| PRACTICE — Parties — Joinder — Beneficiary of estate bringing proceedings in personal capacity within limitation period — Beneficiary applying to amend proceedings in order to continue in both personal capacity and as a derivative action on behalf of estate — Whether application in nature of change of capacity or addition of new party — Whether personal representative required to be joined as party to derivative claim — CPR r 19.5
Roberts v Gill & Co and another [2008] EWCA Civ 803; [2008] WLR (D) 239
CA: Pill, Arden LJJ and Patten J: 15 July 2008
Where a beneficiary of an estate brought a derivative claim, the personal representative had to be joined as a party, since the situation was indistinguishable from that of a derivative action brought by a member of a company or corporate body, in which the company had to be joined as a defendant under CPR r 19.3.
The Court of Appeal so held when dismissing the appeal of the claimant, Mark Howland Roberts, against the decision of Paul Morgan QC sitting as a deputy High Court judge [2007] EWHC 3461 (Ch) dismissing the claimant’s application to amend his proceedings for damages for professional negligence against the defendants, two firms of solicitors, Gill & Co and Whitehead Vizard, so that he could continue those proceedings both in a personal capacity and as a derivative action on behalf of the estate of his late grandmother, Alice Margot Roberts, of which he was a residuary beneficiary.
The claimant commenced the proceedings in a personal capacity within the limitation period but any fresh proceedings brought by the proposed amendment would be outside that period. The trial judge held that a beneficiary could sue on behalf of an estate “in special circumstances” but went on to reject the two circumstances relied on by the claimant.
ARDEN LJ said that the personal representative had to be joined to a derivative claim brought by the beneficiary of an estate, otherwise the parties would be exposed to the risk of multiplicity of actions. Accordingly, if the instant application were one to add the personal representative as a party to the proceedings, as was required, it would clearly be an application to add a party outside the limitation period, to which CPR r 19.5 applied. R 19.5(2)(b) required that “the addition or substitution is necessary” which would be satisfied by, inter alia, showing that the claim could not be properly carried on against the defendants unless the administrator was added. The claimant was unable to satisfy that requirement since his existing claim was personal and the addition of the administrator was not necessary for that purpose. It would be contrary to principle for the court to grant permission to amend the claim merely to reflect a change of capacity as that would not enable the claimant to proceed to judgment. Permission to amend would not be permitted if the amendment would not enable the party seeking to amend to succeed on the claim he made because the relevant parties had not been joined. The appeal would, accordingly, be dismissed.
PATTEN J agreed and PILL LJ gave a judgment concurring in the result.
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