The plaintiff’s writ had not been served within the required time, and it had become too late to extend its validity. The plaintiff isued a second writ. The defendant argued limitation. Counsel for the plaintiffs sought to distinguish Walkley on the very narrow ground that there was no question of the first action having being struck out or discontinued.
Held: (Roskill LJ) ‘ . . I cannot accept the submission that [Walkley] is a decision only on the facts of that case. It seems to me plainly a decision on principle that if a plaintiff starts but then does not for any reason proceed with an action, whether it is because the plaintiff chooses not to serve or his solicitors fail to serve the writ timeously or because the action is subsequently struck out for want of prosecution, or because for good reason or bad the plaintiff or his solicitors give notice of discontinuance, it is not open to the plaintiff thereafter to seek to take advantage of the provisions of section [33] . . because as their Lordships have laid down (and we are of course bound by their decision) the cause of his prejudice is not the provisions of section [11], that is to say, the existence of the primary limitation period, but is the act or remission of himself or his solicitors in acting or failing to act as he or they have done in relation to their action.’
Roskill LJ, Ormrod LJ
[1980] 1 WLR 958, [1980] 2 All ER 463
England and Wales
Citing:
Discussed – Walkley v Precision Forgings Ltd HL 1979
The plaintiff tried to bring a second action in respect of an industrial injury claim outside the limitation period so as to overcome the likelihood that his first action, although timeous, would be dismissed for want of prosecution.
Held: He . .
Cited by:
Cited – Jacqueline Adam v Rasal Ali CA 21-Feb-2006
The defendant sought damages against the defendant for personal injury from his alleged negligence. Her action was struck out and she recommenced the action. The defendant pleaded that she was out of time. The claimant said that the first action . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Lists of cited by and citing cases may be incomplete.
Limitation, Negligence
Updated: 16 November 2021; Ref: scu.240165