Roberts v Gill & Co Solicitors & Ors

Summary

Easter Term
[2010] UKSC 22
On appeal from: [2008] EWCA Civ 803

JUDGMENT

Roberts (FC) (Appellant) v Gill & Co Solicitors and others (Respondents)

before

Lord Hope, Deputy President
Lord Rodger
Lord Walker
Lord Collins
Lord Clarke

JUDGMENT GIVEN ON

19 May 2010

Heard on 22 and 23 February 2010

Appellant
Leslie Blohm QC
Guy Adams
(Instructed by Chilcotts)

Respondent
Tom Dumont
(Instructed by Barlow Lyde & Gilbert LLP )

LORD COLLINS:

Introduction

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.

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.

But section 35 has been described as being "without doubt one of the most convoluted provisions in the entire law of limitations" (McGee, Limitation Periods, 5^th ed 2006, para 23.003). That is no doubt why there have been more than 25 decisions of the Court of Appeal on section 35 and the rules of court.

The background

JUDGMENT