COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ROMFORD COUNTY COURT
Deputy District Judge Lawrence
London, WC2A 2LL
B e f o r e :
LORD JUSTICE CLARKE
LORD JUSTICE DYSON
| Parsons and Another
|- and -
|George and Another
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Ms Katherine McQuail (instructed by Messrs Birkell Long) for the Respondent
Crown Copyright ©
Lord Justice Dyson:
"Dear Sir & Madam
Mrs Pamela Audrey Purcell
Termination Lease Mansted House Chadwell Heath
We act for your landlords, the trustees of the late Mrs E F Stedman. "
On 2 April, the claimants served a counter-notice on Birkett Long stating that they were not willing to give up possession. Birkett Long wrote to the claimants' solicitors on 10 April saying: "We acknowledge receipt of your counter-notice and await hearing from you further". The heading to this letter referred to Mrs Purcell, but not to the defendants. On 16 April, the claimants' solicitors wrote to Birkett Long putting forward the claimants' offer to buy the freehold for £90,000. By their reply dated 28 April, Birkett Long stated that their client was not interested in selling the property at the figure put forward, asking the claimants' solicitors to note that the freehold had been transferred by the defendants to Mrs Purcell. The transfer was dated 23 April. Birkett Long wrote on 6 May saying that they were continuing to act for Mrs Purcell.
Part II of the LTA
"A tenancy to which this Part of this Act applies shall not come to an end unless terminated in accordance with the provisions of this Part of this Act; and subject to the provisions of section twenty-nine of this Act, the tenant under such a tenancy may apply for a new tenancy—
(a) if the landlord has given notice under section 25 of this Act to terminate the tenancy…."
"No application under subsection (1) of section twenty-four of this Act shall be entertained unless it is made not less than two nor more than four months after the giving of the landlord's notice under section twenty-five of this Act…."
Change of parties after the expiry of a relevant limitation period: general
In the pre-CPR period
"5. – (1) Subject to Order 15, rules 6,7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.
(2) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.
In this paragraph "any relevant period of limitation" includes a time limit which applies to the proceedings in question by virtue of the Foreign Limitation Periods Act 1984.
(3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue or, as the case may be, intended to be sued.
(4) An amendment to alter the capacity in which a party sues may be allowed under paragraph (2) if the new capacity is one which that party had at the date of the commencement of the proceedings or has since acquired.
(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."
"In applying Ord. 20, r 5 (3) it is, in my judgment, important to bear in mind that there is a real distinction between suing A in the mistaken belief that A is the party who is responsible for the matters complained of and seeking to sue B, but mistakenly describing or naming him as A and thereby ending up suing A instead of B. The rule is designed to correct the latter and not the former category of mistake. Which category is involved in any particular case depends upon the intentions of the person making the mistake and they have to be determined on the evidence in the light of all the surrounding circumstances. In the instant case I have not the slightest difficulty in accepting Mr Greenwood's assertion that he intended to sue the relevant landlord under the Act. After all, he was responding on behalf of his lessee client to a notice to quit given on behalf of the landlord and it would have been surprising, to say the least, if he had thought that it was appropriate to respond by claiming a new lease from the managing agent or any other stranger to the landlord and tenant relationship. Accordingly I would conclude that he made a genuine mistake of a character to which Ord 20, r 5(3) can apply."
"Is the rule to be limited to mere mis-spelling or some other slip such as leaving out one word in the long title of a company so that looking at the name on the proceedings the nature of the mistake can readily be seen; or is it to be more liberally construed so that it will cover the case when entirely the wrong name has been used? I see no reason why it should not include a case where entirely the wrong name has been used, provided it was not misleading, or such as to cause any reasonable doubt as to the identity of the person intended to be sued. The identity of the person intended to be sued is of course vital. But in this case I have no doubt that the identity of the person intended to be sued was the current landlord, Bass. The wording of the rule makes it clear that it is not the identity of the person sued that is crucial, but the identity of the person intended to be sued, which is a very different matter."
Change of parties after the expiry of a relevant limitation period: the position under the CPR.
"3.10 Where there has been an error of procedure such as a failure to comply with a rule or practice direction –
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error."
19.2 (1) This rule applies where a party is to be added or substituted except where the case falls within rule 19.5 (special provisions about changing parties after the end of a relevant limitation period).
(2) The court may order a person to be added as a new party if –
(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.
(3) The court may order any person to cease to be a party if it is not desirable for that person to be party to the proceedings.
(4) The court may order a new party to be substituted for an existing one if –
(a) the existing party's interest or liability has passed to the new party; and
(b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings."
19.5 (1) This rule applies to a change of parties after the end of a period of limitation under –
(a) the Limitation Act 1980
(b) the Foreign Limitation Periods Act 1984; or
(c) any other enactment which allows such a change, or under which such a change is allowed.
(2) The court may add or substitute a party only if –
(a) the relevant limitation period was current when the proceedings were started; and
(b) the addition or substitution is necessary.
(3) The addition or substitution of a party is necessary only if the court is satisfied that –
(a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party;
(b) the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or
(c) the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party."
"19.5 (1) This rule applies to a change of parties after the end of a period of limitation under
(a) the Limitation Act 1980;
(b) the Foreign Limitation Periods Act 1984;
(c) section 190 of the Merchant Shipping Act 1995;
(d) any other statutory provision."
"…I would order a substitution of parties in all the circumstances, particularly given the fact that the same solicitors acted for the new landlords and the old landlords, and were involved in the whole process."
"The application was made promptly. There is no suggestion that failure was intentional and it was explained that it was simply that the solicitor failed to spot or to remember that the landlord had changed, the earlier notices having been issued under the old landlord. There is a good explanation for that failure in that sense. There is no suggestion that the party in default has not complied with other rules. It is quite clear that the failure to comply was caused not by the party but his legal representative. There is no suggestion that any trial date or likely trial date is going to be prejudiced if relief is given."
CPR 19.5 applied to this case
Lord Justice Clarke: