AMENDMENT OF CLAIM TO JOIN A NEW PARTY WHEN THERE IS AN ISSUE OVER LIMITATION: APPEAL AGAINST JOINDER ALLOWED

In Trainer v Cramer Pelmont (a firm) [2019] EWHC 2501 (QB)  Mr Justice Walker examines the provisions of s14A of the Limitation Act in considerable detail.  This is one of those judgments that is likely to be authoritative for years to come. However I want to isolate one point of practice arising from the case – amendment when limitation is in issue.

THE CASE

The claimant brought proceedings in relation to the  two properties. She attempted to join the third defendant, a firm of solicitors, into the action.  The Deputy Master allowed the claimant’s application.  The defendant appealed.

THE TEST

The judgment encapsulates the legal test for considering amendments when limitation is in issue.  The effect of an amendment is that the proceedings against the new defendant are deemed to be started at the date of issue.  The court needs to consider whether, in allowing the amendment, it is depriving the new defendant of a limitation defence.

“It is common ground that the critical question for the master was whether, at the date of the amendment on 31 January, it was reasonably arguable that the claim against Cramer Pelmont was time barred. If so, allowing the amendment would deprive Cramer Pelmont of a potential limitation defence. It is well established that the right course in those circumstances would be to disallow the amendment. This would leave Mrs Trainer to fall back on fresh proceedings in which the court could determine whether or not she was indeed entitled to the benefit of section 14A.”

ONE SOLUTION: IF IN DOUBT ISSUE NEW PROCEEDINGS

One way for a claimant to resolve the issue is to issue new proceedings ”

Mrs Trainer has, on a precautionary basis, already begun such proceedings. I shall refer to them as “the precautionary proceedings”.

This shows how important it can be to have a two-pronged approach if a claimant is concerned in relation to limitation issues. Issuing new proceedings (and applying for two actions to be heard together) could be a more expedient way of progressing.  The real risk is the limitation period could expire during the time application to amend is being determined.

THE RESULT OF THE APPEAL

The judge overturned the Master’s decision. He held that there were reasonable arguments that had the result that the claimant had acquired reasonable knowledge prior to her bankruptcy.  In the alternative “ It involves novel arguments in an area of developing law, and I consider that if it were to arise it is best dealt with at a full trial.”