Limitation of Actions Consultation - Law Commission

any party wishes to amend a pleading. These rules fill out in detail the
requirements of section 35 of the 1980 Act.
9.31 The notion in section 35(1) that new claims are deemed to have been started at
the date of the original action (the “relation-back” principle), departs from the
common law position, which holds that amendments made during the course of
the proceedings should be considered to have been made on the date they were
made. 84
The question then arises of when and how any possible limitation
questions are to be settled. Are sections 35(1) and (3) to be interpreted so that, if
the court allows a new claim to proceed, it will be open to the person, against
whom that claim is made, to plead any arguments based on limitation in his or her
defence? Or are they to be interpreted so that, once the court allows the new claim
to be brought, the relation-back doctrine takes effect, with the result that no
further limitation issues can be raised? 85
In Kennett v Brown 86
the Court of Appeal
had supported the first of these interpretations. However, the Court of Appeal
later overruled Kennett v Brown in Welsh Development Agency v Redpath Dorman
Long Ltd, 87
where the second interpretation was adopted. It was held that, where a
plaintiff sought to add causes of action which were found not to arise out of
substantially the same facts as the causes of action already pleaded, an amendment
should only be allowed if the plaintiff could show that the defendant did not have a
reasonably arguable case on limitation, and that therefore the operation of section
35(1) did not deprive the defendant of a limitation defence which it would have
been able to raise if the new claim had been commenced as a separate action.
9.32 What constitutes a “new claim” has been the source of difficulty. As we have seen,
section 35 focuses on two situations: the addition of a new cause of action, and the
addition or substitution of a new party. Interpreted literally, this might seem
include cases where the writ needs to be amended to change the identity of the
plaintiff in existing proceedings because another body has succeeded by operation
of law to all its assets, including the cause of action. In Yorkshire Regional Health
Authority v Fairclough Building Limited 88
the Court of Appeal held that where all
the assets and liabilities of a regional health authority were the subject of a
statutory transfer to a hospital trust, as part of a reorganisation of the National
Health Service, such a substitution of a new party to an existing claim did not
involve the making of a “new claim” and was thus not affected by section 35 of the
Limitation Act 1980. Furthermore, even if there were a new claim, the substitution
plainly fell within Order 15, rule 7, 89
and section 35(3) therefore did not prohibit
84 See Ketteman v Hansel Properties Ltd [1987] AC 189 and Liff v Peasley [1980] 1 WLR 781.
85 See R James “The ‘Relation Back’ Principle of Amendment - a Source of Confusion”
(1987) 38 NILQ 257. See further R James “New Claims and Limitation Periods” (1995)
14 CJQ 42.
86 [1988] 1 WLR 582.
87 [1994] 1 WLR 1409. The Court of Appeal (Glidewell, Simon Brown and Peter Gibson LJJ)
regarded themselves as able to overrule the earlier decision because Kennett v Brown was
decided ex tempore and on an interlocutory basis, by only two Lords Justices.
88 [1996] 1 WLR 210.
89 RSC, O 15, r 7 reads:
174