1. This appeal concerns a claim by a beneficiary under a will for negligence against solicitors who, he claims, allowed his brother, also a beneficiary and then the administrator of the estate, to acquire and dispose of land which should have been part of the residuary estate. The claim was begun in a personal capacity, but it is now accepted that a claim that the solicitors owed a duty of care to beneficiaries would be difficult to sustain, and the claimant seeks to amend the proceedings to claim in a representative capacity on behalf of the estate. The events of which the claimant complains happened 13 or 14 years ago.

2. The principal questions on this appeal relate to whether this is an appropriate case for a representative (or derivative) claim, which was the focus of the judge’s decision, and to the interpretation and application of section 35 of the Limitation Act 1980 and the rules of court which were enacted pursuant to it, first in the Rules of the Supreme Court, and now in the Civil Procedure Rules. The limitation issues were the main focus of the decision of the Court of Appeal. Section 35 was enacted following recommendations of the Law Reform Committee in 1977. It had two main objectives. The first was to enable a plaintiff to amend pleadings out of time so as to sue in another capacity, in particular to reverse the effect of such decisions as Ingall v Moran [1944] KB 160, which created a grave injustice where proceedings were instituted under the Law Reform (Miscellaneous Provisions) Act 1934 prior to letters of administration being taken out and the limitation period expired before proceedings were instituted in a representative capacity: the grant did not date back to the date of death, by then it was too late to issue fresh proceedings or to amend. The second objective was to enable parties to be added out of time, in cases where joinder of the new party was necessary if the plaintiff’s claim was to succeed, for example where the plaintiff was an equitable assignee and had omitted to join the assignor prior to the expiry of the limitation period.

3. But section 35 has been described as being “without doubt one of the most

Periods, 5th ed 2006, para 23.003). That is no doubt why there have been more	convoluted provisions in the entire law of limitations” (McGee, Limitation
than 25 decisions of the Court of Appeal on section 35 and the rules of court.
The background
4. Mrs. Alice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Roberts v Gill & Co

Details

AGLC: Roberts v Gill & Co [2010] UKSC 22
Case: [2010] UKSC 22
Decision Date

CaseChat Overview and Summary

In Roberts v Gill & Co, the Supreme Court dismissed an appeal by Mark Roberts against the decision of the Court of Appeal to refuse permission to amend a claim in personal capacity to a derivative claim in representative capacity. The case involved a dispute over the administration of the estate of Mrs Alice Margot Roberts, with Mark Roberts and his brother John Roberts being beneficiaries under her will. Mark Roberts sought to amend his claim against solicitors who had acted for John Roberts, the administrator of the estate, to a derivative claim on behalf of the estate. The key issues were whether there were special circumstances justifying the derivative claim and whether the amendment was permissible after the limitation period had expired. The Supreme Court held that there were no special circumstances for the derivative claim and that the amendment was not permissible under the Civil Procedure Rules. The Court also discussed the requirement for the joinder of the administrator in derivative actions and the interaction between the Limitation Act 1980 and the Civil Procedure Rules. The appeal was dismissed on the ground that the Court of Appeal was right to hold that the amendment to pursue a derivative claim was not permitted by the Civil Procedure Rules after the expiry of the limitation period.

Orders