The Supreme Court handed down judgment in the case of Roberts v Gill and Co Solicitors and Others [2010] UKSC 22 on the 19th May 2010. The case concerned a claim of negligence, and considered whether the proceedings could be amended to claim on behalf of the estate in accordance with the time bars in the Limitation Act 1980 c. 58 (the Act) and relevant rules of court.

The appellant pursued a case of negligence against two firms of solicitors who it was alleged allowed a fellow beneficiary of a will to dispose of land in 1997 which should have been part of the residuary estate. The relevant beneficiary had been administrator of the estate until his replacement in 2000. Clause seven of the will provided for division of land upon payment of security or indemnity by the administrator beneficiary within a specified period. Clause eight stated that if the conditions were not met, the properties would fall into the residuary estate. The appellant had submitted a claim that the estate had been administered on the false grounds of compliance with clause seven.

Though the appellant framed his claim in a personal capacity, the duty of care owed by the solicitors’ was agreed by all parties to apply only to the estate of the deceased. The appellant would need to pursue a derivative action, suing as representative of the estate.

S.35 of the Act provides that no new action may be commenced following the expiry of a limitation period save where provided by the rules of court. The relevant rules of court, CPR 17.4 and 19.5 provide that a new claim be added by amendment if the claim arises from at least substantially the same facts as the original claim and a new defendant could be added only where necessary. Hayim v Citibank NA [1987] AC 730 established a derivative representative action can only be brought where “special circumstances” exist.

Before the High Court, the application for amendment of capacity was refused on the grounds that no special circumstances existed. Before the Court of Appeal, the appeal was dismissed; whilst finding that special circumstances did exist, the amendment application was dismissed on the ground that it was time-barred.

Before the Supreme Court, the issues arising concerned whether the administrator appointed in 2000 needed to be joined as a defendant in addition to amending to a derivative representative action in order for a claim to proceed. Following CPR 19.5, the court found that adding a party prior to altering the capacity of the claim would not be necessary for the determination of that claim. Subsequent to a change in capacity, the joinder would be necessary.

Agreeing with the reasoning of the Court of Appeal and reviewing the exceptional circumstances which existed in William Brandt's Sons and Co v Dunlop Rubber Co [1905] AC 454, the court found that the joinder must occur before an alteration to a derivative action and at the commencement of proceedings. Affirming the Court of Appeal judgment that the application for amendment was therefore time-barred by CPR 19.5, the court dismissed this ground of appeal.

Noting that the special circumstances question need not be decided as a consequence of the decision on the first ground, the court nonetheless determined that the judge had used his wide latitude to take account of all relevant circumstances. The decision of the lower court should not have been interfered with.

A minority of the court found that the rule preventing the joinder of a party before the amendment of a claim could be departed from where the interests of justice so required. Such a departure had not been justified in the case, and no special circumstances existed.

Dismissing the appeal, the court found that the application for amendment was time-barred.