ADDING AN ADDITIONAL PARTY TO A PERSONAL INJURY ACTION AFTER THE EXPIRY OF THE LIMITATION PERIOD: THE TEST IS THAT OF DESIRABILITY RATHER THAN NECESSITY

In Doroudvash v Zurich Insurance PLC [2025] EWCC 10 HHJ Holmes identified a route whereby the claimant  in a personal injury case could join an additional defendant into an action after the expiry of the initial limitation period.  This construction of the rules is important. Hitherto many such applications may well have been dismissed. Alternatively claimants have been issuing fresh proceedings against new defendants, relying on Section 33, and getting the two actions consolidated.  As the judgment recognises this is hardly a sensible use of court resources.

“”The approach I have set out seems to me to reflect the reality of the situation. A necessity threshold would result in many applications failing. The effect would be that Claimants would simply bring a fresh set of proceedings against the prospective defendant. If a limitation defence was advanced, the claimant could then make an application under s.33 of the 1980 Act. All that would have been achieved was duplication in proceedings together with the inevitable cost and waste of court time.”

KEY PRACTICE POINT

This case involves a claimant who acted wholly reasonably and found themselves litigating against a defendant who had admitted liability and then obtained permission to resile from that admission after the limitation period had expired.  It is not surprising that the court exercised its discretion in the claimant’s favour.  It is always wise, however, to consider the situation when issuing proceedings, to ensure that all relevant parties are defendants.

THE CASE

The claimant police constable was injured whilst a passenger in a police car driven by a fellow P.C. The P.C. who was driving was subsequently convicted of causing serious injury by dangerous driving.  The claimant wrote to the insurers of the other car that was involved in the accident, Zurich, and they admitted liability.  The claimant, therefore issued proceedings against Zurich.

After the issue of proceedings Zurich made an application to resile from its admission, which admission was granted.

THE CLAIMANT’S APPLICATION TO ADD THE COMMISSIONER OF POLICE INTO THE ACTION

The limitation period had passed.  The other potential defendant, the Commissioner of Police, was not a party to the action. Consequently the claimant made an application to join the Commissioner into the action.

THE RULES

The rules as to joining an additional party into an action after the expiry of the initial limitation period are complex.  The judge held that the claimant’s application had identified the wrong route.  However CPR 19.6 (4) did provide a route for the claimant. Further it was appropriate, on the facts of this case, for the court to exercise its discretion to enable the claimant to add the Commissioner.

“THE JUDGMENT ON THIS APPLICATION

Mr Doroudvash’s Application

1. 1. Mr Doroudvash seeks by his application to add the Commissioner as a second defendant. The Civil Procedure Rules draw a distinction between applications to add or substitute a party before and after limitation has expired. The test in CPR r.19.2(2), which applies before limitation expires, is one of desirability. The test after the expiry of limitation is in r.19.6 and is generally one of necessity. The relevant parts of that rule are as follows:

“(2) The court may add or substitute a party only if–

(a) the relevant limitation period was current when the proceedings were started; and

(b) the addition or substitution is necessary.

(3) The addition or substitution of a party is necessary only if the court is satisfied that–

(a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party;

(b) the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or

(c) the original party has died or had a bankruptcy order made against them and their interest or liability has passed to the new party.

(4) In addition, in a claim for personal injuries the court may add or substitute a party where it directs that –

(a) (i) section 11 (special time limit for claims for personal injuries); or

(ii) section 12 (special time limit for claims under fatal accidents legislation),

of the Limitation Act 1980 shall not apply to the claim by or against the new party; or

(b) the issue of whether those sections apply shall be determined at trial.”

1. 1. In his application, Mr Doroudvash makes reference to r.17.4(2), that, however, is not the appropriate provision by which to determine the addition of a new party. The point was not pursued in oral submissions.

1. 1. Returning to r.19.6, Mr Dawson says that his client made the election to sue Zurich. He obtained an admission of liability from Zurich. He held that admission of liability for a long period of time – a period which spanned the expiry of limitation. It was only after the liability was withdrawn that the application became necessary. Mr Dawson says that his client is now faced with the spectre of being an innocent passenger, who has now lost his admission of liability, and might fail at trial against Zurich. He would then receive no compensation despite the Commissioner having, in other proceedings, admitted liability for the accident.

1. 1. If Mr Doroudvash was able to bring himself within r.19.2(2) he would have little difficulty in overcoming the desirability test. But that is not necessarily the test to be applied here.

1. 1. Mr Doroudvash’s position at the hearing was that the addition of the Commissioner was necessary and that the court could, therefore, add the Commissioner under r.19.6(2). Sub-rule (3) sets out the basis upon which a court can be satisfied as to necessity. Neither paragraphs (a) or (c) apply here. That leaves Mr Doroudvash needing to demonstrate that the claim cannot properly be carried on against the original party unless the new party is added as a defendant. That is clearly not the position here. Mr Doroudvash still maintains that he has a good claim against Zurich. That is a claim which can continue whether or not the Commissioner is a party. It may succeed, it may not; but that does not mean that it is necessary to add the Commissioner. It is quite clear from the authorities set out in the commentary to r.19.6 in the White Book 2024 at paragraph 19.6.5, that Mr Doroudvash’s position is not one of necessity.

1. 1. Having come to that conclusion, and having considered r.19.6(4), it seemed surprising that Mr Doroudvash had not sought to focus his argument on that rule. I invited additional written submissions from counsel for Mr Doroudvash and the Commissioner on the application of r.19.6(4), specifically whether an application to disapply the primary limitation period under s.33 of the Limitation Act 1980 (“the 1980 Act”) was a necessary step before the court could consider r.19.6(4), and if so whether the test was one of necessity or desirability – a question posed by Stuart-Smith, L.J. in Pawley v. Whitecross Dental Care Ltd [2021] EWCA Civ 1827, [2022] 1 WLR 2577, but not answered. I am grateful to both counsel for their detailed further submissions.

1. 1. To understand the structure of r.19.6, it is necessary to acknowledge the distinction between what a court is doing under r.19.6(2) and r.19.6(4). Under r.19.6(2) the court is disapplying the provisions of the Limitation Act 1980 which would otherwise provide a defence to the claim. The need to do this was anticipated by Parliament in s.35 of the 1980 Act. The test of necessity, which is the threshold in r.19.6(2), is provided for in s.35(5) of the 1980 Act. The rule is therefore simply giving effect to a statutory power.

1. 1. Parliament, however, set a different threshold for personal injury and fatal accident claims. The primary limitation period in ss.11 and 12 of the 1980 Act, was supplement by a power to disapply those periods if it is equitable to do so. That power is contained in s.33 of the 1980 Act. It is the power in s.33 which no doubt caused the rule committee to draft r.19.6(4) as it did.

1. 1. In my judgment it is telling that neither s.33 nor r.19.6(4) use the term “necessary”. The difference in approach reflects not only the statutory test, but also the reality. A claimant in a case to which s.33 of the 1980 Act does not apply, can only use r.19.6(2) to seek to pursue his claim against a different party. If he brought a freestanding claim, it would almost inevitably be defeated by a limitation defence. The position of a claimant who can use s.33 is that he can bring a freestanding claim, a limitation defence may be deployed, but if it is, he can invite the court to disapply the limitation period under s.33. There is, therefore, another route.

1. 1. Mr Callow for the Commissioner argues that despite this, an applicant can only succeed in an application under r.19.6(4) where he can show that it is necessary to add the new party. The only case which deals with these provisions is Pawley v. Whitecross Dental Care Ltd [2021] EWCA Civ 1827, [2022] 1 WLR 2577. The issue identified is whether, if s.33 applies, or might apply, the test should be one of necessity as opposed to desirability. At paragraph 48, Stuart-Smith, L.J. expresses it in this way:

“There is logic in the suggestion that (a) in a case where section 11 is disapplied by the court there is no further limitation issue and therefore the test should be that adding the party is “desirable” but that (b) in a case where limitation is left to trial the test should be that it is “necessary” to join the party. On the other hand, it could be said that leaving limitation over to trial means that the limitation defence is not established and that therefore to require necessity is too high a threshold. The problem is that the rule neither says nor indicates how this conundrum should be resolved.”

1. 1. In my judgment the correct approach is to consider desirability rather than the necessity of adding a party when considering an application under r.19.6(4). As already observed the rule does not set a necessity test, and that is not surprising where the rule is not seeking to implement s.35 of the 1980 Act. To imply a high threshold for such an application into r.19.6(4) is not necessary or desirable.

1. 1. Rule 19.6(4) simply gives the court a discretion as to whether to add. The court must exercise that power judicially. The test of desirability, echoing the approach in non-limitation cases in r.19.2(2), may be the sensible approach. However, in my judgment what is required is a consideration of the circumstances of the application, and as Stuart-Smith, L.J. says in para. 49 of Pawley, that would bring into play all the circumstances and the application of the overriding objective. If the court decides under r.19.6(4)(a) that the primary limitation period should not apply, it is difficult to see on what basis a court may still refuse permission to add the additional party. Where the court is not in a position to consider the merits of a s.33 application at this stage, then the court should go on to consider whether a new party should be added to allow the limitation issue to be litigated. If it would fail, that would be a powerful reason for not adding a new party. The strength or otherwise of the potential s.33 application could, and perhaps should, be one of the factors taken into account in determining the desirability of allowing the addition.

1. 1. The approach I have set out seems to me to reflect the reality of the situation. A necessity threshold would result in many applications failing. The effect would be that Claimants would simply bring a fresh set of proceedings against the prospective defendant. If a limitation defence was advanced, the claimant could then make an application under s.33 of the 1980 Act. All that would have been achieved was duplication in proceedings together with the inevitable cost and waste of court time.

1. 1. I cannot see anything in the rule which precludes such an approach, and that appears to be the view of Stuart-Smith, L.J. in Pawley. It is by far the better practical solution. The court could, after the pleadings have been exchanged, determine that limitation should be tried as a preliminary issue, or, perhaps as here where there will be a trial in any event of the claim against Zurich and the contribution claim between Zurich and the Commissioner, that any s.33 application could be dealt with far more conveniently at trial.

1. 1. The final issue is whether to consider an application under r.19.6(4) it is necessary for there to be an application before the court seeking reliance on s.33 of the 1980 Act. I can see nothing in the rule which requires that. Mr Doroudvash has included in his application r.19.6(4). He has therefore included the possibility of the court using the power in sub-rule(4). There is nothing in the sub-rule which requires an application under s.33. If such an application were included in the application, then the court might well have decided the limitation issue and simply disapplied the limitation period and deprived the defendant of that defence.

1. 1. In my judgment the court has the power on the application before it to make an order under r.19.6(4)(b). In my judgment it is desirable to exercise the power in this case. The prospect of a s.33 application succeeding is far from fanciful against the factual background in this case. If the s.33 application did not succeed, there would be a prospect of the Commissioner, who has admitted liability for this accident in other proceedings, escaping liability because of an early admission of liability by Zurich. It is in my judgment desirable for the Commissioner to be added as a second defendant.

1. For these reasons, Mr Doroudvash’s application succeeds. The question of limitation is to be left for trial if the Commissioner chooses to plead a limitation defence.”