Overseas Operations (Service Personnel and Veterans) Bill (HC Bill 117)

Overseas Operations (Service Personnel and Veterans) BillPage 20

Section 9

SCHEDULE 3 Limitation periods: Scotland

Part 1 Court’s power to override time-limits

1 (1) 5The Prescription and Limitation (Scotland) Act 1973 is amended as follows.

(2) In section 19A (power of court to override time-limits etc), in subsection (1),
after “that provision” insert “(but see section 19AA)”.

(3) After section 19A, insert—

19AA Restriction of court’s power to override time-limits: overseas armed
10forces actions

(1) This section applies where the court is considering whether to
exercise its power under section 19A to override time-limits in
respect of an overseas armed forces action (see subsection (11)).

(2) The court must exercise its power—

(a) 15in accordance with subsection (3), and

(b) subject to the rules in subsections (5) to (7).

(3) The court must have particular regard to—

(a) the effect of the delay in bringing the action on the cogency of
evidence adduced or likely to be adduced by the parties, with
20particular reference to—

(i) the likely impact of the operational context on the
ability of members of Her Majesty’s forces to
remember relevant events or actions fully or
accurately, and

(ii) 25the extent of dependence on the memories of
members of Her Majesty’s forces, taking into account
the effect of the operational context on their ability to
record, or to retain records of, relevant events or
actions; and

(b) 30the likely impact of the action on the mental health of any
witness or potential witness who is a member of Her
Majesty’s forces.

(4) In subsection (3)(a) references to “the operational context” are to the
fact that the events to which the action relates took place in the
35context of overseas operations, and include references to the
exceptional demands and stresses to which members of Her
Majesty’s forces are subject.

(5) The first rule referred to in subsection (2)(b) is that an overseas
armed forces action for which a limitation period is specified in
40section 17 must be brought within the period of 6 years beginning
with the section 17 relevant date.

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(6) The second rule referred to in subsection (2)(b) is that an overseas
armed forces action for which a limitation period is specified in
section 18(2) must be brought within the period of 6 years beginning
with the section 18 relevant date.

(7) 5The third rule referred to in subsection (2)(b) is that, in respect of an
overseas armed forces action to which section 18 applies, the court
may exercise its power to override section 18(4) only if the injured
person in question died within the period of 6 years beginning with
the section 17 relevant date.

(8) 10In the application of the rule in subsection (5) or (7) to an action in
respect of which (in accordance with section 17(3)) any time has been
disregarded when computing the limitation period specified in
section 17(2) for the purposes of section 17 or 18(4) (as the case may
be), the reference to the period of 6 years is to be treated as a reference
15to the period of 6 years plus the period that was so disregarded.

(9) In the application of the rule in subsection (6) to an action in respect
of which (in accordance with section 18(3)) any time has been
disregarded when computing the limitation period specified in
section 18(2), the reference to the period of 6 years is to be treated as
20a reference to the period of 6 years plus the period that was so
disregarded.

(10) In the application of the rule in subsection (5) or (7) to an overseas
armed forces action in respect of which a limitation period has been
suspended in accordance with section 1(1) of the Limitation
25(Enemies and War Prisoners) Act 1945 (as modified by section 4 of
that Act), any reference to the period of 6 years is to be treated as a
reference to the period of 6 years plus—

(a) the period during which the limitation period was
suspended, and

(b) 30any extra period after the suspension ended during which the
action could have been brought only because of an extension
provided for by section 1(1) of that Act.

(11) In this section, an “overseas armed forces action” means an action
which, or an action which includes a claim which—

(a) 35is against the Ministry of Defence, the Secretary of State for
Defence, or any member of Her Majesty’s forces,

(b) is brought in connection with overseas operations (see
subsection (13)), and

(c) relates to damage that occurred outside the British Islands.

(12) 40In subsection (11), “damage” means—

(a) in the case of an overseas armed forces action for which a
limitation period is specified in section 17, the personal
injuries to which the action relates;

(b) in the case of an overseas armed forces action for which a
45limitation period is specified in section 18(2), the death to
which the action relates (and where a person sustains
personal injuries outside the British Islands which are a
substantial cause of their later death in any of the British
Islands, or vice versa, the death is for the purposes of

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subsection (11)(c) to be treated as occurring where the
injuries were sustained).

(13) In this section—

  • “Her Majesty’s forces” has the same meaning as in the Armed
    5Forces Act 2006 (see section 374 of that Act);

  • “overseas operations” means any operations outside the British
    Islands, including peacekeeping operations and operations
    for dealing with terrorism, civil unrest or serious public
    disorder, in the course of which members of Her Majesty’s
    10forces come under attack or face the threat of attack or violent
    resistance;

  • “the section 17 relevant date” means the date from which the
    period of 3 years starts to run in accordance with subsection
    (2) of section 17;

  • 15“the section 18 relevant date” means the date from which the
    period of 3 years starts to run in accordance with subsection
    (2) of section 18.

(14) In this section, references—

(a) to the British Islands include the territorial sea adjacent to the
20United Kingdom and the territorial sea adjacent to any of the
Channel Islands or the Isle of Man (and the reference to any
of the British Islands is to be read accordingly);

(b) to a member of Her Majesty’s forces, in relation to an
overseas armed forces action, include an individual who was
25a member of Her Majesty’s forces at the time of the events to
which the action relates.”

Part 2 Restriction of foreign limitation law

2 (1) The Prescription and Limitation (Scotland) Act 1973 is amended as follows.

(2) 30In section 23A (private international law application)—

(a) in subsection (1), after “to enforce the obligation” insert “, subject to
section 23B,”, and

(b) in subsection (4), after “This section” insert “and section 23B”.

(3) After section 23A, insert—

23B 35Overseas armed forces actions: restriction of foreign prescription and
limitation law

(1) Subsection (3) applies where—

(a) the law of a country other than Scotland relating to the
extinction of an obligation or the limitation of time within
40which an action may be brought to enforce an obligation is to
be applied by virtue of section 23A(1) in an overseas armed
forces personal injuries action, and

(b) the commencement condition applies in relation to that
action,

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and in this section the law mentioned in paragraph (a) that is to be
applied in that action is referred to as “the relevant foreign limitation
law”.

(2) The commencement condition applies in relation to an overseas
5armed forces personal injuries action if the action commenced on a
date which is after the end of the period of 6 years beginning with—

(a) the date on which any limitation period specified in the
relevant foreign limitation law began to run, or

(b) where the relevant foreign limitation law has the effect that
10the action may be commenced within an indefinite period,
the first date on which the action could have been
commenced,

and in this section “limitation period” includes a prescriptive period
(however expressed in the relevant foreign limitation law).

(3) 15The relevant foreign limitation law is to be treated as providing the
defender with a complete defence to the action so far as relating to
the obligation (where that would not otherwise be the case).

(4) An “overseas armed forces personal injuries action” means an
action—

(a) 20which is an overseas armed forces action as defined in section
19AA(11), and

(b) which (under the substantive law of the other country that
falls to be applied) corresponds to an action to which section
17 or 18 applies (actions in respect of personal injuries or
25death).

(5) In the application of subsection (2) to an action in respect of which—

(a) in accordance with the relevant foreign limitation law, a
limitation period specified in that law has been suspended or
interrupted for a period by reason of a person’s lacking legal
30capacity or being under a disability, or

(b) in accordance with the relevant foreign limitation law, a
period during which a person lacks legal capacity or is under
a disability has been disregarded in computing a limitation
period specified in that law,

35the reference to the period of 6 years is to be treated as a reference to
the period of 6 years plus the period of suspension or interruption or
(as the case may be) the period that was so disregarded.”

Section 10

SCHEDULE 4 Limitation periods: Northern Ireland

40Part 1 Court’s discretion to disapply time limits

1 (1) Article 50 of the Limitation (Northern Ireland) Order 1989 (S.I. 1989/1339S.I. 1989/1339
(N.I. 11)) (court’s power to override certain time limits) is amended as
follows.

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(2) After paragraph (1), insert—

(1A) The court must not under this Article disapply any provision of
Article 7 in its application to an overseas armed forces action if the
action was brought after the expiration of the period of six years from
5the Article 7 relevant date (see paragraph (8)).

(1B) An “overseas armed forces action” means an action, or cause of
action, which—

(a) is against the Ministry of Defence, the Secretary of State for
Defence, or any member of Her Majesty’s forces,

(b) 10is brought in connection with overseas operations (see
paragraph (8)), and

(c) relates to damage that occurred outside the British Islands.

(1C) In paragraph (1B), “damage” means—

(a) in the case of an overseas armed forces action for which a
15period of limitation is fixed by Article 7, the personal injuries
to which the action relates;

(b) in the case of an overseas armed forces action for which a
period of limitation is fixed by Article 9(3), the death to which
the action relates (and where a person sustains personal
20injuries outside the British Islands which are a substantial
cause of their later death in any of the British Islands, or vice
versa, the death is for the purposes of paragraph (1B)(c) to be
treated as occurring where the injuries were sustained).”

(3) After paragraph (3) insert—

(3A) 25But where the reason why the person injured could no longer
maintain an action was because of the time limit in Article 7, the
court may disapply Article 9(2) in its application to an overseas
armed forces action only if the person died within the period of six
years beginning with the Article 7 relevant date (ignoring, for this
30purpose, the reference to Article 7(5) in paragraph (a) of the
definition of that term).

(3B) The court must not under this Article disapply Article 9(3) in its
application to an overseas armed forces action if the action was
brought after the expiration of the period of six years from the Article
359 relevant date (see paragraph (8)).”

(4) After paragraph (6) insert—

(6A) In acting under this Article in relation to an overseas armed forces
action—

(a) when considering the factor mentioned in paragraph (4)(b),
40the court must have particular regard to—

(i) the likely impact of the operational context on the
ability of members of Her Majesty’s forces to
remember relevant events or actions fully or
accurately, and

(ii) 45the extent of dependence on the memories of
members of Her Majesty’s forces, taking into account
the effect of the operational context on their ability to

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record, or to retain records of, relevant events or
actions; and

(b) the court must also have particular regard to the likely impact
of the action on the mental health of any witness or potential
5witness who is a member of Her Majesty’s forces.

(6B) In paragraph (6A) references to “the operational context” are to the
fact that the events to which the action relates took place in the
context of overseas operations, and include references to the
exceptional demands and stresses to which members of Her
10Majesty’s forces are subject.”

(5) After paragraph (7) insert—

(7A) In the application of paragraph (1A), (3A) or (3B) to an overseas
armed forces action in respect of which a limitation period has been
suspended in accordance with section 1(1) of the Limitation
15(Enemies and War Prisoners) Act 1945, any reference to the period of
six years is to be treated as a reference to the period of six years
plus—

(a) the period during which the limitation period was
suspended, and

(b) 20any extra period after the suspension ended during which the
action could have been brought only because of an extension
provided for by section 1(1) of that Act.”

(6) For paragraph (8) substitute—

(8) In this Article—

  • 25“the Article 7 relevant date” means the latest of the following—

    (a)

    the date from which the period of three years starts to
    run in accordance with Article 7(4) or (5);

    (b)

    where Article 48 applies, the date from which the
    period of three years mentioned in paragraph (1) of
    30that Article (as that paragraph has effect with the
    modification made by paragraph (5) of that Article)
    starts to run;

    (c)

    where Article 71(1)(a) or (b) applies, the date from
    which the period of three years starts to run in
    35accordance with paragraph (1) of that Article;

  • “the Article 9 relevant date” means the latest of the following—

    (a)

    the date from which the period of three years starts to
    run in accordance with Article 9(3);

    (b)

    where Article 48 applies, the date from which the
    40period of three years mentioned in paragraph (1) of
    that Article (as that paragraph has effect with the
    modification made by paragraph (5) of that Article)
    starts to run;

  • “the British Islands” means the United Kingdom, the Channel
    45Islands and the Isle of Man;

  • “the court” means the court in which the action has been
    brought;

  • “Her Majesty’s forces” has the same meaning as in the Armed
    Forces Act 2006 (see section 374 of that Act);

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  • “overseas operations” means any operations outside the British
    Islands, including peacekeeping operations and operations
    for dealing with terrorism, civil unrest or serious public
    disorder, in the course of which members of Her Majesty’s
    5forces come under attack or face the threat of attack or violent
    resistance.”

(7) In paragraph (9), after “this Article” insert

(8)(a)to the British Islands include the territorial sea adjacent to the
United Kingdom and the territorial sea adjacent to any of the
10Channel Islands or the Isle of Man (and the reference to any
of the British Islands is to be read accordingly);

(b) to a member of Her Majesty’s forces, in relation to an
overseas armed forces action, include an individual who was
a member of Her Majesty’s forces at the time of the events to
15which the action relates;

(c) ”.

Part 2 Restriction of foreign limitation law

2 (1) The Foreign Limitation Periods (Northern Ireland) Order 1985 (S.I. 1985/754S.I. 1985/754
20(N.I. 5)) is amended as follows.

(2) In Article 3 (application of foreign limitation law), in paragraph (1)(a), after
“proceedings” insert “, subject to Article 3A”.

(3) After Article 3 insert—

3A Overseas armed forces actions: restriction of foreign limitation law

(1) 25Paragraph (3) applies where—

(a) the law of another country relating to limitation applies by
reason of Article 3(1)(a) in respect of a matter for the purposes
of an overseas armed forces tort action, and

(b) the commencement condition applies in relation to that
30action,

and in this Article the law relating to limitation that applies for the
purposes of that action is referred to as “the relevant foreign
limitation law”.

(2) The commencement condition applies in relation to an overseas
35armed forces tort action if the action commenced on a date which is
after the end of the period of 6 years beginning with—

(a) the date on which any limitation period specified in the
relevant foreign limitation law began to run, or

(b) where the relevant foreign limitation law has the effect that
40the action may be commenced within an indefinite period,
the first date on which the action could have been
commenced.

(3) The relevant foreign limitation law is to be treated as providing the
defendant with a complete defence to the action so far as relating to
45the matter (where that would not otherwise be the case).

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(4) An “overseas armed forces tort action” means an action—

(a) which is an overseas armed forces action as defined in Article
50(1B) of the Limitation (Northern Ireland) Order 1989, and

(b) which (under the law of the other country that falls to be
5taken into account) corresponds to—

(i) an action to which Article 7 of that Order applies
(personal injuries),

(ii) an action in respect of false imprisonment, or

(iii) an action under the Fatal Accidents (Northern
10Ireland) Order 1977 (death).

(5) In the application of paragraph (2) to an action in respect of which—

(a) in accordance with the relevant foreign limitation law, a
limitation period specified in that law has been suspended or
interrupted for a period by reason of a person’s lacking legal
15capacity or being under a disability, or

(b) in accordance with the relevant foreign limitation law, a
period during which a person lacks legal capacity or is under
a disability has been disregarded in computing a limitation
period specified in that law,

20the reference to the period of 6 years is to be treated as a reference to
the period of 6 years plus the period of suspension or interruption or
(as the case may be) the period that was so disregarded.

(6) In the application of paragraph (2) to an action in respect of which a
limitation period specified in the relevant foreign limitation law has
25been suspended in accordance with section 1(1) of the Limitation
(Enemies and War Prisoners) Act 1945, the reference to the period of
6 years is to be treated as a reference to the period of 6 years plus—

(a) the period during which the limitation period was
suspended, and

(b) 30any extra period after the suspension ended during which the
action could have been brought only because of an extension
provided for by section 1(1) of that Act.”

(4) In Article 8 (transitional provisions), after paragraph (2) insert—

(3) Article 3A (overseas armed forces actions: restriction of foreign
35limitation law) applies to an action commenced in Northern Ireland
on or after the date on which that Article comes into force, whenever
the events to which the action relates took place.”

(5) In Article 9 (disapplication of provisions where the law applicable to
limitation is determined by other instruments), in paragraph (1), after
40“Articles 3” insert “, 3A”.