Adding a party out of time

Limitation, issue and service often find themselves at the forefront of procedural arguments raised by defendants in the early stages of the Court process. All three played a part in a recent case that we acted in.

The background facts of the claim can be summarised as follows.

The claimant was walking down a road in London when he was allegedly hit on the head by a piece of wood. He alleged that the wood came from construction works that were being carried out on the fourth floor of a nearby building. Our client had erected the scaffolding for this building work. Based on the date of the CFA the claimant first instructed solicitors shortly after the accident occurred. However, our client, who was unaware that an incident had even occurred, did not hear anything until after the expiry of the primary limitation period.

Shortly before the expiry of the limitation period the claimant issued against two other defendants. A few months later, after the expiry of primary limitation period against our client, but before proceedings were served on any defendant, the claimant added our client to proceedings. The claimant did not seek the Court's permission when doing so. No explanation was offered by the claimant as to why our client had not been pursued within the primary limitation period or why the Court's permission had not been obtained when making this amendment. We made an application to set aside the addition of our client to proceedings on the basis that the addition was after the expiry of primary limitation and did not comply with the criteria in the Civil Procedure Rules or the Limitation Act 1980.

The claimant discontinued his claim against our client shortly before the application hearing. Making this application at a very early stage and taking the procedural point extracted our client from what could have been a significant claim (due to a potential head injury) before significant costs had been incurred.