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 transferred only if the claimant’s brother paid all the Inheritance Tax. It was transferred without that tax having been paid. The events were now several years outside the limitation period. The claim was framed as a duty by the solicitors to the claimant personally.
Held: The claimant’s appeal was dismissed. The claimant had to succeed not only in applying to alter his claim to make it on behalf of the estate, but also to add the administrator, his brother to the claim. If he had to do the latter, could he do so after commencing the action, and outside the limitation period. The claimant did not show either that he need not add the brother, nor that he could do so after commencing the claim.
A party could be added after the commencement of an action only where this was necessary in order to determine the original litigation, and the action against the brother was not such.
Here the proposed addition of a party and amendments were for a new action. That new action would be out of time.
Lord Clarke and Lord Hope dissented in part in allowing that the brother could have been added as a party after the action had been commenced to avoid injustice, but there were no such special circumstances in this case.
Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lord Collins, Lord Clarke
[2010] WLR (D) 130, [2010] UKSC 22, [2010] PNLR 30, [2010] WTLR 1223, [2010] 2 WLR 1227, [2011] AC 240
WLRD, Bailii, SC, SC Summ, Bailii Summary
Limitation Act 1980 35, Civil Procedure Rules 19.5
England and Wales
Citing:
Cited – Weldon v Neal CA 1887
An amendment to pleadings should not be allowed so as to allow a plaintiff to set up a cause of action which would otherwise be barred by the Statutes of Limitation. . .
Appeal from – 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 . .
Cited – Spokes v Grosvenor and West End Railway Terminus Hotel Co Ltd CA 1897
The court discussed the joinder of the company in a derivative action. A L Smith LJ said: ‘That in the circumstances of this case the company are necessary parties to the suit I do not doubt, for without the company being made a party to the action . .
Cited – Yorkshire Regional Health Authority v Fairclough Building Ltd and Another CA 16-Nov-1995
The substitution of a successor party to a claim does not constitute a new claim for limitation purposes. Millett LJ considered the objects of the 1980 Act: ‘The 1980 Act was enacted in order to implement the recommendations of the Twenty-First . .
Cited – Performing 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 . .
Cited – Mabro v Eagle, Star and British Dominions Insurance Co Ltd CA 1932
Scrutton LJ said: ‘In my experience the Court has always refused to allow a party or a cause of action to be added where, if it were allowed, the defence of the Statute of Limitations would be defeated. The Court has never treated it as just to . .
Cited – Haq v Singh and Another CA 25-May-2001
The claimant had been made bankrupt, and when she sued the defendant, was challenged as to her standing. She obtained an assignment of the right of action from her trustee in bankruptcy. She then sought to amend her pleadings under the rule. It was . .
Cited – Harmer 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 . .
Cited – Royal Brunei Airlines SDN BHD v Tan PC 24-May-1995
(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective . .
Cited – Hayim 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 . .
Cited – Liff v Peasley CA 1980
The court will not add a person as a defendant to an existing action if the claim was already statute-barred and he wished to rely on that defence, and if the court allows such addition ex parte it will not, on objection allow the addition to stand. . .
Cited – Oates v Consolidated Capital Services Pty Ltd 3-Jul-2009
Austlii (Supreme Court of New South Wales – Court of Appeal) CORPORATIONS – derivative action – sections 236 and 237 Corporations Act 2001 (Cth) – meaning of ‘proceedings on behalf of a company’ – whether using a . .
Cited – Cooke v Gill CCP 11-Jan-1873
What constitutes a cause of action is ‘every fact which is material to be proved to entitle the plaintiff to succeed.’ . .
Cited – Ingall v Moran CA 1944
The plaintiff had issued a writ in 1942 as administrator of his deceased son’s estate. However, he did not take out letters of administration until the November. It was said that proceedings instituted by an applicant who at the time had no standing . .
Cited – Smith v Henniker-Major and Co CA 22-Jul-2002
The claimant appealed the strike-out of his claim for professional negligence against the respondent solicitors. He claimed that the solicitors had acted in breach of their duty, and he then called a company meeting. Only he attended. He mistakenly . .
Cited – Wallersteiner v Moir (No 2) CA 1975
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
Cited – Hilton v Sutton Steam Laundry CA 1946
. .
Cited – Brickfield Properties Ltd v Newton CA 1971
Court’s Investigation of Construction Claims
The court heard an application to amend pleadings to add a claim about negligent supervision of a construction. Sachs LJ said: ‘Where there are found in completed buildings serious defects of the type here under review the facts relating to design, . .
Cited – Lucy v W T Henleys Telegraph Works Co Ltd (ICI Ltd, third party) 1970
Megaw LJ discussed the application of O 15 r 1(4): ‘Paragraph (2) of that rule provides that a court may allow a party to amend the writ ‘after any period of limitation current at the date of the issue of the writ has expired’ but this is expressly . .
Cited – Burns v Campbell 1951
An action commenced by a plaintiff in a representative capacity which the plaintiff does not in fact possess is a nullity, and, further, that it makes no difference that the claim made in such an action is a claim under the Fatal Accidents Acts . .
Cited – Finnegan v Cementation Co Ltd CA 1953
The plaintiff had obtained Letters of Administration in Southern Ireland only but sought to bring an action under the Fatal Accidents Act in England. There were two separate bases upon which the plaintiff (the widow of a workman killed in a work . .
Cited – Davies v Elsby Brothers Ltd CA 1961
The writ was issued within the limitation period for the claim against ‘Elsby Brothers (a firm)’. In fact, the firm’s business had been taken over by Elsby Brothers Ltd before the proceedings had been issued. By the time the plaintiff applied for . .
Cited – Letang v Cooper CA 15-Jun-1964
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking . .
Cited – Chatsworth Investments Ltd v Cussins (Contractors) Ltd CA 1969
. .
Cited – Braniff v Holland and Hannen and Cubitts (Southern) Ltd CA 1969
Widgery LJ said: ‘Again, I think that it would only complicate matters if I attempted to deal with the facts, but one thing is perfectly clear, namely, that in the view of Megaw J. the fact that in certain cases under Order 20 rule 5, amendments . .
Cited – Bickley v Dorrington 12-Nov-1737
A bill was brought by creditors, and by one of the residuary legatees of the testator, against his executors, the other residuary legatee, and the former partner of the testator to recover from the former partner money owing to the estate.
Cited – Alsager v Rowley 16-Mar-1802
Lord Eldon LC said: ‘The established rule of the Court is certainly . . that in ordinary cases a debtor to the estate cannot be made a party to a bill against the executor: but there must be, as the cases express it, collusion or insolvency. That . .
Cited – Bowsher v Watkins CA 16-Feb-1830
Residuary legatees brought suit against the estate executors and a surviving partner of the testator for an account. It was argued that there were no special circumstances justifying the action by legatees.
Held: Collusion between the executor . .
Cited – Davies v Davies CA 12-Jun-1837
Residuary legatees filed a bill against the executor and the surviving partner of the testator for an account of partnership transactions.
Held: In the absence of a charge of fraud or collusion, there were no special circumstances justifying . .
Cited – Barker v Birch 19-Jul-1847
There may be circumstances under which the Court will, at the suit of universal legatees under a will, direct an account against a debtor to the testator’s estate, without collusion being established between the debtor and the personal . .
Cited – In 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 . .
Cited – Milne v Milne; Travis v Milne 29-May-1851
A suit by parties beneficially interested in the estate of a deceased partner could not be maintained against both his executors and surviving partners, in the absence of special circumstances; but collusion was not the only ground for such a suit; . .
Cited – Yeatman 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 . .
Cited – Bradstock 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 . .
Cited – Morrison v Morrison’s Executors 1912
Lord Skerrington said: ‘A decree in such an action would be res judicata, provided always that the whole trustees and beneficiaries had been called as defenders.’ . .
Cited – Armour v Glasgow Royal Infirmary 1909
Lord Ordinary, Lord Skerrington said that in the ordinary case the action could be brought only at the instance of the trustees. But the testamentary trustees had been called as defenders, and concurred with the Infirmary in maintaining that the . .
Cited – Rae v Meek HL 1889
The beneficiaries under a trust created by a marriage contract sued a trustee for having lost trust money which had been lent on the security of unfinished houses in a building speculation. The trustee was held liable to restore the trust fund. The . .
Cited – Konamaneni v Rolls Royce Industrial Power (India) Limited ChD 20-Dec-2001
The claimants founded their action on the assertion that the defendants had been corrupt in obtaining contracts in India. The defendants argued that the English courts had no jurisdiction. The claimants held various small shareholdings in a company . .
Cited – E M Bowden’s Patents Syndicate Ltd v Herbert Smith and Co 1904
Where an equitable assignee sues a third party, the assignor must be joined as a defendant. The Plaintiff as the equitable owner of a patent was given liberty to amend its pleading by joining the legal owner, (failing which the Plaintiff’s case . .
Cited – In Re Selectmove Ltd CA 21-Dec-1993
Promisse to Pay Tax due is not Consideration
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
Cited – Nurcombe v Nurcombe CA 1985
The court discussed a minority shareholder’s action to enforce the company’s claim as a derivative claim. Browne-Wilkinson LJ said that such an action, where a courts in equity permitted a person interested to bring an action to enforce the . .
Cited – Vandepitte 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 . .
Cited – William Brandt’s Sons and Co v Dunlop Rubber Co HL 1905
The court was asked whether instructions given by the bank’s customer to purchasers of rubber to make payment to its bank directly, amounted to an equitable assignment of debts, so that the bank could sue for their recovery. The bank sued the . .
Cited – Weddell v JA Pearce and Major 1988
A cause of action in negligence was assigned in February 1986. The writ was issued by the assignee alone on 2 May 1986, at which time no notice of the assignment had been given to the defendants. It was argued that the action was a nullity.
Cited – Robinson v Unicos Property Corpn Ltd CA 1962
The plaintiff sought an additional averment (unsuccessfully objected to as constituting the addition of a new cause of action) to plead that the first plaintiff sued as equitable assignee of the benefit of a contract made with the defendant (the . .
Cited – Central Insurance Co Ltd v Seacalf Shipping Corpn (The Aiolos) CA 1983
Where an insurer indemnifies the assured, he is entitled to exercise, through subrogation, any claim the assured may have against the person who caused the losses. Absent an assignment of the claim, it belongs to the assured and the insurer does not . .
Cited – Red Sea Insurance Co Ltd v Bouygues SA and Others PC 21-Jul-1994
Lex loci delicti (the law of the jurisdiction in which the act complained of took place) can exceptionally be used when the lex fori (the jurisdiction formally assigned) gives no remedy. In the case of a claim under a foreign tort, the double . .
Cited – Red Sea Insurance Co Ltd v Bouygues SA and Others 1993
Hong Kong . .
Cited – William Brandt’s Sons and Co v Dunlop Rubber Co HL 1905
The court was asked whether instructions given by the bank’s customer to purchasers of rubber to make payment to its bank directly, amounted to an equitable assignment of debts, so that the bank could sue for their recovery. The bank sued the . .
Cited – Three Rivers District Council and Others v Governor and Company of Bank of England CA 6-Dec-1994
Equitable assignors of a deposit cannot pursue a claim for recovery of the assigned debt without joining in the assignee as a party, though it can sue in its own name. . .
Cited – Welsh Development Agency v Redpath Dorman Long Ltd CA 4-Apr-1994
A new claim was not deemed to have been made until the pleading was actually amended for limitation purposes, and should not be allowed after the limitation period had expired. The date of the application for leave to amend was not at issue. The . .
Cited by:
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.
Limitation, Litigation Practice
Updated: 01 November 2021; Ref: scu.415923