Second action

McDonnell and another v Walker [2009] EWCA Civ 1257 24 November; SJ 1 December p29

The claimants were the driver and a passenger in a car involved in a road traffic accident. The driver of the other car was killed in the accident. Liability was not disputed but although proceedings were commenced within the limitation period they were not served until one day after it had expired. The insurers took the late service point and an application for an extension of time was refused. At that time the law was that the court could not exercise its power under s33 of the Limitation Act 1980 to disapply the ordinary three-year time limit in a personal injury action where the claimant had brought an action within the time limit and was bringing a second action in which the s33 application was made. The law was then changed by the decision of the House of Lords in Horton v Sadler [2006] UKHL 27, [2007] 1 AC 307 which made it possible to exercise the discretion under s33 in a second action. Some 22 months later the claimants commenced a second action and successfully applied under s33 to disapply the limitation period, even though the claims in the second proceedings were different from, and much larger than, the claims in the first proceedings, including substantial claims for loss of future earnings and psychological injury.