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Prescription — action withdrawn and then reinstated with consent of other party — original summons had interrupted prescription — claim had not prescribed
Plaintiff's action against the defendant had been withdrawn after summons had been issued because the plaintiff's lawyers had a conflict of interests. The plaintiff then took the case to another firm of lawyers. The original action was then reinstated or resuscitated with the express consent of the defendant. The consent to the reinstatement signed by the lawyers of both parties was filed.
The defendant pleaded that the action had prescribed between the withdrawal of the action and its reinstatement.
The court dismissed this plea. As the original action had been reinstated the present action was simply a continuation of the original action under the process previously issued. In terms of s 18(2)(a) of the Prescription Act, 1975 prescription had been interrupted by the issuing of the original summons and therefore the claim was not prescribed.
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