B. C. Airlines Limited (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Kerr J.—Vancouver, October
25, 1971; Ottawa, January 25, 1972.
Practice—Parties—Pleadings—Amendment—Application
to add new defendants after action statute-barred—Joinder
refused—Rules 424 to 427, 1716.
On September 28, 1970, plaintiff commenced an action
for damages against the Crown in consequence of the crash
of an aircraft near Vancouver International Airport on April
22, 1968. The statement of claim alleged negligence in the
performance of their duties by servants of the Crown, viz,
the two air traffic controllers who were on duty at the time
of the crash. On October 18, 1971, plaintiff applied for
leave to amend the statement of claim by adding the two air
traffic controllers as defendants in order that they might be
examined for discovery but no damages were sought from
them. Defendant opposed the motion on the ground that the
right of action against the controllers was barred by the
applicable statute of limitations one year after the crash.
Held, the application to add the controllers as defendants
should be dismissed. The interests of justice do not require
the controllers to be added as defendants. Federal Court
Rule 465 provides adequately for discovery. Proof of the
circumstances attending the crash and its cause may be
made without adding the controllers as defendants.
APPLICATION.
R. H. Guile for plaintiff.
N. D. Mullins for defendant.
KERR J.—This concerns an application by the
plaintiff for leave to amend its statement of
claim (petition of right).
The defendant does not object to the allow
ance of certain of the proposed amendments,
but objects to the addition of two persons as
defendants. The issue, therefore, is whether
leave should be given to add them as
defendants.
The action arose out of the crash of a Piper
Aztec aircraft near the Vancouver International
Airport. The statement of claim alleges that the
crash was caused by negligence of servants of
the Crown in, inter alia, negligently directing
the flight path of the said aircraft into vortex
turbulence created by a preceding jet aircraft
that was making a practice landing approach, as
more fully set forth in the statement of claim.
The plaintiff claims to recover damages from
Her Majesty.
The persons sought to be added as defend
ants, Donald Wellis and Robert Levin Orcutt,
were air traffic controllers at the airport at that
time. I shall refer to them as the controllers.
There does not appear to be any dispute that
the basis of the action is alleged negligence and
breach of duty of servants of the Crown. As put
by counsel for the plaintiff in his argument:
... It is alleged in these proceedings that those persons
were either not performing their duties properly at the time
of the crash, or were performing those duties improperly, or
their acts on that date were negligence in se.
Counsel for the defendant stated as follows in
his argument:
Messrs. Orcutt and Wellis are air traffic controllers and at
the time the cause of action arose, were acting in pursuance
or execution, or intended execution of a public duty or, in
the alternative, in respect of any alleged neglect or default,
were acting in the execution of a public duty at the time of
the collision on April 22, 1968.
As to the public duty to be performed in air
traffic control, see the Aeronautics Act, R.S.C.
1952, c. 2, particularly sections 3, 4 and 20
[now R.S.C. 1970, c. A-3, sections 3, 6 and 20],
and the Air Regulations, P.C. 1960-1775,
SOR/61-10, made pursuant to that Act.
There also is no dispute that this Court has
jurisdiction to entertain the action, with or with
out the addition of the controllers as defend
ants. See sections 17(4) and 20 of the Federal
Court Act.
Counsel for the defendant takes the position
that leave to add the controllers as defendants,
applied for by notice of motion dated October
18, 1971, should be refused on the ground that
any right of action against them in respect of
the crash, which occurred on April 22, 1968, is
barred by section 11(2) of the Statute of Limita-
tions, R.S.B.C. 1960, c. 370, which reads as
follows:
11. (2) Where no time is specially limited for bringing
any action in the Act or law relating to the particular case,
no action shall be brought against any person for any act
done in pursuance or execution, or intended execution, of
any Act of the Legislature, or of any public duty or authori
ty, or in respect of any alleged neglect or default in the
execution of any such Act, duty or authority, unless the
action be commenced within twelve months next after the
act, neglect, or default complained of, or, in case of a
continuance of injury or damage, within twelve months next
after the ceasing thereof.
and is made applicable by virtue of section 38
of the Federal Court Act, as follows:
38. (1) Except as expressly provided by any other Act,
the laws relating to prescription and the limitation of actions
in force in any province between subject and subject apply
to any proceedings in the Court in respect of any cause of
action arising in such province, and a proceeding in the
Court in respect of a cause of action arising otherwise than
in a province shall be taken within and not after six years
after the cause of action arose.
(2) Except as expressly provided by any other Act, the
laws relating to prescription and the limitation of actions
referred to in subsection (1) apply to any proceedings
brought by or against the Crown.
In support of that objection counsel submit
ted that the application to add the controllers as
defendants should be refused, because, if it
were granted, they would be exposed unneces
sarily to litigation that could not possibly suc
ceed against them, the intention of the statute
would be defeated, and they would be denied
the protection afforded by it. He indicated that
if they are added as defendants at this time he
would plead the statute in defence.
Counsel for the plaintiff submitted that the
Court's Rules envision the broadest latitude in
its procedure and that the plaintiff simply seeks
to facilitate here the normal advancement of the
case by adding two persons who in his submis
sion should be before the Court. He referred to
Rules 2(2), 420(1) and 1716(1) and (2), which
are as follows:
2. (2) These Rules are intended to render effective the
substantive law and to ensure that it is carried out; and they
are to be so interpreted and applied as to facilitate rather
than to delay or to end prematurely the normal advance
ment of cases.
420. (1) The Court may, on such terms, if any, as seem
just, at any stage of an action, allow a party to amend his
pleadings, and all such amendments shall be made as may
be necessary for the purpose of determining the real ques
tion or questions in controversy between the parties.
1716. (1) No action shall be defeated by reason of the
misjoinder or nonjoinder of any party; and the Court may in
any action determine the issues or questions in dispute so
far as they affect the rights and interests of the persons who
are parties to the action.
(2) At any stage of an action the Court may, on such
terms as it thinks just and either of its own motion or on
application,
(a) order any person who has been improperly or
unnecessarily made a party or who has for any reason
ceased to be a proper or necessary party, to cease to be a
party, or
(b) order any person who ought to have been joined as a
party or whose presence before the Court is necessary to
ensure that all matters in dispute in the action may be
effectually and completely determined and adjudicated
upon, to be added as a party;
but no person shall be added as a plaintiff without his
consent signified in writing or in such other manner as the
Court may find to be adequate in the circumstances.
This Court also has Rules 424 to 427 in respect
of amending pleadings which I will refer to later
herein.
Counsel for the plaintiff cited the following
cases:
Tildesley v. Harper (1878-79) 10 Ch. D. 393, in
which Bramwell L. J. said at page 396:
... My practice has always been to give leave to amend
unless I have been satisfied that the party applying was
acting mâla fide, or that, by his blunder, he had done some
injury to his opponent which could not be compensated for
by costs or otherwise.
which quotation was recently applied by King J.
in Overholt v. Williams [1958] O.W.N. 422.
Hamelin v. Newton [1918] 1 W.W.R. 804, in
which Perdue J. A. said at page 806:
... The rule in question enables the Court or Judge to add
the name of a party whose presence before the Court may
be necessary in order to enable the Court effectually and
completely to adjudicate upon and settle all questions
involved in the action. Now the claim of McLeod is
involved in the action. It has been raised by the defendant
and is one of the questions to be contested. If the plaintiff
succeeds in the suit McLeod's claim will not necessarily be
disposed of, unless he has been made a party, and further
litigation may ensue between him and the defendant, or
between the plaintiff and McLeod.
Beisel and Beisel v. Negus [1948] 2 W.W.R.
492, in which Macfarlane J. said at page 493:
There is no doubt in my mind that the presence before the
court of the person whom it is desired to join as a party
defendant is necessary here in order to enable the court
effectually and completely to adjudicate upon and settle all
the questions involved in the cause.
None of those cases dealt with a question of
addition of parties as defendants after a statuto
ry limitation period for bringing an action
against them had expired.
Counsel for the defendant compared section
11(2) of the British Columbia Statute of Limita
tions with section 11 of the Public Authorities
Protection Act, R.S.O. 1970, c. 374, which
reads as follows:
11. No action, prosecution or other proceeding lies or
shall be instituted against any person for any act done in
pursuance or execution or intended execution of any statu
tory or other public duty or authority, or in respect of any
alleged neglect or default in the execution of any such duty
or authority, unless it is commenced within six months next
after the act, neglect or default complained of, or, in case of
continuance of injury or damage, within six months of the
ceasing thereof.
and he referred to the following cases:
Shynall v. Priestman and Smythson, Colangelo
v. Smythson, Smythson v. Priestman (1958) 11
D.L.R. 2nd 301, in which the said section of the
Ontario statute was pleaded in defence of a
claim by Smythson against a policeman, Priest-
man, and it was held that the claim was statute
barred because it was not commenced within
the six months as provided by the statute.
Schroeder J.A. said at page 317:
I have formed the view that s. 11 of the Public Authori
ties Protection Act constitutes an effective bar to the plain
tiff Smythson's right of action against the defendant Priest-
man and on that ground alone the action of the plaintiff
Smythson was rightly dismissed.
Gibson J.A. concurred with Schroeder J.A.
Laidlaw J.A. also concurred with the view
above quoted, although dissenting in other
respects.
Cloudfoam Ltd. v. Toronto Harbour Commis
sioners (1968) 69 D.L.R. 2nd 632, in which
Donnelly J. held that the Toronto Harbour
Commissioners were entitled to the benefit of
the Public Authorities Protection Act, R.S.O.
1960, c. 318.
McGonegal v. Gray [1952] 2 S.C.R. 274, in
which the Supreme Court considered section 11
of the Public Authorities Protection Act, R.S.O.
1937, c. 135 (which is very similar to the 1970
enactment above set forth), and there was a
division of opinion on the question whether the
act complained of in that instance came within
the scope of the section so as to afford the
protection that it provided.
Sociedad Transoceanica Canopus S. A. etc. v.
National Harbours Board [1968] 2 Ex.C.R.
330, in which Jackett P. said at pages 346-47:
The defendant, in addition to its defence on the merits,
relies on s. 11(2) of the Statute of Limitations, R.S.B.C.
1960, c. 370, which reads as follows:
(2) Where no time is specially limited for bringing any
action in the Act or law relating to the particular case, no
action shall be brought against any person for any act
done in pursuance or execution, or intended execution, of
any Act of the Legislature, or of any public duty or
authority, or in respect of any alleged neglect or default in
the execution of any such Act, duty, or authority, unless
the action be commenced within twelve months next after
the act, neglect, or default complained of, or, in case of a
continuance of injury or damage, within twelve months
next after the ceasing thereof.
This may well be a defence to an action on the Admiralty
side of this Court against the person on whose act, neglect
or default the claim was based. Compare Algoma Central
and Hudson Bay Ry. Co. v. Manitoba Pool Elevators
([1964] Ex.C.R. 505). It does not seem to have any applica
tion where the claim is one against the Crown in respect of
the negligence of a servant even if it is being pursued by
way of an action against a defendant nominated by a
statutory provision such as s. 39 of the National Harbours
Board Act.
In the Algoma case (supra) the Court held
that the Lakehead Harbour Commissioners
were entitled to the benefit of section 11 of the
Ontario Public Authorities Protection Act. Wells
D.J.A. said at page 512:
With respect, it would seem to me that the same principle
applies to the Public Authorities Protection Act on which
these defendants as agents of the Crown have elected to
rely. By reason of section 11 thereof to which I have
already alluded, it would seem to me that this action is
barred by reason of the provisions of that section of the
statute and that the Lakehead Harbour Commissioners are
entitled to take advantage of it as being agents of the Crown
in the carrying out of their duties in respect of the harbour
in question.
Owens v. Calgary Farmer and Calgary Weekly
Herald [1927] 3 W.W.R. 62 (Alta. S.C.). The
headnote reads:
Leave to add a new defendant to a libel action refused
where at the time of the application for leave the period
within which, under The Libel and Slander Act, R.S.A.,
1922, ch. 101, an action for libel must be begun had
expired, although the action against the original defendants
had been commenced in time.
and at page 62 Walsh J. said:
The Courts, in the exercise of the very wide discretionary
powers to amend given to them, have as a rule refused to
permit amendments which would enable the plaintiff to
litigate a cause of action with respect to which his remedy
was gone at the time of the application for leave to amend.
Weldon v. Neal (1887) 19 Q.B.D. 394, 56 L.J.Q.B. 621, is
an outstanding example of this. The Full Court of British
Columbia in Reynolds v. McPhalen (1908) 7 W.L.R. 380,
refused to allow the plaintiff to amend his statement of
claim by alleging that notice had been given to the defend
ant of the assignment of the cause of action on which the
action was founded because The Statute of Limitations had
at the time of the application intervened and established a
right in the defendant's favour. The authorities in support of
this principle are set out in the judgments of Irving and
Martin, JJ. Much to the same effect is Hudson v. Fer-
nyhough, 61 L.T. 722.
These cases and those referred to in them are actions in
which it was sought to take away by amendment from a
defendant in an action which was brought against him in
time the protection of a statute which had run in his favour
since it was started. If it is improper to enlarge the remedy
against a defendant in an action properly brought against
him if by such enlargement a statutory protection accrued
to him since it was brought is swept away much more
improper is it in my judgment to bring into an action a new
defendant against whom the plaintiff had long before lost
any right which he ever had.
I now refer to this Court's Rules in respect of
amendment of pleadings, particularly Rules 424
to 427 which have been borrowed from the
modern English Rule, R.S.C. Ord. 20, r. 5, and
which are designed to correct possible injus
tices arising out of the rigidity of the former
rule, applied in such cases as Weldon v. Neal
(1887) 19 Q.B.D. 394, that a plaintiff could not
make an amendment that had the effect of
setting up a fresh cause of action that had
become barred by expiration of a statutory limi
tation period since the commencement of the
action. Our Rules and the English Rule are set
forth next, side by side for ready comparison:
Rule 424: Where an ap- Ord. 20, r. 5: (1) Sub-
plication to the Court ject to Order 15, rules 6,
for leave to make an 7 and 8 and the follow-
amendment mentioned in ing provisions of this
Rules 425, 426 or 427 is rule, the Court may at
made after any relevant any stage of the proceed-
period of limitation cur- ings allow the plaintiff to
rent at the date of corn- amend his writ, or any
mencement of the action party to amend his plead-
has expired, the Court ing, on such terms as to
may, nevertheless, grant costs or otherwise as may
such leave in the cir- be just and in such man-
cumstances mentioned in ner (if any) as it may
that rule if it seems just direct.
to do so.
Rule 425: An amend- Ord. 20, r. 5: (2) Where
ment to correct the name an application to the
of a party may be allow- Court for leave to make
ed under Rule 424, not- the amendment mention-
withstanding that it is al- ed in paragraph (3), (4)
leged that the effect of or (5) is made after any
the amendment will be to relevant period of limita -
substitute a new party, if tion current at the date
the Court is satisfied that of issue of the writ has
the mistake sought to be expired, the Court may
corrected was a genuine nevertheless grant such
mistake and was not mis- leave in the circumstan-
leading or such as to ces mentioned in that
cause any reasonable paragraph if it thinks it
doubt as to the identity just to do so.... (5) An
of the party intending to amendment may be al-
sue, or, as the case may lowed under paragraph
be, intended to be sued. (2) notwithstanding that
the effect of the amend
ment will be to add or
Rule 426: An amendment substitute a new cause of
to alter the capacity in action if the new cause of
which a party sues action arises out of the
(whether as plaintiff or as same facts or substantial-
defendant by counterclaim ly the same facts as a
or cross-demand) may be cause of action in respect
allowed under' Rule 424 of which relief has al-
if the capacity in which, ready been claimed in
if the amendment is the action by the party
made, the party will sue applying for leave to
is one in which, at the make the amendment.
date of commencement of
the action or the making
of the counterclaim or
cross-demand, as the case
may be, he might have
sued.
Rule 427: An amendment
may be allowed under
Rule 424 notwithstanding
that the effect of the
amendment will be to add
or substitute a new cause
of action if the new cause
cf action arises out of the
same facts or substantial
ly the same facts as a
cause of action in respect
of which relief has al
ready been claimed in the
action by the party ap
plying for leave to make
the amendment.
The English rule was considered in Sterman
v. E. W. & W. J. Moore [1970] 1 Q.B. 596, in
which the question was whether a writ that had
been issued within the limitation period, but
which was defective, could be amended to cure
the defect after the period of limitation had
expired. Lord Denning M.R. said at pages
603-04:
... So I turn to the third question. It is whether the writ can
be amended so as to state the cause of action. It is urged
that it should not be allowed because the period of limita
tion has expired. Three years have gone by since the acci
dent. The new rules, it is said, have cut down the power to
amend. You can only amend a writ, it is said, so as to avoid
the Statute of Limitations, if the case can be brought
expressly within Ord. 20, r. 5, subrr. (2), (3), (4) and (5): and
that otherwise it is a strict rule of the court that no amend
ment can be allowed which would deprive a defendant of
the benefit of the Statute of Limitations. Some support for
this interpretation of Ord. 20, r. 5 is given by the recent
case in this court of Braniff v. Holland & Hannen and
Cubitts (Southern) Ltd. (1969) 1 W.L.R. 1533. But I must
say that I cannot agree with it. If this restrictive interpreta
tion were given to Ord. 20, r. 5, we should be once again
allowing genuine claims to be defeated by technical defects.
I think we should give full effect to the wide words of
Ord. 20, r. 5(1). We should not cut them down by reference
to subrules (2), (3), (4) and (5). I adhere to the view I
expressed in Chatsworth Investments Ltd. v. Cussins (Con-
tractors) Ltd. (1969) 1 W.L.R. 1, 5:
Since the new rule, I think we should discard the strict
rule of practice in Weldon v. Neal (1887) 19 Q.B.D. 394.
The courts should give Ord. 20, r. 5(1) its full width. They
should allow an amendment whether it is just so to do,
even though it may deprive the defendant of a defence
under the Statute of Limitations.
I withdraw not one whit of those words: and I think we
should apply them here. Here was a plaintiff who issued his
writ and served it on the defendants well within the period
of limitation. They knew perfectly well that the plaintiff was
claiming damages for his fall from the trestle because it was
their fault. Yet they seek to bar him on the most technical
consideration—just because he omitted the words "for neg
ligence and breach of statutory duty." I do not think we
should allow this technical objection to prevail. We should
apply the wise words of Holroyd Pearce L.J. in Pontin v.
Wood (1962) 1 Q.B. 594, 609 when he said that the court
would give its aid "to regularising the procedure of a known
genuine case commenced before the time limit expired but
containing technical defects." Applying those words, we
should allow the plaintiff to amend the writ so as to state in
terms that his claim is for damages "for negligence and
breach of statutory duty." I see no harm in adding the
further claim for damages for "breach of agreement." Once
amended, there will be no difficulty whatsoever in allowing
the statement of claim to stand. It will fully satisfy Ord. 18,
r. 15(2).
Salmon L.J. said at page 605:
The real question, as my Lord has said, is whether
Mars-Jones J. had power to give leave to amend the writ,
and, if so, whether he ought to have exercised that power. I
entirely agree that he had ample power. In Pontin's case
(1962) 1 Q.B. 594 the same criticism could be made of the
writ as the criticism which can be made in this case: it did
not set out the cause of action upon which the plaintiff
relied. It was in these terms: "The plaintiff's claim is for
damages for personal injury." Indeed that indorsement
could be criticised still more severely than the present
because in those days there was a rule with which that
indorsement did not comply. The old rule required the writ
to follow a form which then appeared in the Appendix. This
court, however, held that as that writ was not a nullity, any
defect that it might contain could be cured by the subse
quent delivery of a proper statement of claim, albeit deliv
ered after the expiry of the relevant period of limitation.
When Pontin's case was decided, the present Ord. 20, r.
5(1) which now governs the general powers of the court to
allow writs to be amended had in its place the old Ord. 28, r.
1, which, for the purpose of this case was the same as the
present Ord. 20, r. 5(1). If in Pontin's case a defect in the
writ could be cured by the delivery of a proper statement of
claim, it seems to me inconceivable that this court would
not have held that there was power to allow an amendment
of the writ had an application been made to amend it. It is
suggested that Ord. 20, r. 5 cut down the general powers
which the court formerly had under the old Ord. 28, r. 1. I
do not agree. Accordingly, I think Mars-Jones J. had ample
power to give leave to amend the writ; and in my view,
having regard to all the circumstances which my Lord has
recited and which I need not repeat, I am satisfied that he
was wrong in refusing to exercise that power. I bear in mind
that this is not a case where the writ in its original form
could have caused any perplexity or embarrassment to the
defendants. The evidence before us shows that they knew
perfectly well what the nature of the plaintiff's claim was,
and indeed had been in correspondence with him and his
solicitors about it. As I have already said, although I
express no concluded view about Bridge J.'s decision, I
think it was right in the state of the case as it was when it
came before him. I would allow the appeal from the refusal
to give leave to amend the writ, and therefore the point in
the other appeal becomes academic.
Cross L. J. said at pages 605-06:
I agree that Mars-Jones J. ought to have allowed the writ
to be amended. This case, to my mind, is just such a case as
was envisaged by Holroyd Pearce L.J. in the passage in his
judgment in Pontin v. Wood (at p. 609) to which the Master
of the Rolls has referred; and I think that the amendment
would have been allowed under the old rules. It would,
indeed, be extraordinary if the new rules had cut down the
power of the court to allow amendments after the expiry of
the limitation period, and I do not think that the opening
words of R.S.C., Ord. 20, r. 5(1) on which counsel relies
have that limiting effect. Nor do I think that there is
anything contrary to this conclusion in the recent case of
Braniff v. Holland & Hannen and Cubitts (Southern) Ltd.
(1969) 1 W.L.R. 1533, which was referred to. There what
was sought was to amend the writ by adding a new defend
ant after the expiry of the period. That was something
which could not have been done under the old rules and did
not fall within subrules (3), (4) or (5) of the new Ord. 20, r.
5. I agree that the appeal should be allowed.
In Rodriguez v. R. J. Parker (Male) [1967] 1
Q.B. 116, Nield J. held that Limitation Acts are
procedural and that Ord. 20, r. 5 is a rule for
regulating procedure. At pages 136-37 he said:
Having considered all these matters, I form my own
opinion upon this point, which must be formed, of course,
in the light of the authorities, that the Limitation Acts are
procedural. I base this opinion principally on the words of
section 2 of the Act of 1939 itself which I have quoted,
namely: "The following actions shall not be brought after
the expiration of six years." The Act does not provide that
after such period the plaintiff's remedy shall be extin
guished or even wholly cease to be enforceable, and indeed
the remedy is not extinguished, nor does it wholly cease to
be enforceable; for if a defendant elects not to plead the
Statute of Limitations, the remedy may be pursued after the
period of limitation. Further than that, the benefit which a
defendant derives from the Statute of Limitations is not, I
think, properly described as a substantive benefit but really
is merely as a right to plead a defence if he chooses to do so
that the plaintiff is barred from prosecuting his claim.
I am fortified in this opinion by one short sentence, in
addition to the other matters to which I have referred, in
Battersby v. Anglo-American Oil Company Limited ((1945)
K.B. 23; 61 T.L.R. 13; (1944) 2 All E.R. 387, C.A.). Lord
Goddard C.J. said ((1945) K.B. 23, 29): "As we have just
said, there is a consistent line of authority that the court will
not extend the time in such cases, so as to deprive the
defendant of the benefit of the statute." Lord Goddard C.J.
is there again using a neutral word, "benefit." Lord God-
dard continued:
The first case is Doyle v. Kaufman ((1877) 3 Q.B.D.
340, C.A.). In the Divisional Court, Cockburn C.J. with
whom Lush J. concurred said (ibid 341): 'The power to
enlarge the time given by R.S.C. Ord. 57, r. 68 (now
R.S.C. Ord. 64, r. 7), cannot apply to the renewal of a
writ when, by virtue of a statute, the cause of action is
gone.' Perhaps it might have been more accurate to say:
'when the remedy is barred,' but the effect is the same.
It would, of course, not be right to deal with this matter
merely upon the question of choice of language. One must
construe the true position, and my view is that Cockburn
C.J. was wrong, if I may respectfully say so, in saying that
by virtue of the statute of limitation the cause of action had
gone, and Lord Goddard C.J. was right when he suggested
that the proper way of putting it was that the remedy was
barred.
To complete this part of my judgment, which I fear is of
very great length, and so deal with Mr. Rougier's last point
upon this part of the appeal, I would add that in my
judgment Ord. 20, r. 5, falls within section 99(1)(a) of the
Supreme Court of Judicature (Consolidation) Act, 1925, as
being a rule for regulating and prescribing the procedure
and practice to be followed in the High Court in a matter in
which the High Court has jurisdiction. Thus, upon the
fundamental plea I find that R.S.C. Ord. 20, r. 5, is intra
vires.
Let me now turn to consider the second point advanced
on behalf of the appellant defendant, namely, that in the
circumstances here the court's discretion should not be
exercised in favour of the plaintiff so as to allow him to
substitute a new defendant for the defendant he named in
the writ.
and he continued at page 139:
... I am of opinion that the ultimate outcome of this appeal
depends on a consideration of the provisions of R.S.C. Ord.
20, r. 5(3), in the light of the present facts. In my judgment,
before the court will grant leave to amend as proposed here
the court must be satisfied of three things: firstly, that the
mistake sought to be corrected was a genuine mistake;
secondly, that the mistake was not misleading or such as to
cause any reasonable doubt as to the identity of the person
intended to be sued; thirdly, that it is just to make the
amendment.
In Mitchell v. Harris Engineering Co., Ltd
[1967] 2 All E.R. 682, Lord Denning said at
pages 685-86:
Prior to the new rule, there was a long line of authority
which said that, once a person had acquired the benefit of a
statute of limitations, he was entitled to insist on retaining
that benefit: and, what is more, the court would not deprive
him of that benefit by allowing an amendment of the writ or
of the pleadings. For instance, there was a case where a
firm called Elsby Brothers turned themselves into a compa
ny called Elsby Brothers, Ltd. An injured workman, within
the three years permitted by the statute, issued a writ
against "Elsby Brothers". After the three years, he discov
ered his mistake and sought to amend by substituting "Els-
by Brothers, Ltd." as defendants. He was not allowed to do
so (see Davies v. Elsby Brothers, Ltd. ([1960] 3 All E.R.
672). Another case was where a man had been killed and his
widow claimed compensation under the Fatal Accidents
Acts. She brought an action within the one year permitted
by the statute against the employers; but she described
herself in the writ "as administratrix" of her husband's
estate, when she had not then taken out letters of adminis
tration. When the mistake was discovered she sought to
amend the writ by striking out the words "as administra-
trix"; but the one year had by that time expired, and she
was not allowed to do so (see Hilton v. Sutton Steam
Laundry ([1945] 2 All E.R. 425; [1946] K.B. 65). Other
instances are Weldon v. Neal (1881) 19 Q.B.D. 394, where
an amendment was not allowed to substitute a new cause of
action, and Mabro v. Eagle Star & British Dominions Insur
ance Co. ([1932] All E.R. Rep. 411; [1932] 1 K.B. 485),
where an amendment was not allowed to substitute a new
plaintiff.
Some of the judges in those cases spoke of the defendant
having a "right" to the benefit of the statute of limitations:
and said that that "right" should not be taken from him by
amendment of the writ; but I do not think that was quite
correct. The statute of limitations does not confer any right
on the defendant. It only imposes a time limit on the
plaintiff. Take the statute here in question. It is s. 2 of the
Limitation Act, 1939, as amended by s. 2(1) of the Law
Reform (Limitation of Actions, &c.) Act, 1954. It says that
in the case of actions for damages for personal injuries for
negligence, nuisance or breach of duty "the action shall not
be brought" after the expiration of three years from the
date on which the cause of action accrued. In order to
satisfy the statute, the plaintiff must issue his writ within
three years from the date of the accident. There is nothing
in the statute, however, which says that the writ must at
that time be perfect and free from defects. Even if it is
defective, nevertheless the court may, as a matter of prac
tice, permit him to amend it. Once it is amended, then the
writ as amended speaks from the date on which the writ
was originally issued and not from the date of the amend
ment. The defect is cured and the action is brought in time.
It is not barred by the statute (see Hill v. Luton Corpn.
([1951] 1 All E.R. 1028; [1951] 2 K.B. 387); Pontin v.
Wood ([1962] 1 All E.R. 294; [1962] 1 Q.B. 594).
In my opinion, whenever a writ has been issued within
the permitted time, but is found to be defective, the defend
ant has no right to have it remain defective. The court can
permit the defect to be cured by amendment: and whether it
should do so depends on the practice of the court. It is a
matter of practice and procedure. As such it can be altered
by the rule committee under s. 99(1)(a) of the Act of 1925.
That is what has been done by R.S.C., Ord. 20, r. 5(2), (3),
(4) and (5). Rule 5(3) has removed the injustice caused by
the decision in Davies v. Elsbv Brothers, Ltd. ([1960] 3 All
E.R. 672). Rule 5(4) has removed the injustice caused by
Hilton v. Sutton Steam Laundry ([1945] 2 All E.R. 425;
[1946] K.B. 65). Rule 5(5) has removed the injustice caused
by such cases as Marshall v. London Passenger Transport
Board ([1936] 3 All E.R. 83) and Batting v. London
Passenger Transport Board ([1941] 1 All E.R. 228).
and at page 687-88 Russell L.J. said:
... It is quite clear that a rule of court cannot in terms alter
the period of time laid down by a statute within which an
action must be brought; but it seems to me to be equally
clear that the circumstances in which a litigant may amend
his existing proceedings, for example by addition or substi
tution of defendants, are essentially a matter of practice or
procedure. Nor does it appear to me that the Order made
conflicts with the law contained in the statute of limitations,
notwithstanding that, if the amendment had been refused, a
defence would have been available to the Irish company
under that statute in a different action. The statute says that
an action founded on tort shall not be brought after the
expiration of three years from the date on which the cause
of action accrued. The torts alleged in the present case by
the writ are torts of breach on Aug. 27, 1963, of common
law and statutory duty at premises at Longfield Road,
Tunbridge Wells, and the action was brought within three
years of the alleged event. It was argued that before the
amendment, the Irish company had a sure shield under the
statute and the amendment removed that shield; but its sure
shield under the statute was one which was available to it in
another action should one be brought out of time. Its shield
in the present proceedings was not the statute, but the fact
that it was not yet a defendant in them. That shield could be
taken away by the procedural power of permitting amend
ment of these proceedings. For these reasons, which appear
to me preferable to those based on the conception of
statutes of limitation as procedural in character for the
purposes of private international law, I do not consider
R.S.C., Ord. 20, r. 5(2) and (3) to be ultra vires.
We were referred to a number of cases in which the
courts have declined to permit amendments which would
have the effect of depriving a party of the ability which he
would have in any fresh proceedings to take advantage of
the statute of limitations. It was urged that these were based
on an inability in point of substantive law to deprive a
person of a right conferred on him by the statute of limita
tions than on a settled practice. Various locutions were used
in these cases, some expressly referring to practice, others
pointing (but not, I think conclusively) in the direction of
"defeating" the statute. See, e.g., Greer, L.J., and Scrutton
L.J., respectively, in Mabro v. Eagle Star & British Domin
ion Insurance Co., Ltd. ([1932] All E.R. Rep. 411; [1932] 1
K.B. 485). I take these cases to have been decided, how
ever, on grounds of settled practice, albeit attributable to
the parties' positions vis-Ã -vis the statute of limitation. So
far as I am aware, no judge said that it would be outside the
jurisdiction of the court to allow the amendment in ques
tion: and if it were thought to be a question of substantive
law, this would surely have been the immediate and short
answer to the application to amend.
Counsel for the plaintiff submitted that only
by having the controllers added as defendants
can the plaintiff ensure that it will have the
proper parties before the court and be able to
obtain adequate and relevant discovery. In my
view this argument is not persuasive. The action
is against Her Majesty. Damages have not been
claimed against the servants, at least not
expressly in the statement of claim or in the
proposed amendments. If the plaintiff can suc
ceed against Her Majesty, it will not be neces
sary to look to the servants for payment of any
damages awarded. If the action fails against Her
Majesty, it is difficult to see any probability
that it will succeed against the servants. As to
discovery, the Court's Rule 465 provides ade
quately for discovery, for an officer of the
Crown may be examined and may be required
to inform himself.
It may be that discovery by examination of
the controllers themselves would be more
directly productive than discovery by examina
tion of an officer of the Crown, but in the
circumstances I do not think that the controllers
should be added as defendants for the purpose
of making them available for discovery. Proof
of the circumstances attending the crash and its
cause may be made without adding the controll
ers as defendants. The crash of the aircraft
occurred on April 22, 1968. The action against
Her Majesty was not commenced until Septem-
ber 28, 1970. The application to add the con
trollers was made still later, almost 2 years
after the crash.
The limitation statute is applicable to an
action against the controllers. No action was
started against them within the period limited
for taking such action. This is not a case of an
action started in good time against the controll
ers but which is defective in some aspect of
pleading that can be cured by amendment with
out detriment to them. I do not think it is
necessary to the proper determination of the
plaintiff's action against the Crown that the
controllers be added as defendants. I think that
if they are added they can successfully plead
the limitation statute in defence. I do not think
they should be added and exposed to litigation
where that defence is clearly open to them.
I don't think that the interests of justice
require that the controllers be added as defend
ants, or that a good case has been made in any
respect for so adding them. Therefore, (a) leave
to add them as defendants will be refused, and
(b) leave will be granted to the plaintiff to make
the other amendments applied for but such
amendments shall not describe or refer to the
said controllers as defendants.
Her Majesty shall be entitled to recover her
costs of and incidental to the application for
leave to amend.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.