LM-2021-000173 - [2025] EWHC 2645 (Comm)

HDI applies to be joined under CPR 19.2, which applies “where a party is to be added or substituted except where the case falls within rule 19.6 (special provisions about changing parties after the end of a relevant limitation period)” (CPR 19.2(1)).

MLS says that the application falls within CPR 19.6. CPR 19.6(1) provides that:

“This rule applies to a change of parties after the end of a period of limitation under –

(a)

the Limitation Act 1980;

(b)

the Foreign Limitation Periods Act 1984; or

(c)

any other enactment which allows such a change, or under which such a change is allowed.”

MLS says that this application is made after the end of a limitation period because the relevant claim is the claim for breaches of the Freestanding Tortious Duty (brought in these proceedings by it against Mr Hanison/Fortitude) and the limitation period for that claim has expired.

HDI says that the relevant claim as far as HDI is concerned is the potential claim by MLS (as a transferee pursuant to the Third Parties Rights Act of Mr Hanison’s rights) against HDI. Section 12 of the Third Parties Rights Act provides that:

“(4)

Where a person who has already established an insured’s liability to that person brings proceedings under the Act against the insurer, nothing in this Act is to be read as meaning –

(a)

That for the purposes of the law of limitation in England and Wales, that person’s cause of action against the insurer arose otherwise than at the time when that person established the liability of the insured …”.

As MLS’s claim against HDI would therefore arise only if and when MLS established Mr Hanison’s liability, the limitation period applicable to such a claim by MLS against HDI has not ended.

It seems to me that applying CPR 19.6 by reference to the limitation period for a claim for breaches of the Freestanding Tortious Duty, i.e. the claim already on foot between MLS and Mr Hanison/Fortitude, but as if it were being pursued by MLS against HDI, would fail to reflect the fact that HDI has an interest in these proceedings because of its (potential) liability as insurer of Mr Hanison/Fortitude and the potential claim which MLS has against HDI which, pursuant to s.12 of the Third Parties Rights Act, is not time-barred (and which remains a contingent claim unless and until the liability of Mr Hanison/Fortitude is established). Such an approach to CPR 19.6 would fail to reflect the fact that the joinder of HDI is not because of the existence of any current claim by MLS (the claimant) against HDI (the second defendant, if joined), but instead because of the potential claim HDI may face in due course.

The current claim in these proceedings (which will continue against Mr Hanison/Fortitude whether or not HDI is joined) is the claim by MLS against Mr Hanison/Fortitude and is not time-barred because it was started within the relevant limitation period. That is not a claim which can at present be advanced against HDI by MLS or which imposes liability on HDI to MLS (see above) and it therefore cannot be said to be time-barred as against HDI. HDI’s joinder as a second defendant to make submissions on an issue arising on that claim therefore does not involve “a change of parties after the end of a period of limitation under the Limitation Act 1980” for the purpose of CPR 19.6 because no limitation period relevant as between HDI and MLS, or relevant to the joinder of HDI to these proceedings, has come to an end.

This conclusion seems to me to be consistent with the further or alternative argument advanced by HDI that, because the addition of HDI as a party to the proceedings does not involve a new cause of action, CPR 19.6 does not apply in any event. HDI relies on the decision of the Court of Appeal in Yorkshire RHA v Fairclough Building Ltd [1996] 1 WLR 210, CA, per Millett LJ (as he then was) at 218F that s.35(2) Limitation Act 1980 does not include claims involving the addition or substitution of a new party but which do not involve a new cause of action. HDI submit that, consistent with the purpose of CPR 19.6 being to give effect to s.35 Limitation Act 1980, CPR 19.6 also does not apply where there is the addition of a new party but no new cause of action. I accept that submission which seems to me consistent with the terms of CPR 19.6(1) (“This rule applies to a change of parties after the end of a period of limitation under (a) the Limitation Act 1980 …”). Thus, because the addition of HDI will not involve a new claim (or new cause of action) in these proceedings, and the existing claim is not out of time, the application properly falls to be considered under CPR 19.2.