Overseas Operations (Service Personnel and Veterans) Bill (HL Bill 189)

continued    Part 2 continued    

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

(6)5In the application of subsection (2) to an action in respect of which a
limitation period specified in the relevant foreign limitation law has
been suspended in accordance with section 1(1) of the Limitation
(Enemies and War Prisoners) Act 1945, the reference to the period of
six years is to be treated as a reference to the period of six years
10plus—

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

(b)any extra period after the suspension ended during which the
action could have been brought only because of an extension
15provided for by section 1(1) of that Act.”

(4)In section 7 (short title etc), after subsection (3) insert—

“(3A)Section 1ZA (overseas armed forces actions: restriction of foreign
limitation law) applies to an action commenced in England and
Wales on or after the date on which that section comes into force,
20whenever the events to which the action relates took place.”

(5)In section 8 (disapplication of provisions where the law applicable to
limitation is determined by other instruments), in the heading and in
subsection (1), after “1,” insert “1ZA,”.

Section 10

Schedule 3 25Limitation periods: Scotland

Part 1 Court’s power to override time-limits

1(1)The 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),
30after “that provision” insert “(but see section 19AA)”.

(3)After section 19A, insert—

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

(1)This section applies where the court is considering whether to
35exercise 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)in 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
particular reference to—

(i)5the 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)the extent of dependence on the memories of
10members 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)the likely impact of the action on the mental health of any
15witness 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
context of overseas operations, and include references to the
20exceptional 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
section 17 must be brought within the period of 6 years beginning
25with the section 17 relevant date.

(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)30The 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)35In 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
40to 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
45a 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
50(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)5any 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)10is 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)15In 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
20limitation 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
25subsection (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
  Forces Act 2006 (see section 374 of that Act);

• 30“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
  forces come under attack or face the threat of attack or violent
  35resistance;

• “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;

• “the section 18 relevant date” means the date from which the
  40period 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
United Kingdom and the territorial sea adjacent to any of the
45Channel 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
50which the action relates.”

Part 2 Restriction of foreign limitation law

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

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

(a)5in 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 Overseas armed forces actions: restriction of foreign prescription and
10limitation 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
which an action may be brought to enforce an obligation is to
15be 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,

and in this section the law mentioned in paragraph (a) that is to be
20applied in that action is referred to as “the relevant foreign limitation
law”.

(2)The commencement condition applies in relation to an overseas
armed 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)25the 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
the action may be commenced within an indefinite period,
the first date on which the action could have been
30commenced,

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

(3)The relevant foreign limitation law is to be treated as providing the
defender with a complete defence to the action so far as relating to
35the obligation (where that would not otherwise be the case).

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

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

(b)40which (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
death).

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

(a)45in 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
capacity 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
5a disability has been disregarded in computing a limitation
period specified in that law,

the 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 11

10Schedule 4 Limitation periods: Northern Ireland

Part 1 Court’s discretion to disapply time limits

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

(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
20action was brought after the expiration of the period of six years from
the 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
25Defence, or any member of Her Majesty’s forces,

(b)is 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)30in the case of an overseas armed forces action for which a
period 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
35the 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 paragraph (1B)(c) to be
treated as occurring where the injuries were sustained).”

(3)40After paragraph (3) insert—

“(3A)But 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
purpose, the reference to Article 7(5) in paragraph (a) of the
definition of that term).

(3B)5The 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
9 relevant date (see paragraph (8)).”

(4)After paragraph (6) insert—

“(6A)10In acting under this Article in relation to an overseas armed forces
action—

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

(i)the likely impact of the operational context on the
15ability of members of Her Majesty’s forces to
remember relevant events or actions fully or
accurately, and

(ii)the extent of dependence on the memories of
members of Her Majesty’s forces, taking into account
20the effect of the operational context on their ability to
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
25witness 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
30Majesty’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
35(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)40any 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—

• 45“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);

  Overseas Operations (Service Personnel and Veterans) BillPage 26

  (b)

  where Article 48 applies, the date from which the
  period 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)
  5starts to run;

  (c)

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

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

  (a)

  10the 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
  period of three years mentioned in paragraph (1) of
  that Article (as that paragraph has effect with the
  15modification made by paragraph (5) of that Article)
  starts to run;

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

• “the court” means the court in which the action has been
  20brought;

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

• “overseas operations” means any operations outside the British
  Islands, including peacekeeping operations and operations
  25for dealing with terrorism, civil unrest or serious public
  disorder, in the course of which members of Her Majesty’s
  forces come under attack or face the threat of attack or violent
  resistance.”

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

(b)30to the British Islands include the territorial sea adjacent to the
United 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
35overseas armed forces action, include an individual who was
a member of Her Majesty’s forces at the time of the events to
which the action relates;

(c)”.

Part 2 40Restriction of foreign limitation law

2(1)The Foreign Limitation Periods (Northern Ireland) Order 1985 (S.I. 1985/754
(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)45After Article 3 insert—

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

(1)Paragraph (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
5action,

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
10armed 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
15the 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
20the matter (where that would not otherwise be the case).

(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
25taken 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
30Ireland) 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
35capacity 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,

40the 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
45been 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)any 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)5Article 3A (overseas armed forces actions: restriction of foreign
limitation 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
10limitation is determined by other instruments), in paragraph (1), after
“Articles 3” insert “, 3A”.