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Report No. 89

II Position In England

30.11. Developments in England.- Developments in certain other countries are also of interest. In England, as long back as 1887, Lord Esher refused1 to a plaintiff leave to amend to add to her action for slander (after the expiry of the period limitation), claims for assault and false imprisonment. But, while doing so, he made certain general observations which were, until recently considered almost an immutable guide line in practic.-

"We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued, in respect thereof at the date of the amendment, would be barred by the statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so."

Even though Lord Esher (in the last sentence of the above passage) had made reservations for "every peculiar circumstances", it has been generally assumed that whenever an amendment sought would change the cause of action after the expiration of the period of limitation, allowing the same could cause injustice to the defendant which cannot be compensated for by cost.

1. Weldon v. Neal, (1887) 19 QBD 394 (395): 56 LJQB 621 (CA).

30.12. Rules of the Supreme Court in England.- This position practically, held the field in the England till the coming in force of the Rules of the Supreme Court, 1966. Order 20, rule 4 of these Rules provide as unde.-

"(1) Subject to Order 18, rules 6, 7 and 8 and the following provisions of this rule, the court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleadings, on such terms as to costs or otherwise as may be just and in such manner (if any), as it may direct.

(2) Where an application to the court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

(3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.

(4) A amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counter-claim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counter claim, as the case may be, the might have sued.

(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts, or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment"

30.13. Doubts expressed as to vires.- Doubts were expressed by a writer1 that such a sweeping provision,2 which in a sense, qualifies the limitation Acts might be argued to be ultra vires the statutory authority for making the rules of the Supreme Court. However, the point has not come up for judicial decision.

1. 1. Michael, J. Goodman Problems of Limitation, 119 New p 814.

2. Virtually identical provisions appear in the rules of the Federal Court of Canada

[General Orders and Rules GORS) and in the Noya Scotia Civil Procedure Rules].

30.14. Lord Denning's view.- The rule came to be considered by Lord Denning in one case1 wherein he boldly stated that the above rule has "specifically over-ruled a series of cases which worked injustice. Since the new rule, I think we should discard the strict rule practice in Weldon v. Neal. The court should allow an amendment when ever it is just to do, even though it may deprive the defendant of a defence under the statute of limitations."

1. Chatworth Investments Ltd. v. Cussins (Contractors) Ltd., (1969) 1 All ER 143.

30.15. These observations were not approved in a later case,1 but when the question came up again2 before Lord Denning, he reiterated his earlier statement.

1. Braniff v. Holland and Hennad & Cubitts (Southern) Ltd., (1969) 3 AIR 959.

2. Starman v. E.W.& W.I. Moore Ltd., (1970) 1 All ER 581.

30.16. Address by Bowen, L.J.- About a hundred years ago, Bowen, L.J., while addressing American Judges and lawyers emphatically gave his assurance1. "It may be asserted, without fear of contradiction that it is not possible in the year 1887 for an honest litigant in Her Majesty's Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation."

By and large, this proposition seems to be true of, the amendment of pleadings also by provisions giving the court a general discretion to allow an amendment notwithstanding that it raises a barred cause of action, whenever justice so requires."2

The author, at the end of above article, has prepared a chart giving a list of about 20 cases showing the nature of the original action and nature of the amendments sought and whether the amendment was allowed or refused. The chart graphically brings home the point that the law on the subjects is in a fluid state and firm guidelines should be incorporated in the statutory rules to enable the courts to exercise their discretion in such matters predicated upon certain principles.

1. Address by Bowen, L.J., quoted in Potin v. Wood, (1962) 1 QB 609 (CA) (Pearce, L.J.).

2. Per Glass J.A. in Megee v. Yeomans, (1977) 1 NSWLR 273 (CA).

The Limitation Act, 1963 Back

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