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(b) the claim cannot properly be carried on by or againstthe original party
unless the new party is added or substituted as claimant ordefendant; or(c) the
original party has died or had a bankruptcy ordermade against him and his
interest or liability has passed to the new party.(Rule 17.4 deals with other
changes after the end of arelevant limitation period)."37. In 2001 the Law
Commission,Limitation of Actions (Law Com 270) recommended that the addition of
new claimsmade between parties to existing proceedings after the expiry of the
limitationperiod relevant to the new claim should be permitted where (1) the
new claimarises out of the conduct, transaction or events on which a claim in
theexisting proceedings is based; and (2) the existing proceedings are
commencedwithin the relevant limitation period: para 5.11 and draft Bill,
clause 25(2).The Law Commission recommended that there should be no reform in
relation tothe addition of new claims to existing proceedings where the new
claim involvedthe addition or substitution of new parties: para 5.19 and draft
Bill, clause25(3). The draft Bill contained among the conditions for amendment
to add orsubstitute new parties, that "(c) the addition or substitution
isnecessary for the determination of a … civil claim previously made in
theproceedings ('the existing claim'), and (d) the existing claim was not
madeafter the end of any applicable limitation period" In November 2009the
Government announced that it would not be introducing legislation toimplement
the Law Commission's proposals.
Effect of the Limitation Act 1980 and the CPR
38. The effect of the provisions, so far as relevant on thisappeal, in the
Limitation Act 1980 and the CPR can be summarised in this way:(1) A new claim
means a claiminvolving either (a) the addition or substitution of a new cause
of action; or(b) the addition or substitution of a new party: section 35(2).(2)
Any new claim made in thecourse of an action is deemed to have been commenced
on the same date as theoriginal action: section 35(1).(3) No such new claim may
bemade after the expiry of any applicable limitation period, except as
providedby rules of court: section 35(3).
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(4) Rules of court mayprovide for allowing a new claim, but only (a) in the
case of a claim involvinga new cause of action, if the new cause of action
arises out of the same factsor substantially the same facts as are already in
issue on any claim previouslymade in the original action; and (b) in the case
of a claim involving a newparty, if the addition or substitution of the new
party is necessary for thedetermination of the original action (i.e. any claim
made in the originalaction cannot be maintained by an existing party unless the
new party is joinedas claimant or defendant): section 35(4), (5), (6). The
relevant rules of courtare in CPR 17.4 and 19.5.(5) CPR 17.4(2) has theeffect
that a new claim may be added by amendment but only if the new claimarises out
of the same facts or substantially the same facts as the originalclaim.(6) CPR
19.5(2), (3) have theeffect (among others) that a new party may be added only
if the limitationperiod was current when the proceedings were started, and the
addition of thatparty is necessary in the sense that the claim cannot properly
be carried on bythe original party unless the new party is added.(7) Rules of
court may allowa party to claim relief in a new capacity: section 35(7). The
relevant rule isCPR 17.4(4), by which the court may allow an amendment to alter
the capacity inwhich a party claims if the new capacity is one which that party
had when theproceedings started, or has since acquired.39. The original claim
for the purposesof these proceedings was the personal claim by Mark Roberts.
The relevantlimitation period for his claim was current when he started his
proceedings in2002. Mr Sainter's claim as administrator is statute-barred. Mr
Sainter couldnot apply to be joined as a claimant because his joinder is
not"necessary" for the purposes of section 35(6)(b) as put into effectby CPR
19.5(3)(b). That is because his joinder is not necessary for thepurposes of the
original action, namely Mark Roberts' personal claim.
40. But an amendment to treat Mark Roberts' claim as arepresentative claim
rather than a personal claim would be an amendment toalter the capacity in
which he claims: Haqv Singh [2001] EWCA Civ 957, [2001] 1 WLR 1594 , at
[19],per Arden LJ. CPR 17.4(4) permits such a change to be made if the new
capacityis one which he had when the proceedings started or has since acquired.
MarkRoberts has throughout had the capacity of beneficiary. It is not necessary
todecide whether the representative capacity is one which he has had in theory
atall times, since there is no doubt that the court has power to allow the
amendmentto alter the capacity in which he sues.
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41. The representative claim is a claim involving a newcause of action, since
the capacity in which Mark Roberts makes the claim is anessential part of the
claim: Oates vConsolidated Capital Services Pty Ltd [2009] NSWCA 183 , at
[105]. The court has power to allow theamendment because the new representative
claim arises out of the same facts orsubstantially the same facts as the
existing claim: CPR 17.4(2). Consequentlyit is not necessary to burden this
discussion with a sterile analysis of thelearning on what constitutes a cause
of action. It is sufficient to quote whatRobert Walker LJ said in Smith
vHenniker-Major & Co (A firm) [2003]Ch 182 (CA) at [96]. He referred tothe
classic definitions by Brett J in Cookev Gill (1873) LR 8 CP 107 ,116 as
"every fact which is material to be proved to entitle the plaintiffto succeed",
and by Diplock LJ in Letangv Cooper [1965] 1 QB 232 ,242-243 as "simply a
factual situation the existence of which entitles oneperson to obtain from the
court a remedy against another person," and wenton:"in identifying a new cause
of action the bareminimum of essential facts abstracted from the original
pleading is to becompared with the minimum as it would be constituted under the
amendedpleading. But in applying section 35(5)(a) the court is concerned on a
muchless abstract level with all the evidence likely to be adduced at trial:
see Goode v Martin [2002] 1 WLR 1828 , 1838, approvingHobhouse LJ's
observation in LloydsBank plc v Rogers The Times, 24March 1997;Court of
Appeal (Civil Division) Transcript No 1904 of 1996: 'Thepolicy of the section
is that, if factual issues are in any event going to belitigated between the
parties, the parties should be able to rely upon anycause of action which
substantially arises from those facts'."Joinder of the administrator42. The
next question is whether Mark Roberts needs to jointhe administrator as a
defendant. If he does need to join the administrator,there would be a new claim
for the purposes of the Limitation Act 1980 because"a new claim means any claim
involving the addition of a newparty" (section 35(2)(b)). Rules of court may
allow such an addition afterthe limitation period for the original claim has
expired, and the condition inCPR 19.5(2)(a) is fulfilled, namely that the
relevant limitation period wascurrent when the proceedings were started (i.e.
by Mark Roberts in his personalcapacity).
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43. But if the administrator has to be added at the sametime as Mark Roberts
changes the capacity in which he sues, Mark Roberts mustsatisfy the
requirements of CPR 19.5(2)(b) and CPR 19.5(3)(b) (giving effect tosection
35(5)(b) and 6(b)), namely that the addition of the administrator isnecessary
in the sense that "the claim cannot properly be carried on by the original
party unless the new party is added.." But if it werenecessary to join the
administrator in order for the representative action tobe carried on, Mark
Roberts would not be able to satisfy those requirementsbecause he would not be
able to show that the original claim could not properlybe carried on by Mark
Roberts in his personal capacity against the solicitorsunless the administrator
were added as a party. That is because there is nopossible basis for any
suggestion that the administrator would be a necessaryor proper party to the
personal claim.
44. Consequently, the only way in which the action couldproceed would be (a) if
the joinder of the administrator were not necessary atall; or (b) if it were
not necessary at the time Mark Roberts changes thecapacity in which he sues,
but could be done at a later stage. The latter pointarises because it is
suggested on behalf of Mark Roberts that the combinedeffect of section
35(1)(b), section 35(6)(b) and CPR 19.5(3)(b) is that (a) thechange in Mark
Roberts' capacity is deemed to take effect as at the date of theoriginal
proceedings; (b) the joinder can be effected after the change in MarkRoberts'
capacity, and would then be "necessary" for the continuanceof what would then
be regarded as the original claim, namely the claim in arepresentative capacity.
The trustee as a necessary party and the "specialcircumstances" rule
45. To avoid repetition, it is convenient to treat togethertwo aspects of the
leading authorities. One is the requirement for specialcircumstances as a
condition of beneficiaries being entitled to sue on behalfof the estate. The
second is the light they throw on whether the administratoris a necessary party
to a claim by a beneficiary to recover property from athird party.
46. The cases go back to the eighteenth century, and many ofthem were reviewed
in Hayim vCitibank NA [1987] AC 730 (PC). The special circumstances which
wereidentified in the earliest authorities as justifying a beneficiary's
actionwere fraud on the part of the trustee, or collusion between the trustee
and thethird party, or the insolvency of the trustee, but it has always been
clearthat these are merely examples of special circumstances, and that
theunderlying question is whether the circumstances are sufficiently special
tomake it just for the beneficiary to have the remedy: In re Field, decd
[1971]1 WLR 555 , 560-561, per Goff J; cf. Barker v Birch (1847) 1De G & Sm
376 , 63 ER 1112; Daniell's Chancery Practice, 7th ed 1901, p176.
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