt a case and issue new proceedings, rather than amend the demanda at a time before the period of prescription would have expired. It is submitted that the Claimant would be prevented from doing so by Article 438(3): see [27] above. I do not accept the premise that underlies the submission. Article 438 of the Procedural Code deals with the consequences that flow from and during the existence of proceedings. It does not state or imply that, in the circumstances suggested by the Claimants' submission, the Claimant would be debarred from instituting fresh proceedings. The opposite conclusion is supported by the terms of Article 1997 which provides that, despite the apparently open-ended terms of Article 438(4), if proceedings are withdrawn, are abandoned or become defunct, the interruption that they had effected is invalidated. I do not accept that, in the circumstances outlined by the Claimants, a Claimant would be precluded from bringing fresh proceedings.
- A further suggested example is that the Court gives the Claimant the opportunity to amend the demanda but at a time when prescription has already occurred. The Claimants submit that, on Professor Bullard's and the Defendants' approach the claim would have to be terminated. I accept that this would follow if the amendment was essential to enable the claim to be sustained. The Claimants describe this as a draconian outcome. It certainly has detrimental consequences for the Claimant whose claim is terminated. But that is a consequence of the Peruvian law of limitation and the balance struck by Peruvian law between the interests of Claimants and Defendants (of all shapes, sizes and relative strengths).
- I reject outright the subsidiary submission that, if this was the correct outcome, there would be a mass of doctrine on the point. Without implying any criticism or entering into the reasons that have underlain the procedural approach in this case, they are unusual: Peruvian subjects who are injured by the PNP during a protest at a mine in Peru bring claims in England under English law on the basis that a parent company that is registered in England and Wales has an involvement; and, although the proceedings are also brought against the Peruvian mine-owners in respect of their conduct in Peru in relation to the Peruvian Claimants' allegations, no claims under Peruvian law are brought until after expiry of the limitation period. I am not in a position to assert that the same or even similar proceedings have never happened before; but there is no evidence that they have and I am not prepared to assume that they are commonplace or such as would give rise to significant amounts of doctrine. In any event, the absence of doctrine merely has the effect that the materials available to the English Court are less substantial than they might otherwise be.
- The reasons and considerations set out above lead me to favour the opinion of Professor Bullard over that of Professor Fernández on the scope of interruption effected by service of a demanda. I therefore conclude and find that, under Peruvian law, service of a demanda (whether original or as amended) is effective to interrupt the period of prescription in respect of those claims that fall within the ambit of the petitorio and the causa petendi, which define and circumscribe the scope of the proceedings and the extent of what a Judge may find. Article VII is applicable only in respect of domestic law. Foreign law must be pleaded and proved as facts. If and to the extent that the petitorio and causa petendi do not disclose facts that are capable of sustaining a claim, the service of the demanda is not effective to interrupt the period of prescription in relation to that unsustainable claim.
- Applying these findings to the facts of the present case as set out above, service of the Claim Form and the original Particulars of Claim did not interrupt the period of prescription for any claims under Peruvian law, including those subsequently added by amendment.
- I record that the parties both submitted analyses of the extent to which the amendments to plead claims under Peruvian law either did not (on the Claimants' case) or did (on that of the Defendants) involve the introduction of material facts other than the factual pleading of Peruvian law. In the light of my conclusions about the need to plead and prove Peruvian law and the scope of interruption effected by a demanda, I am not going to lengthen this judgment further by reference to those analyses. If necessary that exercise could be done at a later date and by a separate judgment.
Issue 2: did the interruption of the period of prescription by the Claim Form and/or the original Particulars of Claim have the effect that any or all of the claims under Peruvian law that were subsequently advanced by amendment were brought within the time permitted by the Peruvian law of limitation?
- In the light of the discussion above, the answer is straightforward: none of the claims under Peruvian law were brought within the time permitted by the Peruvian law of limitation.
Issue 3: what is the significance of CPR 17.4?
- The Claimants rely upon the decision of the Court of Appeal in PJSC Tatneft v Bogolyubov [2017] EWCA Civ 1581. In an obiter passage between [67]-[84] the Court of Appeal found that CPR 17.4(1)(b)(iii) applies to Rome II cases so as to permit the English Court to allow an amendment to introduce a new claim where a foreign limitation period applicable pursuant to Article 15(h) of Rome II had expired. Relying upon that passage, the Claimants submitted in their written closing submissions that "the effect of every such amendment is – by operation of s. 35(1)(b) of the Limitation Act 1980 – that all the claims in Peruvian law, whensoever made pursuant to an amendment to the Particulars of Claim were brought on the same date as the original claim:…."
- In the face of clear and powerful submissions from the Defendants, the Claimants abandoned any reliance on s. 35 of the Limitation Act 1980 in support of their arguments pursuant to CPR 17.4. They were, in my judgment, right to do so. It is now common ground that s. 35 of the Limitation Act 1980 has no application to the facts of the present case, either via a route predicated on CPR 17.4 or otherwise.
- There is nothing in the terms of CPR 17.4 or the Foreign Limitation Periods Act 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. It is therefore not necessary to deal with other submissions advanced by the Defendants in opposition to this submission, not least that the Claimants' amendments in the present case were not in any event made pursuant to an order of the Court under CPR 17.4(1)(b)(iii) but were introduced by agreement pursuant to CPR 17.1(2)(A) so that (it is submitted) the Claimants' submission proceeds on a false basis from the outset.
- I find that reference to CPR 17.4 is of no practical relevance in the circumstances of this case. Specifically, reference to CPR 17.4 does not open a route to relating back the amended claims to an earlier date.
Issue 4: if some or all of the claims under Peruvian law were brought after the limitation period applicable to those claims had expired and would otherwise be barred by limitation, are the Defendants prevented from relying on limitation by waiver?
- The parties are agreed that Article 1991 applies and that its application must take into account the procedural context, which is that the Claimants brought the claims in England. Therefore English procedure is relevant when considering the question of tacit waiver.
- For convenience, I set out Article 1991 of the Civil Code again:
Waiver of prescription that has already occurred
Article 1991 – A prescription that has already occurred can be expressly or tacitly waived.
It is understood to be tacitly waived when it results from the execution of an act that is incompatible with the will to take advantage of prescription.
- Article 141 of the Civil Code provides the further guidance that a manifestation of will is implied "when the will can without doubt be inferred from an attitude or circumstances of behaviour that reveal its existence" and that "tacit manifestation cannot be said to exist when the law requires an explicit statement …": see [34] above. It is also clear from the evidence of the experts and cited doctrine that, for an act to give rise to tacit waiver, it must be "unequivocal, in the sense of being incompatible with any other will."
- If these claims had been brought in Peru and subject to Peruvian procedure, there would have been an overwhelming inference of tacit waiver of limitation because of the very short time allowed for raising extinctive limitation as an exception, and the doctrine of preclusion: see [28] and [32] above. However, the English procedural context does not impose set time limits for raising a defence of extinctive prescription and knows no doctrine of preclusion akin to that which applies in Peru. I therefore accept, with one gloss, the Claimants' submission that "the Court must … look to see whether the Defendant(s) executed one or more acts that were incompatible with the will to take advantage of limitation." The gloss is that the Court is not simply looking to see whether the Defendants' acts were incompatible with a present intention to take advantage of limitation: what is required is that their acts were incompatible with the will to take advantage of limitation at any stage in the proceedings.
- The acts on which the Claimants rely as being incompatible with the will to take advantage of limitation are that the Defendants:
i) Consented to the amendments that are in issue rather than contesting their admission on the basis of limitation;
ii) Engaged in several contested hearings in relation to disclosure, at a cost of millions of pounds;
iii) Attended a mediation;
iv) Agreed directions to trial;
v) Exchanged factual and expert evidence on all substantive issues.
- The CPR and the practice of the English Court in applying it form part of the context to be taken into account. The CPR is a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. The context therefore includes (a) the obligation of the court to give effect to the overriding objective: CPR 1.2; and (b) the obligation of the parties to help the Court to further it: CPR 1.3. It also includes the power of the Court to make orders of costs to compensate for what would otherwise be unjust results.
- I set out a summary of the principles that the English Court will apply when faced with a contested application to amend in the Limitation Amendment Judgment at [22] ff. Those principles reflect and are applied in the context of CPR 17(1)(2)(b) and 17.3, the terms of which permit a party to apply to the Court for permission to amend an existing statement of case to raise a new defence, including a defence of limitation, without limitation of the time within which such an application may be made. This is the very opposite of the Peruvian law doctrine of preclusion: whether or not a party to English proceedings will be allowed to amend depends upon the application of the overriding objective, as explained in the Limitation Amendment Judgment. That being so, (a) the fact that, under the CPR, an amendment to plead limitation may be brought forward at any particular time does not mean that a party cannot waive the right to do so; but (b) silence and delay in bringing forward a limitation defence can seldom be interpreted as being incompatible with leaving open the possibility of taking the defence (if allowed to do so) at a later stage.
- There have been cases in which delay in bringing forward a limitation defence has entitled the Claimants to assume that the Defendant does not wish to rely upon it. In Ketteman & Ors v Hansel Properties and Ors [1987] AC 189, 219 Lord Griffiths said:
"A defence of limitation permits a defendant to raise a procedural bar which prevents the plaintiff from pursuing the action against him. It has nothing to do with the merits of the claim which may all lie with the plaintiff; but as a matter of public policy Parliament has provided that a defendant should have the opportunity to avoid meeting a stale claim. The choice lies with the defendant and if he wishes to avail himself of the statutory defence it must be pleaded. A defendant does not invariably wish to rely on a defence of limitation and may prefer to contest the issue on the merits. If, therefore, no plea of limitation is raised in the defence the plaintiff is entitled to assume that the defendant does not wish to rely upon a time bar but prefers the court to adjudicate on the issues raised in the dispute between the parties. If both parties on this assumption prepare their cases to contest the factual and legal issues arising in the dispute and they are litigated to the point of judgment, the issues will by this time have been fully investigated and a plea of limitation no longer serves its purpose as a procedural bar.
If a defendant decides not to plead a limitation defence and to fight the case on the merits he should not be permitted to fall back upon a plea of limitation as a second line of defence at the end of the trial when it is apparent that he is likely to lose on the merits. Equally, in my view, if a defence of limitation is not pleaded because the defendant's lawyers have overlooked the defence the defendant should ordinarily expect to bear the consequences of that carelessness and look to his lawyers for compensation if he is so minded." (Emphasis added)
- Two points immediately arise. First, Ketteman was an extreme case on the facts: the plea of limitation was not raised until closing submissions at the end of a trial which had, by then, fully investigated the merits of the claims. Second, taken on its own, the statement that if a Defendant does not plead limitation in his defence the Claimant is entitled to assume that the Defendant "does not wish to rely upon a time bar but prefers the court to adjudicate on the issues raised in the dispute between the parties" is not now to be taken as a rule of law or practice (if ever it was) in the light of the provisions of the CPR and the more recent statements of authority summarised in the Limitation Amendment Judgment and elsewhere. In particular, the passage in Ketteman does not preclude investigation and argument in the present case about whether, as a matter of fact, the Defendants have acted incompatibly with the will to take a limitation point at any stage in the proceedings.
- The Claimants did not argue at that hearing of the Defendants' application to amend to plead limitation that the Defendants had previously represented that they would not take a limitation point in the future; nor is that argument raised now. The test to be applied here is a different one: it is the test of objective incompatibility stated above.
- Viewed objectively, and applying the principles and the procedural context to which I have referred, I do not consider that the test is satisfied. Taken at face value, the Claimants have maximised the complexity of the procedure by initially bringing and serving claims in English law in 2013, then bringing forward three separate iterations of claims under Peruvian law in April 2015, November 2016 and April 2017. A partial response is that some of the amendments had been made as a result of matters revealed in disclosure, though that does not explain why no claims under Peruvian law were brought at the outset, at least against the Peruvian Second Defendant; nor does it explain why no Peruvian law claims were brought forward (even in the alternative to English law claims) before May 2014 in the light of the assertion in the original Defence in December 2013 that Peruvian law and not English law was the applicable law in respect of any alleged liability of the First Defendant.
- On the other side, the Defendants did nothing between April 2015 and April 2017 that, viewed objectively, explained to the Claimants, either expressly or by necessary implication, why limitation was not being taken as a defence to the Peruvian law claims once they were introduced. There was merely silence and inactivity on the limitation front, while other steps were taken on both sides, which involved substantial expenditure and were consistent with the eventual outcome being a trial on the merits.
- The Claimants rely on the taking of those steps as the foundation for their submission of tacit waiver; but, as events have shown, there was nothing done that, in the context of English procedure and practice, was incompatible with a late attempt to plead limitation which would be capable of being allowed. As is obvious from the Limitation Amendment Judgment and the facts of other decided cases (of which Ketteman is an extreme but clear example), had the facts surrounding the application to plead limitation been different, the application could and would have failed: but it did not. The Limitation Application Judgment itself therefore stands as an example of when the Court may allow an amendment to plead limitation even after long and unexplained delay and silence. For the avoidance of doubt, I do not exclude the possibility that the delay in bringing forward the plea of limitation might have involved a breach of the Defendants' obligation to help the Court further the overriding objective. That, however, is a different question. Although I take it into account as part of the overall context, it does not determine the answer to the question that must be asked in respect of tacit waiver.
Conclusions
- In summary I conclude and find that:
i) The period of prescription for claims such as those of the Claimants in these proceedings cannot be interrupted under Peruvian law by service of notice pursuant to Article 1996(2);
ii) Service of a demanda (whether original or as amended) is effective to interrupt the period of prescription in respect of those claims that fall within the ambit of the petitorio and the causa petendi, which define and circumscribe the scope of the proceedings and the extent of what a Judge may find;
iii) Article VII is applicable only in respect of domestic law. Foreign law must be pleaded and proved as facts;
iv) If and to the extent that the petitorio and causa petendi do not disclose facts that are capable of sustaining a claim, the service of the demanda is not effective to interrupt the period of prescription in relation to that unsustainable claim;
v) For the avoidance of doubt, the need to plead facts that are capable of sustaining a claim includes the need the plead matters of foreign law if (a) a claim under foreign law is to be pursued and/or (b) if the period of prescription in relation to a claim under foreign law is to be interrupted by service of the demanda;
vi) Service of the Claim Form and the original Particulars of Claim did not interrupt the period of prescription for any claims under Peruvian law, including those subsequently added by amendment;
vii) None of the claims under Peruvian law in these proceedings were brought within the time permitted by the Peruvian law of limitation;
viii) There is no applicable doctrine of relating back applicable to the late bringing of the claims under Peruvian law;
ix) There has been no tacit waiver of the limitation defence now advanced by the Defendants;
x) In the result, the Claimants' claims under Peruvian law are barred by extinctive prescription.
