Burton & Anor v Bowdery & Ors [2017] EWHC 208 (Ch) (16 February 2017)

Burton & Anor v Bowdery & Ors [2017] EWHC 208 (Ch) (16 February 2017)

The claim against the third defendant constitutes 'third party proceedings' under s.35(1)(a) of the Limitation Act 1980, so the doctrine of relation back does not apply. The third defendant has a reasonably arguable limitation defence, but joinder does not prejudice him because he would be in the same position as if a fresh claim were brought. There is no reason in principle or policy to refuse joinder, and the set aside application is dismissed.

Citation
[2017] EWHC 208 (Ch)
Parties
Claimant: Paul Derek Burton; Claimant: Caroline Elisabeth Burton; Defendant: Jonathan Rae Bowdery; Defendant: Lisa Lynn Carter-Bowdery; Defendant: Christopher Attwood Messenger (formerly trading as Messenger & Company)
Jurisdiction
England and Wales
Judgment Date
16 February 2017
Procedural Posture
Civil Chancery Division / Interlocutory Application (joinder and Set Aside)
Outcome
Set aside application and jurisdiction application dismissed; joinder of third defendant stands.
Legal Topics
Joinder of Parties, Limitation Periods, Warranty of Authority, Conveyancing, Deliberate Concealment
Civil Procedure Limitation of Actions Property Law Joinder of Parties Limitation Periods Warranty of Authority Conveyancing Deliberate Concealment

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Parties

Paul Derek Burton

Claimant

Caroline Elisabeth Burton

Claimant

Jonathan Rae Bowdery

Defendant

Lisa Lynn Carter-Bowdery

Defendant

Christopher Attwood Messenger (formerly trading as Messenger & Company)

Defendant

Procedural Posture

Civil Chancery Division / Interlocutory Application (joinder and Set Aside)

Legal Issues

  1. 1 Whether the joinder of the third defendant should be set aside
  2. 2 Whether the claim against the third defendant is time-barred under the Limitation Act 1980
  3. 3 Whether the claim constitutes 'third party proceedings' under s.35(1)(a) of the Limitation Act 1980 or 'other new claims' under s.35(1)(b)

Ratio Decidendi

The claim against the third defendant constitutes 'third party proceedings' under s.35(1)(a) of the Limitation Act 1980, so the doctrine of relation back does not apply. The third defendant has a reasonably arguable limitation defence, but joinder does not prejudice him because he would be in the same position as if a fresh claim were brought. There is no reason in principle or policy to refuse joinder, and the set aside application is dismissed.

Court Disposition

Set aside application and jurisdiction application dismissed; joinder of third defendant stands.

Orders

  • Set aside application dismissed
  • Application to declare lack of jurisdiction and set aside service dismissed