ABSTRACT
Finally under this section, for the sake of completeness, we consider the effect of beginning an action, discontinuing it and then issuing for a second time, where those second proceedings are outside the limitation period. This is what happened in Walkley v Precision Forgings Ltd [1979] 1 WLR 606, where the court refused to exercise its discretion under s 2D of the Limitation Act 1939 (the forerunner to the 1980 Act). Therefore, if the solicitor fails to start an action and the limitation period expires, the court retains a discretion to invoke s 33. If, however, the proceedings were issued but not served, or if the writ was served only for the action to be discontinued or struck out at a later date, the court has no discretion to reinstate the action. In Walkley, the court indicated that even in the last mentioned scenario it can exercise its discretion if there are exceptional circumstances, such as where the claimant has been encouraged to discontinue the action because of the misrepresentations of the defendant. But beware the moral of this tale-the claimant does not get two bites at the cherry!
