The plaintiff had sued his club under its name, but it was an unincorporated association, and the action was stricken out as improperly constituted. The first writ issued within the primary limitation period but was ineffective. The defendant claimed limitation under Walkley in defence of the second action.
Held: The Walkley principle does not apply to defeat in limine a second action, notwithstanding that the defect was capable of being cured by substituting the names of representative members. The plaintiff could rely on section 33: ‘There was no action in being against the present defendants at the time when the limitation period expired or thereafter when the application under section 33 was made. . . But it seems to me that the plaintiff is now prejudiced by section 11, since he cannot bring this first properly constituted action unless he can avail himself of section 33. . . In my view, the position is now that he is prejudiced by section 11 and is entitled to rely on section 33. . . This is not a case of a mere repetition of an identical action which has been instituted during the limitation period. In the present case the action which had started during the limitation period was defective and invalid and not capable of resurrection . . The Court is therefore entitled to conclude that the provisions of section 11 prejudiced the plaintiff in relation to the present action. Accordingly I would dismiss this appeal and allow this action to proceed by reason of section 33.’
Judges:
Kerr LJ
Citations:
Times 18-Feb-1989, Transcript No 140 of 1989
Statutes:
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 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 . .
Applied – Re Workvale Ltd (In Liquidation) CA 8-Apr-1992
A limited company was correctly restored to the register from dissolution so that its insurers could face an arguable claim. Where a first writ issued within the primary limitation period was ineffective (although not a nullity) through having been . .
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.
Personal Injury, Limitation
Updated: 06 May 2022; Ref: scu.185755
