Burton & Anor v Bowdery & Ors

Burton & Anor v Bowdery & Ors

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. Where the limitation position is unclear and no prejudice arises from joinder, the court should permit joinder rather than require separate proceedings, as this aligns with the overriding objective and does not deprive the defendant of an arguable limitation defence.

Parties
Claimant: Paul Derek Burton; Claimant: Caroline Elisabeth Burton; Defendant: Jonathan Rae Bowdery; Defendant: Lisa Lynn Carter-Bowdery; Defendant: Christopher Attwood Messenger
Jurisdiction
England and Wales
Judgment Date
16 February 2017
Procedural Posture
Civil / Interlocutory Applications (joinder and Set Aside)
Outcome
applications dismissed
Legal Topics
Joinder of Parties, Limitation of Actions, Warranty of Authority, Deliberate Concealment
Civil Procedure Contract Law Joinder of Parties Limitation of Actions Warranty of Authority Deliberate Concealment

Case Brief

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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

Defendant

Procedural Posture

Civil / Interlocutory Applications (joinder and Set Aside)

Legal Issues

  1. 1 Whether the joinder of the third defendant should be set aside
  2. 2 Whether the court has jurisdiction to try the claim against the third defendant
  3. 3 Whether the limitation period for the claim against the third defendant has expired

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. Where the limitation position is unclear and no prejudice arises from joinder, the court should permit joinder rather than require separate proceedings, as this aligns with the overriding objective and does not deprive the defendant of an arguable limitation defence.

Court Disposition

applications dismissed

Orders

  • The set aside application is dismissed.
  • The applications in paragraphs (1) and (2) of D3’s application dated 11 October 2016 are dismissed.