PI Brief Update

Too Late to the Party? Not necessarily. Some clarity on adding parties in PI claims after expiry of limitation - Michael Brooks Reid, Temple Garden Chambers

26/09/25. Michael Brooks Reid comments on the recent judgment in the case of Doroudvash v Zurich Insurance Plc [2025] EWCC 10.

The Facts

The claimant police officer was injured in a road traffic accident whilst on duty. He brought a personal injury claim directly against Zurich Insurance plc under the European regulations. Zurich initially admitted liability but withdrew that admission with the court’s permission after the expiry of 3-year limitation. The Claimant sought to add the Commissioner of the Police for the Metropolis as a defendant.

The Law

The CPR draws a distinction between applications to add or substitute a party before and after limitation has expired.

Under r.19.2(2), the court may add a party before the expiry of limitation if it is desirable to do so — a relatively low threshold aimed at ensuring all relevant parties are before the court to resolve the dispute efficiently.

After limitation has expired, however, a party may generally be added only if the addition is necessary: r.19.6(2).

However, in personal injury claims, there is another avenue under r.19.6(4), which provides that the court may add a party where it directs that (a) the special personal injury limitation provisions in sections 11 or 12 of Limitation Act 1980 (“the 1980 Act”) shall not apply; or, (b) that issue of whether they apply should be left to trial.

The case law had left some uncertainty. In Pawley v Whitecross Dental Care Ltd [2021] EWCA Civ 1827, Stuart-Smith LJ raised but did not resolve the question of whether, under an application under r.19.6(4), the necessity test still applied.

The Decision

HHJ Holmes held that necessity did not govern applications under r.19.6(4). He reasoned that Parliament had deliberately provided for a different approach in personal injury claims, reflecting the availability of the discretion to disapply limitation in PI claims under s.33 of the 1980 Act. The Judge considered that r. 19.6(4) was clearly drafted with the s.33 power in mind. To read a necessity test into r.19.6(4) would undermine that structure and create unnecessary duplication, since claimants whose applications under r. 19.6(4) failed would issue fresh proceedings and then invite the court to exercise its s.33 power.

Instead, the correct test under r.19.6(4) is one of desirability and fairness, taking into account the overriding objective. Where a s.33 application was before the court at the same time, the court might determine the issue of limitation finally and therefore allow the addition under r. 19.6(4)(a).

Where such an application is not before the court, and the court is not in a position to consider the merits of a s.33 application, it should go on to consider whether a new party should be added to allow the limitation issue to be litigated. The strength or otherwise of the potential s.33 application should be one of the factors taken into account in determining the desirability of allowing the addition.

In this case, it was desirable to add the Commissioner: he had admitted liability in other proceedings, and it would be unjust for limitation to prevent the claim being pursued against him. The limitation issue itself was left to trial, should the Commissioner raise it.

Comment

This case provides some welcome clarity to the test under r. 19.6(4), which the author has found problematically lacking when dealing with applications under that rule.

However, some uncertainty remains. A usual application under s.33 of the 1980 Act is made on notice to the Defendant, but what about where the merits of a potential s.33 application are being considered under r. 19.6(4), as the Judge suggested they should be? The answer may well be that it is implicit in HHJ Holmes’s judgment, that where the proposed defendant is not on notice of the application under r. 19.6(4), it would only be appropriate to add a party under r. 19.6(4)(b) and direct that the limitation issue be left to trial (or dealt with as a preliminary trial issue). Whereas, it would only be appropriate to add a party under r. 19.6(4)(a) having had the opportunity to fully consider the merits of a s.33 application made alongside, on notice to the proposed new party.

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