Conditional Appearance in UK Law

In particular, when the Statute of Limitations has run or is running in favour of a defendant, as here, the plaintiff who desires a further extension must show sufficient reason for an extension. These cases ought to be brought on for trial, as soon as reasonably may be, while the facts are fresh in people's minds and while medical evidence and so forth can be obtained. If the plaintiff delays until the very last minute, he has only himself to thank.

The tenor of the Order shows that it is directed to the curing of that which is capable of cure, to saving rather than destroying. But I do not accept that they should therefore refuse any normal aid which would be given as of course under Order 70 if no question of limitation arose – aid which is directed not to setting up new cause of action or a new case, but to regularising the procedure of a known genuine case commenced before the time limit expired but containing technical defects.

That Rule, which applies equally to an application under any of the heads of Rule 1, provides that "every application for leave to serve such writ or notice on a defendant out of the jurisdiction shall be supported by affidavit or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action … and the grounds upon which the application is made ; and no such leave shall be granted unless it shall be made sufficiently to appear to the Court or Judge that the case is a proper one for service out of the jurisdiction under this order."

The other criticism is that "a prima facie case" puts the standard of proof somewhat too low, while to be "satisfied" puts it somewhat too high.

So subsection (1)(a) must be contemplating a case in which, because the 3 years have expired without an action being brought, section 2A applies to the prejudice of the plaintiff. But if the plaintiff has brought his action within the 3 years, how has he been prejudiced by section 2A? If this argument is sound, the respondent's case fails in limine.

This is not done under order 8, Rule 1, for that only peimits renewal before the twelve months have expired. It is done under Order 64, Rale 7, which is the general Rule permitting enlargement of time. It was first done in 1877 by Sir George Jessel, Master of the Rolls, in Re Jones, which is reported in 25 Weekly Reporter at page 303, which has been accepted as good law ever since. Now if a Writ can be renewed after the twelve months have expired, that must mean that it is not then a nullity.

There is no reason to quarrel with the general proposition that an amendment of a Writ or a pleading relates back to theoriginal date of the document amended, as stated by Lord Collins, Master of the Rolls in Sneade -v- Motherton Barytes & Mead Mining Co, (1904) 1 King's Bench 295 at page 297, seems to me to be an entirely sensible proposition so long as the amendment concerned does not involve the addition of a new party, either as plaintiff or defendant, or the raising of a new cause of action, but involves only the modification, by addition, deletion or substitution, of pleas or averments made between existing parties in respect of a cause or causes of action already raised.