The claimant had issued proceedings against the deceased after his death, but before a personal representative had been appointed. They later discontinued and re-issued against the person appointed by the court to defend the action. The defendant then said the proceedings were an abuse of process, and pleaded a limitation defence.
Held: The deceased was not a person in law, and the first action had no proper defendant, and the two actions were not the same. The person appointed to defend was not a personal representative at law. There was an identity between him and the deceased, but only to the extent of the requirement to provide a defendant, and the appointment did not relate back to the death. The case fell within Shapland, not Walkley, and the judge could apply section 33 to allow the action.
Judges:
Lord Justice Sedley, Lord Justice Simon Brown, Lady Justice Arden
Citations:
Times 19-Feb-2003, [2003] EWCA Civ 24, [2003] RTR 540
Links:
Statutes:
Limitation Act 1980 33, Civil Procedure Rules 19.8(2)(b)(ii)
Jurisdiction:
England and Wales
Citing:
Cited – 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 – Shapland v Palmer CA 23-Mar-1999
The plaintiff’s car was struck by a company car driven by the defendant in the course of her employment and she sought damages. Her action, against the employer, was struck out as late under the 1980 Act. She then commenced an action against the . .
Cited by:
Cited – Barry Young (Deceased) v Western Power Distribution (South West) Plc CA 18-Jul-2003
The deceased had begun an action on becoming ill after exposure to asbestos by the defendant. He withdrew his action after receiving expert evidence that his illness was unrelated. A post-mortem examination showed this evidence to be mistaken. His . .
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.
Civil Procedure Rules, Wills and Probate, Limitation
Updated: 06 June 2022; Ref: scu.178789