HARLEY V SMITH

[2010] EWCA Civ 78, Court of Appeal, Sir Mark Potter P, Lord Justice Rimer and Sir John Chadwick, 17 February 2010

Limitation of actions - Tort committed in Saudi Arabia - Claim brought in England within the English limitation period - Whether claim time barred under Saudi law - Whether Saudi limitation period should be disapplied - Foreign Limitation Periods Act 1984, section 2

The three claimants were divers employed by a Saudi company ADAMS. They alleged that on 7 May 2003 they sustained injuries while being required to work in water into which toxic chemicals had been discharged from a client's vessel. Proceedings were commenced in England against the defendant, their diving instructor, on 5 May 2006, just inside the three-year limitation period for personal injury claims under the Limitation Act 1980. The defendant asserted that the law appliable to the tort was Saudi law, and the limitation period under Saudi law had expired. The Court of Appeal upheld the trial judge's conclusion that the claim would not have been time-barred had it been brought in Saudi Arabia, although the Court of Appeal further held that the judge had erred in holding that, if there had been a 12-month limitation period under Saudi law that that period would have been disapplied under section 2 of the Foreign Limitation Periods Act 1984 on the ground of undue hardship: section 2 did not operate merely because a claimant did not appreciate the legal position, or the position was uncertain, under the applicable law.