Burton & Anor v Bowdery & Ors

Joinder should be refused under CPR 19.5 where relation back would apply and the proposed defendant has a reasonably arguable limitation defence. That principle does not require refusal whenever such a defence is arguable. Where expiry of the limitation period is unclear and joinder causes no prejudice, the court may join the party. Separate proceedings followed by consolidation would otherwise increase expense and court resources without practical benefit. Parties may also agree the commencement date for limitation purposes, provided the agreement or undertaking is appropriately worded.

The claimants sought damages arising from the sale of Lane End Cottage. The third defendant, the conveyancing solicitor involved in the transaction, was joined to the existing claim after the contractual transaction had occurred. He applied under CPR 3.1(7) to set aside the joinder order and sought to set aside service on jurisdictional and limitation grounds.

The central issues were whether the claim against him had a reasonably arguable limitation defence, whether it constituted third-party proceedings under section 35 of the Limitation Act 1980, and whether Chandra v Brooke North (A Firm) applied to the joinder application.

1. The set-aside application and the related applications to challenge jurisdiction and service were dismissed.
2. The claim against the third defendant had a six-year primary limitation period under section 5 of the Limitation Act 1980. The alleged breach occurred on 20 November 2009, so the primary period expired on 19 November 2015.
3. The claimants were entitled to rely on section 32 of the Limitation Act 1980 at the joinder stage, although deliberate concealment had not been pleaded. Limitation is a defence which must be pleaded by the defendant. The third defendant’s evidence gave rise to a reasonably arguable case that he had not deliberately concealed any lack of authority, while the claimants also had an arguable case to the contrary. The issue required factual investigation at trial.
4. The claim against the third defendant fell within section 35(1)(a) as third-party proceedings. It was brought in the course of the existing action against a person who had not previously been a party, and was not the addition of that person as defendant to a claim already made in the original action.
5. Chandra v Brooke North (A Firm) was authority only for the limited proposition that amendment or joinder should be refused where relation back would apply and the defendant had a reasonably arguable limitation defence. It did not establish that joinder must always be refused whenever such a defence was arguable.
6. Where limitation remained uncertain and the proposed defendant would suffer no prejudice, joinder was permissible. A fresh claim would place the third defendant in the same limitation position and would then require consolidation, contrary to the overriding objective.
7. It was also permissible in principle for the parties to agree the date on which the claim was deemed commenced for limitation purposes. Such an agreement was unnecessary on the facts.