this was solved by the sabludowski-plotosnki-warminger condition of the
fourth section of the paracha seventy, for cases of redundant concussion
palma, apgs
On Sun, Dec 3, 2017 at 11:05 PM, Redacted sender jlsperanza for DMARC <
dmarc-noreply@xxxxxxxxxxxxx> wrote:
For the record, three references (besides that in para 101) to §35(7),
which is the one cited by Lord Walker (in para 101) as one of the contexts
for the ‘analysis’ of the ‘concept’ of ‘capacity’. We see it relates to a
broader concept, that of ‘alter a capacity’ or ‘alter the capacity.’
Philosophers who are into conceptual analysis are very careful as to what
is the analysandum for surely it is on the analysandum that the analysans
depends!
Para 34 makes a reference to “35(7)” as “deal[ing] with the ANOMALY that,
where probate [is] granted to a person as executor, leave to amend to make
a claim on behalf of the estate could be given because the title relate[s]
back to the death, but where the plaintiff [is] subsequently granted
letters of administration in such cases, the title relate[s] back to the
date of the grant, which would have been after the issue of the writ. This
ha[s] the effect of removing the … injustice caused by [other] decisions.”
Previously in the same para 34, “RSC Ord 20, r 5 is … amended. … [A]
change is [made] to permit amendment to a party’s CAPACITY not only to A
CAPACITY which the party ha[s] at the date of the commencement of the
proceedings but also to a change to A CAPACITY which the party ha[s] since
acquired. This [gives] effect to a recommendation of the Law Reform
Committee, enacted as §35(7).”
Later, in para 38: “Rules of court … allow a party to claim relief in a
new CAPACITY: §35(7). The rule is CPR 17.4(4): The court … allows an
amendment TO ALTER THE CAPACITY in which a party claims IF THE NEW CAPACITY
is one which that party ha[s] when the proceedings start[s], or has since
acquired.”
Finally, in para 98: “These hard cases [turn] on the technical but
long-established distinction between the position of an executor (whose
standing relates back to the deceased’s death, and is merely confirmed by
probate) and an administrator (whose title depends on, and dates from, the
grant of letters of administration). That distinction [ceases] to be
[conceptually apt] BECAUSE OF §35(7) … and CPR r17.4(4) (made pursuant to
§35(7)). Rule 17.4(4) REPLACES RSC Order 20 r5(4). It provides that “the
court … allow an amendment TO ALTER THE CAPACITY in which a party claims if
THE NEW CAPACITY is one which that party [has] when the proceedings
start[s] or has since acquired.” Here it is the last four words – “or has
since acquired” -- added to Order 20 r5(4)) that make the important
[conceptual] change.”
So it seems it’s more than the conceptual analysis of ‘capacity’ that is
involved, but the conceptual analysis, which may involve a bit of valuing,
as it deals with this or that INjustice, of the more complex concept of
“ALTERING THE CAPACITY,” or ‘altering a capacity.’ It may be up to the
specific conceptual analyst to prefer ‘the capacity’ or ‘a capacity’ in the
formulation of the analysandum!
I also note for the record the three occurrences (in two paras) of the
complex concept “representative capacity,” which is involved in this act of
‘altering,’ which seems to be the proper object for ‘conceptual analysis’:
“40. [A]n amendment to treat Mark Roberts’s claim as a REPRESENTATIVE
claim, rather than as a PERSONAL claim would be an amendment TO ALTER THE
CAPACITY in which he claims: *Haq v Singh* *EWCA Civ 957*, *1 WLR 1594*
, at [19], per Arden LJ. CPR 17.4(4) permits such a change to be made IF
the new [REPRESENTATIVE] capacity is one which Mark Roberts has when the
proceedings start or he has since acquired. Mark Roberts has throughout THE
CAPACITY of beneficiary. It is [however] not necessary to decide whether
the REPRESENTATIVE CAPACITY is one which Mark Roberts has … at all times,
since … the court … allow[s] the amendment TO ALTER THE CAPACITY in which
he sues.”
“70. It follows that the limitation PROBLEM cannot be OVERCOME [or as
McEvoy would prefer, ‘solved’] by amendments in separate stages so as to
procure the result that the addition of the administrator would be
necessary “for the determination of the original action” for the purposes
of §35(5)(b). The argument for amendments in separate stages is this.
First, there would be an amendment TO CHANGE [OR ALTER] THE CAPACITY in
which Mark Roberts sues FROM his PERSONAL CAPACITY to A REPRESENTATIVE
CAPACITY under CPR 17.4(4). Second, this would have the effect that the new
claim in THE REPRESENTATIVE CAPACITY capacity is DEEMED to commence on the
same date as the original action: §35(1)(b); §35(2)(a). Third, the addition
of the administrator WOULD be necessary because the claim in the original
action (i.e. the back-dated representative claim) cannot be maintained
against the solicitors unless the administrator is joined: §36(5)(b);
§36(6)(b).”
Or so it seems!
Cheers,
Speranza
