The plaintiff had engaged the defendants for the design and construction of Heron House in Glasgow in 1972. By writ and statement of claim dated 31 May 1978, the plaintiff sued the defendants for leaking to the building that has occurred since its completion. One of the defendants was Stevenson, an architect, who was alleged to have been negligent in the design of Heron House.
Stevenson issued a third party notice to Clarke, Nicholls and Marcel (Clarkes), the consulting engineers, and subsequently died on 17 August 1980. The plaintiff obtained orders that the claim be continued against those who had obtained letters of administration of Stevenson’s estate.
Clarkes contended that Stevenson’s death destroyed any rights he had against them, and on 13 August 1981 applied to dismiss the third party contribution claim for want of prosecution and to strike out the third party notice on the ground that it disclosed no cause of action.
Judge Newey QC dismissed both applications on 2 November 1981. Judge Newey held that the doctrine of actio personalis moritur cum persona did not bar the third party contribution claim because it was preserved for the benefit of Stevenson’s estate by section 1 of the Law Reform (Married Women and Tortfeasors) Act of 1934.
Clarkes appealed against the decision refusing to strike out the third party notice on the ground that it disclosed no cause of action. The appeal proceeded on the basis that any claim for breach of contract and contribution was statute barred.
Court of Appeal decision
Donaldson LJ noted that it was trite law that a limitation period bars the remedy but not the right, and only when it is pleaded.
Donaldson LJ held that when it is clear there is a defence under the limitation act, the defendant can either plead it and seek a trial of that preliminary issue or, in a very clear case, apply to strike out the claim on the basis that it is vexatious and an abuse of process. However, the defendant may not have the claim struck out on the ground that it discloses no cause of action. The primary judge was correct on not striking out the third party notice because it was premature and he was not satisfied that no reasonable cause of action was disclosed.
Donaldson LJ discussed the history and nature of the doctrine of actio personalis moritur cum persona. Donaldson LJ noted that originally under actio personalis moritur cum persona, when a plaintiff or defendant passed away after an action had been commenced, the action was abated, unless an exception to the rule applied (relevantly, a breach of contract). However, the Law Reform Act of 1934 had comprehensively modified the application of actio personalis moritur cum persona. Whilst Clarkes accepted that the third party claim for negligence was not barred under the rule, it submitted that the claim for contribution was, because the cause of action could not arise until a finding or admission of liability had been made, and neither had occurred, it was not a right preserved by the Law Reform Act of 1934. Donaldson LJ held that the right to claim contribution was not one that existed under tort, but was instead a sui generis right which was not tortious but which arose from tortious rights. Therefore, the rule of actio personalis moritur cum persona did not apply to the right to claim contribution.
Sir Shaw agreed.
Stevenson LJ also agreed, and opined that a defendant wising to strike out a claim on the ground that a limitation period defence applied and makes the claim frivolous and an abuse of process may do so without filing a defence as that will allow the plaintiffs to know that such a defence will be pleaded, and to adduce evidence that an exception to the defence may apply.
Appeal dismissed. Leave to appeal refused. Costs of the appeal costs in the cause.