CPO: Upper Tribunal could substitute new respondent after Limitation Period

After the expiry of the relevant limitation period, does the Upper Tribunal have power to substitute a new party as the respondent to a claim for compensation for disturbance?

There appears to have been no decision of the Upper Tribunal dealing with the issue of substitution of a party after the expiry of a limitation period.

In the Upper Tribunal (Lands Chamber) case of William Hill Organisation Limited v Crossrail Limited [2016], this was the position where the claimant had claimed against Crossrail Limited whereas the acquiring authority, and the proper respondent, should have been Transport for London (“TfL”).

Section 35, Limitation Act 1980 concerned the making of new claims in pending actions.

“35 (1)…..

(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either –

(a) the addition or substitution of a new cause of action; or
(b) the addition or substitution of a new party; …

(5) The conditions …… are the following –

(a) ……; and
(b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.

(6) The addition or substitution of a new party shall not be regarded for the purposes of subsection (5)(b) above as necessary for the determination of the original action unless either –

(a) the new party is substituted for a party whose name was given in any claim made in the original action in the stake for the new party’s name; or
(b) any claim already made in the original action cannot be maintained by or against an existing party unless the new party is joined or substituted as plaintiff or defendant in that action.”

So, the substitution of a third party (C) would only be necessary for the determination of the original action if either of two conditions was satisfied, namely: that the name of either A or B was given in a claim made in the original action in mistake for C’s name; or, a claim made by A or against B in the original action cannot be pursued by or against them unless C is joined or substituted as plaintiff or defendant in the action.

However Section 35 of the 1980 Act made no mention of tribunals, or of tribunal procedure rules.

The Tribunal was satisfied that, amongst the “powers akin to those of the High Court”, referred to by Sedley LJ in R (Cart) v Upper Tribunal [2010], vested in the Upper Tribunal by section 25 of the Tribunals, Courts and Enforcement Act 2007, is the power, conferred on the High Court by section 35(3)-(4) of the Limitation Act 1980, to allow, in accordance with the relevant rules of court, a new claim to be made, by the substitution of a new party, after the limitation period has expired, provided the conditions in section 35(5) were satisfied.

The Tribunal therefore determined the substitution of respondent “out of time” issue in the claimant’s favour.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.