This case establishes that a beneficiary must demonstrate special circumstances to bring a derivative action and must generally include the administrator in such claims unless specific justifications exist.

Introduction

[1] This appeal concerns a claim by a beneficiary under a will for negligence against solicitors who, he claims, allowed his brother, also a beneficiary and then the administrator of the estate, to acquire and dispose of land which should have been part of the residuary estate. The claim was begun in a personal capacity, but it is now accepted that a claim that the solicitors owed a duty of care to beneficiaries would be difficult to sustain, and the claimant seeks to amend the proceedings to claim in a representative capacity on behalf of the estate. The events of which the claimant complains happened 13 or 14 years ago.

[2] The principal questions on this appeal relate to whether this is an appropriate case for a representative (or derivative) claim, which was the focus of the judges decision, and to the interpretation and application of s 35 of the Limitation Act 1980 and the rules of court which were enacted pursuant to it, first in the Rules of the Supreme court, and now in the Civil Procedure Rules. The limitation issues were the main focus of the decision of the court of Appeal. Section 35 was enacted following recommendations of the Law Reform Committee in 1977. It had two main objectives. The first was to enable a plaintiff to amend pleadings out of time so as to sue in another capacity, in particular to reverse the effect of such decisions as Ingall v. Moran [1944] KB 160, which created a grave injustice where proceedings were instituted under the Law Reform (Miscellaneous Provisions) Act 1934 prior to letters of administration being taken out and the limitation period expired before proceedings were instituted in a representative capacity: the grant did not date back to the date of death, by then it was too late to issue fresh proceedings or to amend. The second objective was to enable parties to be added out of time, in cases where joinder of the new party was necessary if the plaintiffs claim was to succeed, for example where the plaintiff was an equitable assignee and had omitted to join the assignor prior to the expiry of the limitation period.

[3] But s 35 has been described as being "without doubt one of the most convoluted provisions in the entire law of limitations" (McGee, Limitation Periods, 5 edn 2006, para 23.003). That is no doubt why there have been more than 25 decisions of the court of Appeal on s 35 and the rules of court.

The Background

[4] Mrs Alice Margot Roberts ("Mrs Roberts"), of Lower Hellingtown in Devon, made a will on 6 March 1992. In September 1994 a receiver was appointed by the court of Protection to administer her affairs. She died on 27 July 1995. Her grandson, Mark Roberts, the appellant, is one of the three equal residuary beneficiaries of the estate of Mrs Roberts. The other residuary beneficiaries are his brother, John Roberts, and his aunt, Ms Jill Roberts.

[5] The executors named in the will (Mrs Roberts solicitor and an accountant) renounced their right to probate and John Roberts was granted letters of administration with will annexed on 16 February 1996.

[6] Mrs Roberts will provided in cl 7 that if John Roberts within a specified time (the earlier of one month from demand by the trustees or twelve months from death) either paid, or provided security or an indemnity to the will trustees for, all of the estate and other duty arising on her death in respect of her estate then (i) a piece of land known as the Coppice would pass to Mark Roberts and (ii) the remainder of the property known as Lower Hellingtown Farm would pass to John Roberts. By cl 8, if the payment was not made or security/indemnity given then the properties would fall into re