New Decision on Limitation of Actions and Joinder of Parties
In Burton & Anor v Bowdery & Ors [2017] EWHC 208 (Ch), the claimant buyers claimed relief against the first and second defendants for, inter alia, breach of an agreement to sell a property, entered into by exchange of contracts on 20 November 2009. The claim was issued on 5 March 2015. The third defendant was the conveyancing solicitor who acted or purported to act on behalf of the sellers in the transaction and in the exchange of contracts. In her defence, the second defendant denied that she was a party to the agreement or that the third defendant had authority to act on her behalf. The claimants amended their particulars of claim to claim, in the alternative set out in the second defendant’s defence, a breach of warranty of authority by the third defendant. The claimants applied to join the third defendant on 2 September 2016 (after expiry of the primary limitation period). He was joined to the main claim by Deputy Master Lloyd without a hearing, the existing parties (but not the third defendant) having consented to joinder.
The third defendant applied under CPR 3.1(7) to set aside the joinder order. Master Clark held that the third defendant had a reasonably arguable limitation defence, so that he should not have been joined if the doctrine of “relation back” under s35(1)(b) of the Limitation Act 1980 applied. However, she held that the claim fell within s35(1)(a) of the Limitation Act 1980, being a “claim made by way of third party proceedings” within the meaning of s35(2). Accordingly, the doctrine of “relation back” did not apply, the claim being deemed to have been commenced on service of the amended claim form and particulars of claim on the third defendant. Thus, there was no prospect of a reasonably arguable limitation defence being prejudiced by joinder, and the third defendant had been appropriately joined. It was held that Chandra v Brooke North (A Firm) [2013] EWCA Civ 1559 “is authority for the limited proposition that amendment (and joinder) should be refused where relation back would apply, and the defendant has a reasonably arguable limitation defence. It is not authority for the broader proposition contended for by D3's counsel, namely, that whenever the defendant raises an arguable limitation defence, joinder must be refused”. Toby Boncey appeared for the successful claimants.
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