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A new party could not be substituted under the Limitation Act 1980 s.35 in a claim for damages following a road traffic accident where the proposed substitution was not designed to maintain the original claim but was designed to launch a new claim against a new party.
The appellants (N) appealed against the dismissal of their application to amend their claim form and the striking out of their claims against the respondent insurance company (S).
N, who were Romanian nationals, were passengers in a car which crashed in Romania. The driver (D) was killed and N suffered personal injuries. The car was owned by D's father and insured by S. N brought a claim against S just before the limitation period expired and sought payment under the European Communities (Rights against Insurers) Regulations 2002 reg.3. However, D had taken the car without permission and was uninsured so the Regulations did not apply. S sought to strike out the claims and N applied to add or substitute D's estate to the litigation. They hoped to be able to sue the estate and then recover payment from S under the Road Traffic Act 1988 s.151. The master held that the claims were the same claims in negligence for damages for personal injury and authorised the substitution of D's estate in place of S. S's appeal against that decision was allowed and the claims against S were struck out.
N submitted that the judge was wrong to find that the Limitation Act 1980 s.35 did not apply and that there was no power to order substitution on the facts of the case. They argued that, under s.35(5)(b), the substitution of the new party was necessary for the determination of the original action and that the requirement of CPR r.19.5(2)(a) had been fulfilled.
HELD: The words of s.35(3) were clear that there was no power to allow an amendment except as provided for by the Act or rules of court. The section provided for amendment outside the limitation period in specified circumstances only. The court had no power to allow a new claim to take advantage of s.35 unless the particular claim and proposed amendment came within the terms of s.35. Absent s.35 and CPR r.19, there was no power to substitute D's estate outside the limitation period. N could not bring themselves within s.35 as the original cause of action against S was derived from statute, namely the Regulations, whereas the amended claim was a claim in negligence against the alleged tortfeasor. It was, therefore, not the same claim. In substance they were two different causes of action. The proposed substitution of a new party was not designed to maintain the original claim but was designed to launch a new claim against a new party. A deliberate decision was taken by N at the outset to sue S on a particular cause of action, rather than D's estate on a different cause of action. That mistake could not be remedied by s.35 and the judge was correct to find that amendment was not necessary for the determination of the claim (see paras 29, 41-46 of judgment).
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