Liff v Peasley and Another [1980]

FACTS:-

On 25 October 1973 the plaintiff was injured whilst travelling as a passenger in a car driven by S, when the car collided with another car driven by P. There was evidence that P was solely to blame for the accident. On 1 August 1975, within the primary limitation period prescribed for the action under s 2A of the Limitation Act 1939, the plaintiff issued a writ against P claiming damages. P’s insurers repudiated liability and notified the Motor Insurers’ Bureau (‘the MIB’) who nominated other insurers for P.   The primary limitation period expired on 2 October 1976. The plaintiff delivered his statement of claim against P in June 1977 and P delivered a defence in September where he alleged that the collision was wholly or partly caused by the negligence of S.

At the instance of the MIB the plaintiff and P applied ex parte to join S as a defendant to the action, and on 5 October 1978 a master ordered that S be joined as second defendant and that the plaintiff be given leave to amend the statement of claim. On 22 January 1979 another master gave leave to amend the writ to join S. The solicitors for S entered an unconditional appearance to the amended writ and, after accepting service of the amended statement of claim, served a defence pleading that the action against S was time-barred.

Subsequently S challenged his joinder and applied (i) for an order that the claim against him be struck out as being time-barred, notwithstanding s 2Da of the 1939 Act, or (ii) alternatively, for an order under RSC Ord 15, r 6b that he should cease to be a party to the action because he had been improperly joined.

The judge made no order on the first application and dismissed the second application. S appealed.

On the appeal the plaintiff and P contended (i) that, because S had entered an unconditional appearance instead of following the usual procedure whereby a person objecting to joinder entered a conditional appearance and applied to set aside the amended writ, he (a) had lost his right to have the joinder set aside since he could not contend that he had been improperly joined and (b) was not entitled to rely on the statute of limitation as a defence because the true basis of the court’s practice not to allow joinder of a person as defendant to an existing action if the claim against him was already time-barred (‘the rule of practice’) was that the joinder was deemed to relate back to the date of the original writ (‘the relation back’ theory), (ii) that, accordingly, the action against S was deemed to have begun on the date of the original writ and was therefore deemed to have begun in time, and (iii) that his plea that the action was time-barred was not available to him.

HELD:-

The appeal was allowed and an order was made so that S ceased to be a party to the action.

The reasons for the judgment were given follows.  The joinder, contrary to the rule of practice, of a person as a defendant when the claim against him was time-barred was not a mere irregularity of process which could be waived by entry of an unconditional appearance to the amended writ, because the joinder took away an accrued right of defence under the 1939 Act. Even though S had been properly joined and had entered an unconditional appearance to the amended writ, he was not precluded from objecting to his joinder. As the claim against S was already time-barred when he was joined, he was entitled to an order under RSC Ord 15, r 6(2)(a), that he cease to be a party to the action, because either he was a person ‘who has been improperly … made a party’, within r 6(2)(a), or, as soon as it was known that he would plead the limitation defence, he had ‘ceased to be a proper party’, within r 6(2)(a).

Assuming, however, that the entry of an unconditional appearance did preclude S from objection under Ord 15, r 6 to his joinder, he would be entitled to plead the 1939 Act because the true basis of the rule of practice was not the ‘relation back’ theory but that the action against a person joined as defendant was deemed to have been commenced against him from the date on which the writ was amended, so that if the action was then time-barred there was no useful purpose in allowing the joinder. Accordingly, the joinder of S took effect only from the date on which the writ had been amended, and not from the date of the original writ. On that basis, the court would summarily dismiss the action against him on the ground that it was time-barred.

The court would not exercise its discretionary power under s 2D of the 1939 Act to extend the primary limitation period because (a) the plaintiff was not prejudiced by s 2A, within s 2D(1)(a), since he had a cast-iron case against P, and the MIB were required to satisfy any judgment against P, and (b) the presence of the MIB in the case was one of the circumstances of the case to which, under s 2D(3), the court was required to have regard (Firman v Ellis [1978] 2 All ER 851 and Walkley v Precision Forgings Ltd [1979] 2 All ER 548 applied).

Stephenson LJ, allowed the appeal on the basis of applying RSC Ord 20, r 5 and held that Mr Spink’s ceased to be a party.  Brandon LJ agreed with Stephenson LJ.

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