The claimant (C) commenced libel proceedings against D1 and D2 in 2002. The proceedings had never been served upon D1 and the proceedings against D2 were discontinued as C intended to issue proceedings against D3. C then applied to join D3, asking the court to disallow any limitation period pursuant to section 32(a) Limitation Act 1980 because he had only become aware a couple of weeks prior to his application that D3 was the author of the allegedly libellous publication.
The Master ruled that there was a triable issue as to whether C had known until very shortly before the hearing on 12 July 2005 that D3 was the author. He permitted the joinder of D3, leaving it to D3 to plead a limitation defence, if so advised.
D3 subsequently failed to defend the claim and C obtained judgment in default, with damages to be assessed.
Some 7 months later, D3 applied to set aside the Master’s order. The grounds advanced before the judge were that (1) the limitation period for the publication complained of had expired and the application was misconceived as CPR 19.5 did not apply and (2) alleged ignorance on the part of C as to D3’s role in the publication could not, as a matter of law, affect the date on which the limitation period expired.
Tugendhat J held that there were two bases upon which the Master’s order was wrong, made without jurisdiction and should therefore be revoked:
(1) The application to join D3, as opposed to starting a new action against him, was misconceived as CPR 19.5 did not apply. Limitation had expired in or about March 2003; there was no appropriate action in existence and it was not necessary for D3 to be a party to it;
(2) The Master was mistaken in thinking that his order would permit the limitation issue to be raised by D3 in the action that he permitted to be pursued. If a party is joined he is treated as having been a party from the beginning of the original action, that being the force of section 35.1(b) of the Limitation Act 1980. As such he therefore lost his limitation defence.
The proper practice, in a case where a new defendant might have a limitation defence, was for a claimant to seek permission under section 32A Limitation Act 1980 to issue proceedings prior to any commencement of fresh proceedings.
C appealed against the decision of Tugendhat J to set aside the order allowing the joinder of D3.