Practice

It was established law that the addition or substitution of parties had to be necessary to cure some defect and to permit the maintenance of the existing action. In many instances, when well into the life of an action, a claimant might wish to pursue another party as ultimate recovery post judgment might be more likely than with an existing defendant. However, that could not, of itself, merit substitution outside any relevant limitation period which would otherwise protect the party that was desired to be added. It would fundamentally attach the ability of any party to rely on a limitation defence. While the powers under s 35 of the Limitation Act 1980 and CPR 19.5 did permit the addition or substitution of a party after the relevant limitation period had expired, they were properly restrictive as to the circumstances when it was permissible. Further, the potential for injustice had to be borne in mind when interpreting s 35 of the 1980 Act and CPR 19.5.