PIBULJ Articles

Adams v Ali: Walkley revisited

1. As the opening line of the Court of Appeal’s judgment puts it, “This appeal gives rise to another troublesome limitation point spawned by Walkley v Precision Forgings Limited [1979] 1 WLR 606” .  Ms Adams was injured in a road traffic accident on 5th July 1999.  Her solicitor issued the claim form on 12th July 2002, a week late.  He then didn’t serve the claim form at all.  It appears that the solicitor then continued as if the case was moving towards trial, to the extent that he asked the claimant for dates to avoid for the trial.  On 15th August 2003 a District Judge struck the claim out (it appears of his own motion). 
2. The same solicitor then issued a second claim in the High Court on 20th August 2003.  The issue arose as to whether the court had discretion to extend limitation under s33 Limitation Act 1980 or whether the principle in Walkley prevented the exercise of that discretion.

The decision in Walkley

1. Mr Walkley suffered from Raynauds disease as a result of his employment and issued a writ within the limitation period in 1971. However, following advice from counsel, his union refused to support his claim further and the writ was never served. In 1977 a further writ was issued, outside the limitation period. The defendants applied to strike out the second writ. The claimant asked that the limitation period be disapplied in accordance with the equivalent provision to ss 33, s2D of the Limitation Act 1939. The House of Lords declined to do so.
2. Section 33 provides:

“(1)        If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree which -

1. the provisions of section 11 … of this Act prejudice the Claimant…

the court may direct that those provisions shall not apply”

1. The reason the House of Lords declined apply section s2D was that Mr Walkley was prejudiced not by the limitation period, but by the fact that his original solicitors had failed to issue the writ.  He had been able to, and indeed had brought an action within the three years, and so section 11 had not caused him to suffer prejudice at that point.  It was subsequent events (the withdrawal of funding etc) which had meant he was unable to bring his claim.
2. The principle is therefore that the court does not have a discretion under section 33 in a second action where the Claimant has previously issued proceedings within 3 years against the same defendant in respect of the same action. 

The decision in Adams

1. The Defendant’s argument was that section 11 does not require a claimant to bring an action within a prescribed period of time and then extinguish the Claimant’s right to damages but simply provides a Defendant with a defence he may or may not decide to take.  It was said that as the claim form was only issued 6 days out of time, the Defendant would not have asserted the time bar and, unless the Defendant takes the point the first claim is not prejudiced by section 11 and Walkley should apply.
2. The Court of Appeal rejected that argument.  The provisions of section 11 prejudiced the Claimant on the original claim as they did the second.  A hypothetical enquiry into whether or not the Defendant would have refrained from asserting the time bar would introduce wholly undesirable uncertainty. 
3. It was held that the characteristic feature of Walkley was that the first action between the same parties was brought within the primary limitation period.  That feature was absent in Adamsand therefore the court found that Walkley did not apply and went on to consider its discretion under section 33.

A licence for negligence?

1. Adamsfollows a line of cases subsequent to Walkely where Walkely has been confined narrowly to its own facts, and where it has been acknowledged as an anomaly.  However, the practical effect of those cases is the arguably unattractive position that the more negligent the legal advisors, the more likely it is that the second action will be allowed.
2. For example, the first instance Judge in Adamsdescribed the Claimant’s argument (quite correctly) as follows:

“Because we were negligent, in effect, in not issuing within the primary limitation period therefore Walkley does not apply and therefore you (the Judge) retain your discretion to disapply the limitation period under section 33).”

1. Walkley has also been distinguished when the first action has been ineffective as it involved suing an unincorporated association in the name of the association rather than by the names of its members , suing a company in liquidation , suing the estate of a dead person before a representative had been appointed , and where the party in the second action was a party who could (and should) have been sued on the first occasion, but wasn’t .
2. In all of those cases the court went on to exercise the discretion under section 33 to disapply section 11.  They also did so in Adams, where the unfettered nature of the section 33 discretion and the essential test being one of whether it is equitable to allow the action to proceed was emphasised.  Perhaps the court would be less inclined to keep Walkley to its narrow confines in cases where equity suggests the section 33 discretion should not be extended to a claimant. 

Lisa Sullivan
24th April 2006
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