IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE GRENFELL)
B e f o r e :
LADY JUSTICE ARDEN
|FAZILATUN NESSA HAQ|
|- v -|
|JOHN NEVILLE SINGH|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0207 421 4040
Fax: 0207 831 8838
Official Shorthand Writers to the Court)
MRS JANE GIRET QC (Instructed by Messrs Stewarts, London, WC2A 3LW) appeared on behalf of the Respondent
Crown Copyright ©
"(1) This rule applies where -
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired ...
(4) The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings were started or has since acquired.
(Rule 19.4 specifies the circumstances in which the court may allow a new party to be added or substituted after the end of a relevant limitation period)."
(1) The claimant had no title to sue before the assignment.
(2) There was no change of capacity. He relies on Robinson v Unicos Property Corporation Limited  1 WLR 520. In that case, the plaintiffs originally sued as individuals, but later took an equitable assignment and sought to amend to sue as assignees after the limitation period expired. The question was whether the plaintiffs were making a new claim. The Court of Appeal held that they were not making a new claim. Holroyd Pearce LJ, with whom Harman and Davies LJJ agreed, said in the course of his judgment:"Nor are [the plaintiffs] suing in a different capacity. Although they now wish to claim by virtue of their right as equitable assignees to the benefits of the principal to the original contract, they still sue in their personal capacity as principals through the same agency on the contract albeit through an assignment of the benefit to them." (as 526).
(3) The passage in Mulkerrins relied on by the judge is distinguishable. It was obiter. It was not clear whether full argument had been addressed. CPR 17.4(4) could not apply in that case because limitation was not an issue. Accordingly the Court of Appeal might simply have taken the view that it was much better to allow an amendment to avoid circuity of proceedings.
(4) CPR 17.4 is concerned with changes in capacity as where a person suing in his own right wishes to amend the statement of case so as to sue in a representative capacity, for example as an executor, administrator, or on behalf of the members of a Lloyd's syndicate.
(5) In Ingall v Moran  1 KB 160, the plaintiff purported to sue in a representative capacity as administrator of his son's estate but did not obtain letters of administration until after the expiration of the limitation period. His claim was struck out. The suggestion in the notes to the Civil Procedure 2001 at 17.4.6, that CPR 17.4(4) would now remove the difficulty in this case, was incorrect (on Mr Evans' submission) since the plaintiff had purported to sue as administrator from the outset. However, Mr Evans accepts that the true position may be that in Ingall v Moran the plaintiff should be treated as having sued in an individual capacity because he did not have a representative capacity in fact.
(6) The courts should construe CPR 17.4(4) narrowly so as to avoid abuse. If it is construed widely, a person may be able to start proceedings without any title to the relevant causes of action and then seek assignments from the people entitled to the causes of action after the expiration of the limitation period. This would be undesirable. (7) Any amendment would now be outside the limitation period and so should not be permitted, because if permitted the amendment would date back to the commencement of the proceedings, thus depriving the defendants of their limitation defence.
(8) It is no objection to the refusal of leave to amend that the defendants did not raise this point until August 2000. If they had raised it in their original defence, it is unlikely that any action would have been taken by the claimant within the limitation period.
(i) The respondent is entitled in equity to any personal damages that may be obtained in this action; Mulkerrins v PriceWaterhouse Coopers, above.
(ii) CPR 17.4(4) is not limited to administrators and executors.
(iii) The Robinson case was dealing with the separate question of whether there was a new claim and has no bearing on the appeal in this case.
(iv) If there were to be any abuse such as is suggested by Mr Evans in his submissions, this can be addressed by the Court's discretion under CPR 17.4(4). In addition if the amendment involves the addition of a new claim, the concluding words of CPR 17.4(4) would apply.
(v) For the purposes of CPR 17.4(4), capacity to sue includes ownership of the legal title to a cause of action.
"(4) Rules of court may provide for allowing a new claim to which subsection(3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.
(7) Subject to subsection (4) above, rules of court may provide for allowing a party to any action to claim relief in a new capacity in respect of a new cause of action notwithstanding that he had no title to make that claim at the date of the commencement of the action.
This subsection shall not be taken as prejudicing the power of rules of court to provide for allowing a party to claim relief in a new capacity without adding or substituting a new cause of action."
"Amendment to change capacity of party
[the committee first dealt with a point concerning actions against deceased persons, with which we are not concerned]
"5.14 The second case arises when it is sought to alter the capacity of a party so that he can sue as administrator of a deceased person's estate. R.S.C. Order 20, rule 5 enables the court to allow a "post-limitation" amendment to alter the capacity of a party who is also an executor, because the executor's title relates back to the death of the deceased. But this rule does not cover a party who is also an administrator, since an administrator's title dates only from the grant of representation. The result is that, for example, a widow who is not an executrix and who sues in her personal capacity as a dependant under the Fatal Accidents Act cannot, if she obtains a grant of administration after the expiry of the limitation period, amend her writ so as to claim also as administratrix on behalf of the estate.
5.15 It would not be within our terms of reference to consider whether this distinction between executors and administrators should be abolished for the purposes; indeed, we can see that there might be serious objection to such a course. We do, however, think that the particular case of the widow/administratrix illustrates a potential defect in the current law and that it should be remedied. The rules we have referred to do, we are advised, go as far as the Rule Committee considered permissible under the existing substantive law. We go into this question in more detail in the context of new parties, at paragraphs 5.22 to 5.29 below, and we therefore recommend that the rule-making power should be extended to allow the capacity in which a party sues to be amended after the limitation period has expired, so as to enable him to sue as administrator, notwithstanding that, at the date the proceedings were instituted, he could not have sued as such."
"47. A plaintiff should be able to amend his pleadings out of time so as to sue in another capacity (including that of an administrator), and the rule making powers of the Supreme Court and County Rule Committee should be extended for this purpose (paragraph 5.15)."
"(3) If the claimant is suing in a representative capacity, the claim form must state what that capacity is.
(4) If the defendant is sued in a representative capacity, the claim form must state what that capacity is."
"You must provide the following information about yourself and the defendant according to the capacity in which you are suing and in which the defendant is being sued. When suing or being sued as:-
All known forenames and surname, whether Mr, Mrs, Miss, Ms or other (eg Dr) and residential address (including postcode and telephone number) in England and Wales. Whether the defendant is a proprietor of a business a partner in a firm or an individual sued in the name of a club or other unincorporated association, the address for service should be the usual or last known place of residence or principal place of business of the company, firm or club or other unincorporated association.
Where the individual is:
under 18 write '(a child by Mr Joe Bloggs his litigation friend)' after the name. If the child is conducting proceedings on their own behalf write '(a child)' after the child's name.
a patient within the meaning of the Mental Health Act 1983 write ('by Mr Joe Bloggs his litigation friend)' after the patient's name.
trading under another name you must add the words 'trading as' and the trading name eg 'Mr John Smith trading as Smith's Groceries'.
suing or being sued in a representative capacity you must say what that capacity is eg 'Mr Joe Bloggs as the representative of Mrs Sharon Bloggs (deceased)'.
suing or being sued in the name of a club or other unincorporated association add the words 'suing/sued on behalf of' followed by the name of the club or other unincorporated association.
a firm enter the name of the firm followed by the words 'a firm' eg 'Bandbox - a firm' and an address for service which is either a partner's residential address or the principal or last known place of business.
a corporation (other than a company) enter the full name of the corporation and the address which is either its principal office or any other place where the corporation carries on activities and which has a real connection with the claim.
a company registered in England and Wales enter the name of the company and an address which is either the company's registered office or any place of business that has a real , or the most, connection with the claim eg the shop where the goods were bought.
an overseas company (defined by s744 of the Companies Act 1985) enter the name of the company and either the address registered under s691 of the Act or the address of the place of business having a real, or the most, connection with the claim."
"The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings were started or has since acquired."
"If the claimant is claiming in a representative capacity, the claim form must state what that capacity is."
"Nor are they suing in a different capacity. Although they now wish to claim by virtue of their right as equitable assignees of the benefits of the principal to the original contract, they still sue in their personal capacity as principals through the same agency on the contract albeit through an assignment of the benefit to them."