Adam v Ali

Adam v Ali

The Walkley principle only precludes section 33 discretion where the first action was commenced within the primary limitation period; as the first action here was issued out of time, the court retains discretion under section 33. The judge below misdirected himself regarding the scope of his discretion and the balance of prejudice. On the facts, it is equitable to allow the action to proceed out of time.

Parties
Appellant: Jacqueline Adam; Respondent: Rasal Ali
Jurisdiction
England and Wales
Judgment Date
21 February 2006
Procedural Posture
Civil Appeal / Appeal From High Court (queen’s Bench Division) to Court of Appeal
Outcome
appeal allowed
Legal Topics
Limitation of Actions, Discretion to Disapply Limitation Period, Solicitor Negligence, Section 33 Limitation Act 1980
Civil Procedure Personal Injury Limitation of Actions Discretion to Disapply Limitation Period Solicitor Negligence Section 33 Limitation Act 1980

Case Brief

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Parties

Jacqueline Adam

Appellant

Rasal Ali

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court (queen’s Bench Division) to Court of Appeal

Legal Issues

  1. 1 Does the court have discretion under section 33 of the Limitation Act 1980 to disapply the limitation period where the first action was commenced outside the primary limitation period?
  2. 2 Does the principle in Walkley v Precision Forgings Ltd preclude the exercise of discretion under section 33 in these circumstances?
  3. 3 Should the court exercise its discretion to allow the action to proceed out of time?

Ratio Decidendi

The Walkley principle only precludes section 33 discretion where the first action was commenced within the primary limitation period; as the first action here was issued out of time, the court retains discretion under section 33. The judge below misdirected himself regarding the scope of his discretion and the balance of prejudice. On the facts, it is equitable to allow the action to proceed out of time.

Court Disposition

appeal allowed

Orders

  • The appeal is allowed.
  • The claimant is permitted to proceed with her action out of time under section 33 of the Limitation Act 1980.