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PI and Civil Litigation

Law - practice - procedure

24 JAN 2014

Nemeti and Others v Sabre Insurance Co Ltd [2013] EWCA Civ 1555; (2014) APIL 001

Nemeti and Others v Sabre Insurance Co Ltd [2013] EWCA Civ 1555; (2014) APIL 001
An insurer could not be substituted by another party after the limitation period had expired under s 35 of the Limitation Act 1980.
3 December 2013
Court of Appeal
Sir Terence Etherton (Chancellor), Hallett LJ and Sharp LJ
The claimants were Romanian nationals who were involved in a road traffic accident in Romania. The driver was killed and the claimants sustained personal injuries.
The vehicle involved in the crash was owned and insured by the driver’s father and the claimants issued court proceedings against the English insurers who provided motor insurance to the driver’s father. The claimants sought to rely on the European Communities (Rights Against Insurers) Regulations 2002. However, the driver had taken the car without his father’s permission and was as such uninsured, meaning the regulations did not apply.
The claimants attempted to add or substitute the driver’s estate to the litigation after the expiry of the limitation date which would mean the Sabre insurance company meeting any unsatisfied judgment. At first instance the court permitted the substitution of the driver’s estate in place of the defendant insurers. However, this was dismissed on appeal by Sabre. The claimants subsequently appealed to the Court of Appeal.
In dismissing the appeal, the court held that an amendment outside the limitation period could only be permitted in specified circumstances. The court did not have the power to allow a new claim to take advantage of s.35 of the Limitation Act 1980 unless the amendment fell within the terms of s 35. This was a new cause of action and could not be brought outside the primary limitation.
The original cause of action against the defendant insurer derived from statute, namely the regulations. However, the new claim against the defendant’s estate was a claim in negligence. The two were different causes of action. The proposed substitution of a party was not intended to preserve the original claim but to initiate a new claim against a new party. It would have been sensible to issue proceedings against the deceased driver’s estate as well as the insurer.
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