Martin v Kaisary & Anor

After expiry of the primary limitation period, a new defendant may be added under CPR Part 19.5 only where the existing claim cannot properly be carried on without that party. The test of necessity is strict because joinder removes the new party’s accrued limitation defence. It is not met merely because joinder would enable an alternative negligence claim or give the claimant a tactical advantage.

Where the original defendant’s liability can be determined by factual evidence from the proposed defendant’s employees, without deciding whether those employees were negligent, the claim can properly continue without joinder. CPR Part 19.5 must be construed within the limited rule-making power in Limitation Act 1980, section 35.

The claimant underwent prostate surgery at the Royal Free Hospital as a private patient of the first defendant surgeon. After post-operative internal bleeding and a cardiac arrest, he sustained permanent brain damage. He issued proceedings against the surgeon shortly before limitation expired, alleging personal negligence and vicarious liability for hospital medical and nursing staff.

The surgeon denied responsibility for those staff. After the limitation period had expired, the claimant sought under CPR Part 19.5 to add the hospital trust as a second defendant. Simon J refused permission. The claimant appealed, contending that the claim against the surgeon could not properly proceed unless the trust was joined.

1. Appeal dismissed unanimously. The claimant did not satisfy CPR Part 19.5(2) and (3)(b). Those provisions permit post-limitation joinder only where the new party is necessary because the claim cannot properly be carried on against the original defendant without it.
2. The rule must be approached cautiously. Its effect is to deprive the added party of an accrued limitation defence. Its statutory source, section 35 of the Limitation Act 1980, confirms that it does not create a broad power to facilitate a fresh alternative claim against a new defendant.
3. Determining the surgeon’s liability required findings about the hospital staff’s observations, records and communications with him. It did not require a finding whether those staff had themselves been negligent. There is no property in a witness. The claimant could compel relevant staff to give factual evidence, and much of the evidence was likely to be agreed from the medical records. The trust’s joinder was therefore not necessary.
4. The court declined to determine CPR Part 19.5(3)(a), concerning a mistake in naming a party. That argument had not been properly raised or supported by an amended appeal. The court nevertheless observed that the language of CPR Part 19.5, particularly in light of [2005] EWCA Civ 134 and [2004] EWCA Civ 1551, merited reconsideration by the rule-making committee.
5. The appeal was dismissed with costs, payment deferred until the end of the case.

• Court of Appeal (Civil Division): Dismissed the claimant’s appeal and upheld the refusal of post-limitation joinder under CPR Part 19.5.
• High Court, Queen’s Bench Division (Simon J): Refused permission to add the Royal Free Hospital Trust as a defendant under CPR Part 19.5(2) and (3)(b). The citation is not stated in the judgment.