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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Piggott v Aulton  EWCA Civ 24 (29 January 2003)
Cite as:  EWCA Civ 24
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY
COURT (His Honour Judge Durman)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LADY JUSTICE ARDEN
| Stephanie Piggott||Claimant/ Respondent|
|- and -|
|David Aulton (Deceased)||Defendant/Appellant|
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Simon Beard (instructed by DLA) for the Respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lady Justice Arden :
"33(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which-
a) the provisions of section 11 [or 11A] or 12 of this Act prejudice the plaintiff or any person whom he represents; and
b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specific cause of action to which the action relates."
"My Lords, in my opinion, once a plaintiff has started an action (the first action) within the primary limitation period it is only in the most exceptional circumstances that he will be able to bring himself within section 2D [now section 33 of the 1980 Act] in respect of a second action brought to enforce the same cause of action. If the first action is still in existence, as it was in the instant case when the matter was brought before the master and the judge, cadit quaestio; he has not been prevented from starting his action by section 2A or section 2B [now sections 11 and 12 of the 1980 Act] or at all, so the provisions of those sections cannot have caused him any prejudice. Does it make any difference that the first action is no longer in existence at the time of the application under section 2D either because it has been struck out for want of prosecution or because it has been discontinued by the plaintiff of his own volition? In my view, it does not. These are self-inflicted wounds. The provisions of section 2A caused him no prejudice at all; he was able to start his actions. The only cause of the prejudice to him in the case of dismissal for want of prosecution is dilatoriness which took place after the action was started whether on his own part or on the part of his legal advisors. In the case of discontinuance the only cause of the prejudice is his own act." (emphasis in the original)
"(2) Where a defendant against whom a claim could have been brought has died and
a) a grant of probate or administration has been made, the claim must be brought against the persons who are the personal representatives of the deceased;
b) a grant of probate or administration has not been made-
i) the claim must be brought against 'the estate of' the deceased; and
ii) the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.
(3) A claim shall be treated having been brought against 'the estate' of the deceased in accordance with paragraph (2)(b)(i) where-
a) the claim is brought against the 'personal representatives' of the deceased but a grant of probate or administration has not been made; or
b) the person against whom the claim was brought was dead when the claim was started "
"It seems to me that the defendant in both actions was the same, namely the estate of the deceased. The heading of both actions is identical and the personal representatives are named in each one."
"I accordingly understand the Walkley principle to exclude from section 33 only actions which involve the same defendant and the same cause of action as was the subject of earlier, timeous proceedings. It follows that strictly it does not catch the plaintiff's second action here. By the same token that the Walkley principle itself rests upon a narrow and somewhat technical construction of section 33, so too it is in my judgment possible to escape it on just such grounds."
Lord Justice Sedley
Lord Justice Simon Brown:
"This [line of authority] establishes that where a first writ issued within the primary limitation period is itself ineffective (although not a nullity) through having been issued variously without consent against a company in liquidation (as in the McEvoy case [above]), or through being issued against an unincoporated association in its own name (White -v- Glass, The Times, 18 February 1989: Court of Appeal (Civil Division) Transcript No 140 of 1989), or through being issued against a company which had been struck off the register (In re Workvale Ltd  1 WLR 416), the Walkley principle does not apply to defeat in limine a second action , notwithstanding that in each of those cases the defect was recognised to be curable: in the McEvoy case [above] by the late grant of leave; in White -v- Glass [above] by substituting the names of the representative members; and in In re Workvale Ltd [above] by having the company restored to the register."