Eshelby's Principle: A Lawyer's Fine Point That Can Be Overcome

In Short

Background: In Western Australia, a procedural rule called the "Eshelby principle" prevents the pursuit of causes of action grounded upon events arising only after the commencement of litigation. Other jurisdictions have taken steps to address the issues arising from the application of the principle.

Issue: Is a party able to overcome Eshelby's principle and the restriction to claims for events arising after pleadings have been filed?

Answer: Yes, provided that the fresh cause of action is brought within the limitation period.

The operation of Eshelby's principle was recently reviewed by the Supreme Court of Western Australia by Justice Kenneth Martin in two decisions. These cases provide a practical solution for proceedings in Western Australia, which are restricted by a principle that no longer operates in other Australian jurisdictions.