QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Daniel Alfredo Condori Vilca & Ors
|- and -
|(1) Xstrata Limited
(2) Compania Minera Antapaccay S.A. (Formerly Xstrata Tintaya S.A.)
Shaheed Fatima QC, Hanif Mussa, Isabel Buchanan (instructed by Linklaters LLP) for the Defendants
Hearing dates: 30th October – 10th November 2017
Crown Copyright ©
Mr Justice Stuart-Smith:
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?
The Experts in Peruvian Law
The Sources of Peruvian law
"…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."
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.
The Relevant Provisions of Peruvian Law
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 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, … ."
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 ;
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.
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
"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…;"
Article VII of the Procedural Code
"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 Peruvian Court's Procedure for Service of Claims and Subsequent Process
"Inadmissibility of the claim
The judge will declare the claim 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."
"A valid summons with the claim produces the following effects:
1. The initial jurisdiction cannot be modified, although the circumstances that determined it may vary.
2. The petition 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.
4. It interrupts the limitation period."
"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)
"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.
"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."
The defendant can only raise the following exceptions:
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"
"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."
The Relevant Factual Background
The original Claim Form
"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."
The original Particulars of Claim
"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.
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.
Summary of the Parties' Positions on Limitation
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  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.
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.
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) 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.
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?
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.
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).
"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.
What are the requirements for notice pursuant to Article 1996(2)?
What are the requirements of notice pursuant to Article 1996(3)?
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.
"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 scope of interruption by service of a demanda
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 . 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.
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 - 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.
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?
Issue 3: what is the significance of CPR 17.4?
"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]
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?
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.
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.
"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)
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.