Roberts v Gill and Co and Another: CA 15 Jul 2008

The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid out of the estate which had defeated the inheritance rights of the claimant. A new claim would now be out of time.
Held: The appeal was dismissed. There was no objection on the basis that the claimant in a derivative claim was publicly funded. The claimant had to be assumed to have known of the defect in his action and of the need to have acted earlier. The matter was in any event covered by CPR 19.5.
If Mark Roberts’ application to amend so as to plead a derivative claim were allowed, the administrator had to be joined as a party. Since the limitation period had expired, joinder of the administrator could only be permitted if the addition were ‘necessary’ (CPR 19.5(2)(b)) to enable the existing action to be pursued. The addition of the administrator was not necessary for the existing, personal, claim to be properly carried on, and permission to amend to plead the derivative claim only (without joining the administrator) was refused since that amendment would not enable the claimant to proceed to judgment on the derivative claim because the relevant parties had not been and could not be joined.


Lord Justice Pill, Lady Justice Arden and Mr Justice Patten


[2008] EWCA Civ 803, Times 18-Aug-2008, [2009] 1 WLR 531, [2008] WTLR 1429, [2009] PNLR 2, [2009] CP Rep 3




Limitation Act 1980, Civil Procedure Rules 19.5


England and Wales


Appeal fromRoberts v Gill and Co and Another ChD 2007
. .
CitedLancaster v Evors 1841
A creditor of the deceased’s estate could enforce a cause of action vested in an estate which the executors were not willing to enforce. . .
CitedYeatman v Yeatman 1877
An action was brought by a residuary legatee against her mother-in-law’s executors and another member of the family, who it was alleged, had failed to account for partnership monies to the mother-in-law.
Held: A beneficiary of a trust could . .
CitedMeldrum v Scorer 1887
The plaintiff, as a beneficiary under a will, sued the executors of the will and the trustees of a settlement made by him.
Held: The court directed that the other beneficiaries of the trust should be joined as defendants to avoid multiplicity . .
CitedIn re Field 1971
The plaintiff had an order for maintenance against the deceased’s estate. She brought proceedings in her own name against an insurance company which had wrongly paid a claim to the widow and not to the estate. The insurer sought a strike out. The . .
CitedPerforming Right Society Limited v London Theatre of Varieties Limited HL 1924
The parties, the plaintiff who was the equitable assignee of performing rights and the infringing defendant, joined specific issue on the absence of the legal owner of the rights.
Held: His absence was critical. PRS failed to obtain a . .
CitedVandepitte v Preferred Accident Insurance Corp. of New York PC 1933
The plaintiff was injured in a motor accident. He failed in a direct claim against the insurers of the negligent defendant driver. The insurance was effected by the father (Mr Berry) of the negligent driver and provided that an indemnity would be . .
CitedHarmer v Armstrong CA 1934
The court considered the position where the assignor of a contract was required to attend court as a party when the assignee sought to enforce the debt.
Held: A beneficiary under a bare trust could bring proceedings in his own name and, where . .
CitedBradstock Trustee Services Ltd v Nabarro Nathanson ChD 1995
The plaintiffs were trustees of an occupational pension scheme. It began professional negligence proceedings to recover an expected surplus paid to the employer by the solicitors whose advice had been acted on. The anticipated costs were . .
CitedHayim v Citibank NA PC 1987
(Hong Kong) The plaintiffs were the testator’s sons, who were beneficiaries under his American will. He also executed a Hong Kong will under which the residue of his property outside the United States was to be held on trust for sale on the trusts . .
CitedGiles v Rhind CA 17-Oct-2002
An action by a company under a shareholder’s agreement was compromised. The other shareholder now sought to commence an action against the party in breach for his personal losses. The defendant argued that the company’s compromise was binding also . .

Cited by:

Appeal fromRoberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation, Civil Procedure Rules

Updated: 17 July 2022; Ref: scu.270705