Whether a defendant can be added, in the alternative, after the end of the limitation period

CPR r19.5(3)(a) provides that, after the expiry of the limitation period, a new party may "be substituted for a party who was named in the claim form in mistake for the new party". The Court of Appeal confirmed in this case that it is not possible for a court to allow a new party to simply be added to proceedings after the expiry of the limitation period. The issue in this case was whether the addition of a defendant in the alternative to the existing defendant is permissible after the end of the limitation period.

The Court of Appeal has now confirmed that that is not permissible: "In my opinion, the concept of "substitution in the alternative" does not have any basis in CPR Part 19.5(3)(a). The introduction of the [new party] as a defendant amounted to the addition of a new party outside the limitation period not sanctioned by the rules…CPR 19(5)(a) is concerned with substitution. Save for the limited circumstances envisaged in the Adelson case, where an existing party may remain in the action after another has been substituted on a cause of action by cause of action basis, that rule requires the party named by mistake to fall out of the proceedings and for the new correctly named party to stand in its place". (as per Burnett LJ)