Limitation of Actions Consultation - Law Commission

1980 and cannot be reformed without primary legislation. Secondly, we are aware
that difficulties have been, and continue to be, caused by section 35 and the
accompanying Rules of Court.
9.29 Where a “new claim” is made in an existing action, section 35 provides that it is
deemed to be a separate action, and to have commenced, in the case of third party
proceedings, 74
on the date those proceedings were commenced, and in the case of
any other claim on the date the proceedings were commenced in the original
action 75
(the ‘relation-back’ principle). A new claim is defined as any claim by way
of set-off or counterclaim, and any claim involving the addition or substitution of a
new cause of action or party. 76
By section 35(3), however, new claims which have
been related back in this way (other than an original set-off or an original
counterclaim by a party who has not previously made any claim in the action) will
not be permitted after the expiry of a time limit under the 1980 Act which would
affect a new action to enforce the claim, unless rules of court permit, or unless
section 33 77
applies. Mandatory conditions are set out, which must be satisfied if a
new claim is to be permitted under rules of court. 78
Where the claim involves a
new cause of action, the cause of action must arise out of substantially the same
facts which are already in issue on any claim in the original action. 79
Where the
claim involves the addition or substitution of a new party, that addition or
substitution must be necessary for the determination of the original action. 80
It
will not be regarded as necessary unless the new party is substituted for a party
whose name was originally included by mistake for the new party’s name, or if a
claim made in the original action cannot be maintained by or against an existing
party unless the new party is joined or substituted as plaintiff or defendant in the
action. 81
9.30 The provisions of section 35 have been accompanied by the Rules of the Supreme
Court, Order 15, rule 6, 82
and Order 20, rule 5 83
(which also apply in county court
74 Defined in s 35(2) as “any proceedings brought in the course of any action by any party to
the action against a person not previously a party to the action, other than proceedings
brought by joining any such party to any claim already made in the original action by the
party bringing the proceedings”
75 Section 35(1).
76 Section 35(2).
77 Which gives the court discretion to disapply the limitation period in personal injury cases:
see paras 3.66 - 3.76 above.
78 Section 35(4).
79 Section 35(5)(a).
80 Section 35(5)(b).
81 Section 35(6).
82 Rule 6(5) No person shall be added or substituted as a party after the expiry of any
relevant period of limitation unless either -
(a) the relevant period was current at the date when proceedings were commenced and
it is necessary for the determination of the action that the new party should be
added, or substituted, or
(b) the relevant period arises under the provisions of s 11 or 12 of the Limitation Act
1980 and the Court directs that those provisions should not apply to the action by or
against the new party.
172