England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LEEDS DISTRICT REGISTRY

		The Court House Oxford Row Leeds LS1 3BG
		6 May 2010

Judge Behrens :

1. Introduction

1. This is an appeal (permission having been given during the course of the hearing) against a decision of DJ Glentworth made on 21^st January 2010 whereby she permitted GE Money Mortgages Limited ("Money Mortgages") to be substituted as the Claimant in place of GE Money Home Lending Limited ("Money Home Lending"). In addition she allowed Money Mortgages until 25^th January 2010 to file the Particulars of Claim and until 29^th January 2010 to file an Amended Claim Form and an Amended Particulars of Claim. She ordered Money Home Lending to pay the Defendant's costs of the application.
2. The action concerns alleged professional negligence by a surveyor in relation to a valuation report made to a lender in contemplation of a remortgage of domestic property. The lender made a secured loan in reliance on the report. The borrower subsequently defaulted and the property was repossessed and resold. The lender suffered a loss on the resale which it seeks to recover from the surveyor.
3. The original valuation report was dated 23^rd September 2003. It is common ground that the limitation period for bringing this action expired on 22^nd September 2009. Four days before the expiry of the limitation Optima Legal who acts for both Money Mortgages and Money Home Lending issued the Claim Form naming Money Home Lending as the Claimant. As will appear below there was some confusion over service but Optima Legal did not intend to serve the Claim Form immediately. It now appears that Money Home Lending was not the lender and that the proceedings should have been brought in the name of Money Mortgages.
4. On 12^th January 2010 Optima Legal applied on a without notice basis to DJ Lord to substitute Money Mortgages as the Claimant. DJ Lord refused to deal with the matter on a without notice basis but listed it for a hearing before DJ Glentworth on 21^st January 2010. On 18^th January 2010 Optima Legal issued a further application to extend the time for service of the Particulars of Claim. A considerable amount of evidence was admitted in support of the application including a witness statement signed on 20^th January 2010. DJ Glentworth had very little time to deal with the application (about 45 minutes). She had skeleton arguments from both Counsel. Despite the late flurry of evidence from Optima Legal and the relative short notice for the application she refused to admit a letter and enclosures which the Defendant wanted to bring to her attention. It is to her credit that she managed to deal with the matter in such a short time. As already noted she granted both applications. In her judgment she adopted the arguments that Miss Linklater had put forward in her skeleton argument.
5. Mr André seeks to appeal the decision on a number of grounds. His main ground of appeal is that DJ Glentworth should not have allowed the substitution of a new party after the expiry of the limitation period for the claim. As a subsidiary ground he contends that DJ Glentworth was wrong to refuse to admit the documents that he wished to adduce. In the event that the appeal is allowed he seeks summary judgment against Money Home Lending on the ground that Money Home Lending plainly has no cause of action against the Defendant.
6. Miss Linklater seeks to uphold the decision of DJ Glentworth substantially on the grounds she relied on below. Although she did not formally concede the point, Miss Linklater did not seriously contend that Money Home Lending had a cause of action against the Defendant. It follows that if substitution is refused the claim has no realistic prospects of success.
7. At the hearing of the appeal I admitted without objection further evidence from each side both in relation to the material that Mr André had wished to adduce before DJ Glentworth and in relation to subsequent events.
8. Both Counsel prepared detailed written submissions and referred me to authority. In the result the hearing before me lasted for the best part of a day after which I reserved judgment. I am in any event grateful to both Counsel for the considerable assistance they have given me in what is, to my mind, a by no means straightforward matter.

2. The facts

9. There is in fact very little dispute as to the facts relevant to this application. It is, however, necessary to set them out in more detail than the very brief summary already set out.

2.1 The Valuation and Loan

10. On 23^rd September 2003 Jamie Barnes a surveyor acting on behalf of the Defendant completed a valuation report on 217 York Road, Southend on Sea pursuant to instructions from Esurv. According to the report the property was a 4 bedroomed detached house in a good location close to the sea front in typical condition for its age. It was valued at £250,000. The report was addressed to Igroup Limited, its subsidiaries and associated companies, companies in management, successors and assignees any of whom were entitled to rely on it.
11. On 24^th (or 26^th) September 2003 Igroup Mortgages Ltd lent to Miss Daniels £216,000 pursuant to the terms of an interest only credit agreement. On the same day Miss Daniels duly executed a Mortgage Deed in favour of Igroup Mortgages Ltd charging the property with repayment of the sums due under the credit agreement.

2.2 Repossession and sale

12. The property was repossessed on 22^nd June 2005 and subsequently re-sold on 23^rd August 2006 for £192,000. It is now plain from the contract for sale and the TR2 that the seller was Money Mortgages.
13. In the course of her submissions Miss Linklater drew to my attention documents that suggest first that York road is a "red light district", second that shortly before the repossession there was a murder in a neighbouring house and the condition of the house in 2005 was poor.

2.3 Corporate Structures

14. A Company search for Money Mortgages shows that it was incorporated on 14^th May 1999 and has changed its name on a number of occasions. On 16^th May 2000 it changed its name from Igroup Finance Limited to Igroup Mortgages Limited. On 3^rd October 2005 it changed its name to its present name of GE Money Mortgages Ltd. It accordingly follows that Money Mortgages was indeed the Company that granted the loan to Miss Daniels and which subsequently resold the property.
15. According to Mrs Broadley (who had day to day conduct of the matter on behalf of Optima Legal) Igroup Mortgages Ltd (and thus Money Mortgages) is a subsidiary of IGroup Ltd. Money Home Lending acquired Igroup Ltd in 2001. Thus Money Mortgages is in fact a sub-subsidiary of Money Home Lending.

2.4 Pre-action correspondence

16. Mrs Broadley received instructions from the legal team at Money Home Lending to investigate a possible claim against the Defendant on about 30^th June 2009. This was, of course, over 5 years from the valuation and nearly 3 years from the resale. No explanation has been put forward for this delay.
17. On 20^th July 2009 Optima Legal wrote to the Defendant for the attention of Jamie Barnes intimating the possibility of a claim. The letter sent a copy of the valuation and identified the property as being 217 York Road, Southend on Sea. It gave details of the resale value and the alleged loss. It identified the lender (wrongly) as Money Home Lending.
18. On 30^th July 2009 Optima Legal obtained a retrospective valuation for the property. It is not necessary to refer to it in any detail save to note that it suggested that the highest "non-negligent" valuation in 2003 would have been in the region of £230,000.
19. On 2^nd September 2009 Optima Legal sent a protocol letter of claim to the Defendant for the attention of Jamie Barnes. The letter set out the background facts in detail correctly identifying the property, the valuation, the loan, the repossession and the resale. It enclosed copies of the original valuation, the retrospective valuation and possession valuations. It alleged negligence and included a calculation of loss. It pointed out that the limitation period was due to expire on 21^st September 2009 and indicated that a protective claim would be issued. It identified the lender (wrongly) as Money Home Lending.
20. On 17^th September 2009 the complaints resolution manager of the Defendant acknowledged receipt of the letter of 2^nd September 2009. She stated that she was taking instructions and would be in a position to respond in due course.

2.5 The Claim Form

21. The Claim Form was issued on 18^th September 2009. It (wrongly) named Money Home Lending as the Claimant. It correctly named H C Wolton & Sons Ltd as the Defendant. The endorsement on the Claim Form was in the following terms:

The Claimant claims damages and interest for breach of retainer and negligence arising out of the Claimant's reliance upon the mortgage valuation on 22^nd September 2003 ("the valuation") in respect of Lower Ground Floor Flat, 14 Sevington Street, London W9 2QN ("the property") for the purpose of a mortgage advance of £216,000 made by the Claimant on 26 September 2003 ("the advance") to Miss P Daniels ("the borrower"). The property formed the Claimant's security for the advance. The valuation prepared by the Defendant negligently over-valued the property. The borrowers defaulted on the mortgage, the property was repossessed and the Claimant has suffered loss on re-sale of the property.

22. It will be seen that it summarises the nature of the claim accurately. It identifies the borrower accurately. It gives the correct date for the valuation report. It identifies the amount of the advance. However it misidentifies the property by referring to a completely different property in London W9 and (of course) gets the name of the Claimant wrong. It also (though this is probably irrelevant) refers to the borrower in the plural. Not perhaps the finest piece of work by Optima Legal.

2.6 Service of the Claim Form

23. Under CPR 6.4(1)(b) the Court will serve the Claim Form except where the Claimant notifies the court that the Claimant wishes to serve it. However if the Court is required to serve the Claim Form the Claimant is, under CPR 6.4(3) to leave a copy with the Court for service. There is some confusion as to whether any such notification was given to the Court when Optima Legal attended court on 16^th September 2009. It appears that a copy of the Claim Form was left with the Court because the Court purported to serve it on the Defendant.
24. On 18^th September 2009 the Court sent to Optima Legal a notice of issue which indicated that the court had sent the Claim Form to the Defendant by first class post on 18^th September 2009 and that it would have been deemed served on 22^nd September 2009. It stated that the Defendant had until 6^th October 2009 to reply.
25. On 22^nd September 2009 Optima Legal wrote to the court stating that when the Claim Form was issued the court was informed that it must not be served on the other party as Optima Legal would serve it together with the Particulars of Claim at the appropriate time. Optima Legal invited the Court to amend the court file in order that the management of the case would not be effective until it had had the opportunity to serve the Claim Form with the Particulars of Claim within 4 months from the date of issue.
26. On the same day Optima Legal wrote to the Defendant stating that a protective writ had been issued and that the Court had served it in error. The letter identified Money Home Lending as the Claimant and 217 York Road, Southend on Sea as the property. It requested the return of the Claim Form so that it could be served with the Particulars of Claim within the relevant time period (4 months from the date of issue).
27. On 29^th September 2009 the Defendant wrote to Optima Legal noting the position but stated that the Claim Form had not been received.
28. The matter was referred to DJ Giles who made an order on 5^th October 2009 extending the time for the filing and service of the Particulars of Claim to 4pm 18^th January 2010. The order notified the Claimant that it could apply to vary or set aside the order. No such application was made. It seems that the order was not served on the Defendant.
29. Miss Linklater developed a submission with reference to CPR 7.4(2) and 7.5(1) (as amended) that she would in fact have been entitled to serve the Particulars of Claim 2 or 3 days after 18^th January 2010.
30. It is not necessary for me to rule on this submission but it provisionally appears to me to be wrong for 2 reasons. First even if (as appears to be the case) the Claim Form was not received by the Defendant it was still posted by the Court and deemed to be served in accordance with the rules. Thus DJ Giles' order was necessary to extend the time until 18^th January 2010. Second DJ Giles' order was an order of the court and there was no application to set it aside.

2.7 Correspondence in October 2009

31. On 7^th October 2009 Berrymans Lace Mawer wrote to Optima Legal stating that they had been instructed on behalf of the Defendant. The letter asked Optima Legal to confirm whether proceedings had been issued, and asked for copies of the underwriting, repossession and marketing file.
32. On 19^th October 2009 Optima Legal enclosed the underwriting and the repossession file. Amongst the documents enclosed were the Credit Agreement and the Mortgage Deed both of which identified the lender as IGroup Mortgages Ltd. Furthermore the final document sent (the Redemption Statement) identified the operator as Money Mortgages.
33. It is thus plain that there were documents in Optima Legal's possession in October 2009 which might have led them to realise that the lender was Money Mortgages and not Money Home Lending. Equally if Mrs Broadley had raised the matter specifically with the legal team at Money Home Lending she is likely to have been told that the lender was Money Mortgages and not Money Home Lending.

2.8 Discovery of the mistake.

34. On or about 6^th January 2010 Mrs Broadley received further documentation from the legal team at Money Home Lending. That documentation included the Transfer (TR2) in respect of the sale by Money Mortgages as mortgagee in possession. On making further enquiries Mrs Broadley was satisfied by 12^th January 2010 that Money Mortgages should have been the Claimant in the proceedings.

2.9 Events leading up to the hearing before DJ Glentworth

35. On 12^th January 2010 Mrs Broadley made a without notice application to DJ Lord in an attempt to substitute Money Mortgages as the Claimant. It was supported by a very short witness statement from her setting out the mistake. In my view DJ Lord was plainly correct in refusing to deal with the matter on a without notice basis.
36. Time was, of course, short. Mrs Broadley did not believe the Claim Form had been served. The Particulars of Claim were due by 18^th January 2010. However it has to be borne that the problem was entirely of Mrs Broadley's own making. She elected to wait until 3 days before the limitation period expired; she then elected to wait another 4 months before purporting to serve the Claim Form and Particulars of Claim.
37. On 13^th January 2010 Mrs Broadley issued the application for substitution. It was listed for hearing on 21^st January at 15.40. On 14^th January 2010 she wrote to Berrymans Lace Mawer enclosing the application and asking them to consent to it being brought forward to 15^th January 2010. She had by that time appreciated that she could not sign the Statement of Truth on the Particulars of Claim knowing, as she did, that Money Home Lending were the wrong Claimant.
38. On 15^th January 2010 Mrs Broadley served the Claim Form on Berrymans Lace Mawer. In the covering letter she stated that she was intending to make a separate application to extend the time for service of the Particulars of Claim.
39. The application to extend the time for the service of the Particulars of Claim was in fact issued on 18^th January 2010 and was supported by another short witness statement from Mrs Broadley. In the witness statement Mrs Broadley made the point that she could not sign the statement of truth on the Particulars of Claim until after Money Mortgages had been substituted as the Claimant.
40. On the same day (18^th January 2010) Mrs Broadley sent to Berrymans Lace Mawer two drafts of a Particulars of Claim one with Money Mortgages and the other with Money Home Lending as the Claimant. The Particulars of Claim in respect of Money Home Lending plainly does not disclose a cause of action as it merely refers to the applications to substitute and extend time.
41. On 20^th January 2010 Mrs Broadley prepared a further somewhat longer witness statement. In that witness statement she set out that she had received documentation from her client on 6^th January 2010 and that she had then realised that the wrong Claimant had been named. The witness statement made no mention of the documents in her possession before that date. It is perhaps not surprising that Berrymans Lace Mawer wished to bring the letter of 19^th October 2009 and its enclosures to the attention of the District Judge. In the short time between the receipt of 20^th January 2010 witness statement and the hearing before DJ Glentworth Berrymans Lace Mawer did not prepare a witness statement.

2.10 The hearing before DJ Glentworth

42. As already noted the hearing took place at the end of DJ Glentworth's list on 21^st January 2010. In my view it is very much to DJ Glentworth's credit that she was willing to hear it at all at that time. She had before her the two applications and 3 witness statements from Mrs Broadley to which I have already referred. Both sides were represented by Counsel – the same Counsel who appeared before me. Miss Linklater had filed a 5 page skeleton argument in which she referred to CPR 19.5(3) and (in a footnote) to Adelson's case. That skeleton argument reached DJ Glentworth in good time and she had read it. Mr André also filed a skeleton argument and chronology. DJ Glentworth had not seen this in advance but read it during the hearing. It was 4 pages long. It also referred to CPR 19.5(3) and to two authorities – the Adelson case and the Lockheed case. It made a number of submissions as to why substitution should be refused. At the hearing Mr André attempted to introduce the letter of 19^th October 2010 but DJ Glentworth refused to consider it as it was not exhibited to a witness statement. It may be that Mr André should have applied for an adjournment but he did not. After submissions DJ Glentworth gave a short judgment. She referred to the submissions that were made by each side and decided to grant the applications. In doing so she expressly adopted the reasoning set out in Miss Linklater's skeleton argument. As already noted the whole hearing including reading Mr André's skeleton argument lasted about 45 minutes.

2.11 Subsequent events

43. On 25^th January 2010 Optima Legal served the Amended Claim Form on Berrymans Lace Mawer. There were 2 amendments. First Money Mortgages was substituted as the Claimant. Second 217 York Road, Southend on Sea was substituted as the property. It also served the Particulars of Claim in the form that had been settled by Miss Linklater.
44. On 15^th February 2010 Berrymans Lace Mawer filed a Notice of Appeal on behalf of the Defendant. In summary 3 points are taken. First it is said that this was a mistake as to identity and not as to name. In those circumstances DJ Glentworth was wrong, in the light of the authorities to allow substitution of Money Mortgages as the Claimant. Second it was wrong to permit the amendment of the name of the property when there was no application so to amend before her. Third it was wrong of DJ Glentworth to exclude the letter of 19^th October 2010 in response to the assertions in the very late witness statement of Mrs Broadley dated 20^th January 2001. In support of the procedural ground Mr Ekstein, a solicitor employed by Berrymans Lace Mawer with day to day conduct of the matter filed a witness statement pointing out the shortness of time between the receipt of the witness statement and the hearing and exhibiting all of the documents which were sent to Berrymans Lace Mawer on 19^th October 2010
45. In response to this Optima Legal filed a Respondent's Notice on 1^st April 2010 and two further witness statements dated 1^st and 15^th April 2010. In the Respondent's Notice Money Mortgages seeks to rely on the contents of the draft Particulars of Claim that had been served prior to the hearing before DJ Glentworth. In the witness statement of 1^st April 2010 Mrs Broadley exhibited the documents she received on 6^th January 2010 which alerted her to the mistake in respect of the name of the Claimant. The witness statement of 15^th April 2010 confirms the service of the draft Particulars of Claim with Money Mortgages as the Claimant. As already noted there was no objection to the admission before me of the three additional witness statements.

3. Substitution

3.1 The CPR

46. The application to substitute is brought under CPR 19.5 which, so far as relevant provides:

CPR 19.5(2) provides that:

"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."

19.5(3) provides that:

"The addition or substitution of a party is necessary only if the court is satisfied,

(a) the new party is to be substituted for a party who is named in the claim form in mistake for the new party.

(b) the claim cannot be properly 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 and/or a bankruptcy order made against him, and his interests or liabilities asked of the new party."

3.2 The authorities

47. There have been a large number of authorities on this area of the law. Counsel were agreed that the current starting point is the decision of the Court of Appeal in Adelson v Associated Newspapers [2008] 1 WLR 585. In that case the Court of Appeal in the judgment of the court handed down by the then Lord Chief Justice, Lord Phillips, sought to clarify what the court described in paragraph 5 as "a difficult area of procedural law". The decision contains a full review of the relevant authorities and of the test to be applied. Furthermore in the recent decision in Lockheed Martin Group v Willis Group Ltd [2009] EWHC 1436 (QB) Beatson J analysed the decision in Adelson.
48. As Beatson J pointed out the court had regard to the predecessor of CPR, Rule 19.5, Order 20 r 5 because (see paragraph 47 of the judgment) the court considered that the new rules were intended to replicate the provisions of Order 20 r 5.
49. In paragraph 29 of the judgment the court pointed out:

Most of the problems in this area arise out of the difference, sometimes elusive, between an error of identification and an error of nomenclature. An error of identification will occur where a claimant identifies an individual as the person who has caused him an injury, intends to sue that person, describes him in the pleadings by the correct name, but then discovers that he has identified the wrong person as the person who has injured him. An error of nomenclature occurs where the claimant identifies the correct person as having caused him the injury, but describes him in the pleadings by the wrong name.

50. The Court then analysed the authorities under Order 20 r 5 including Mitchell v Harris Engineering [1967] 2 QB 703, Evans v Charrington [1983] 1 QB 810 and The Al Tawwab ("the Sardinia Sulcis") [1991] 1 LL R 201 which was important because it involved a mistake in the name of the Claimant and because it laid down a test that had been followed. The test is derived from the judgment of Lloyd LJ at p 205 -6:

"The first point to notice is that there is power to amend under the rule even though the limitation period has expired: see O.20, r. 5(2). The second point is that there is power to amend, even though it is alleged that the effect of the amendment is to add a new party after the expiration of the limitation period. But the Court must be satisfied (1) that there was a genuine mistake, (2) that the mistake was not misleading, (3) that the mistake was not such as to cause reasonable doubt as to the identity of the person intending to sue, and (4) that it would be just to allow the amendment."

51. He went on to set out what has been known as the Sardinia Sulcis test:

"In one sense a plaintiff always intends to sue the person who is liable for the wrong which he has suffered. But the test cannot be as wide as that. Otherwise there could never be any doubt as to the person intended to be sued, and leave to amend would always be given. So there must be some narrower test. In Mitchell v. Harris Engineering the identity of the person intended to be sued was the plaintiff's employers. In Evans v. Charrington it was the current landlord. In Thistle Hotels v. McAlpine the identity of the person intending to sue was the proprietor of the hotel. In The Joanna Borchard it was the cargo-owner or consignee. In all these cases it was possible to identify the intending plaintiff or intended defendant by reference to a description which was more or less specific to the particular case. Thus if, in the case of an intended defendant, the plaintiff gets the right description but the wrong name, there is unlikely to be any doubt as to the identity of the person intended to be sued. But if he gets the wrong description, it will be other wise."

52. In paragraph 43 the Court set out its conclusions as to the test to be applied in Order 20 r 5:

i) The mistake must be as to the name of the party in question and not as to the identity of that party. Such a mistake can be demonstrated where the pleading gives a description of the party that identifies the party, but gives the party the wrong name. In such circumstances a 'mistake as to name' is given a generous interpretation.

ii) The mistake will be made by the person who issues the process bearing the wrong name. The person intending to sue will be the person who, or whose agent, has authorised the person issuing the process to start proceedings on his behalf.

iii) The true identity of the person intending to sue and the person intended to be sued must be apparent to the latter although the wrong name has been used.

iv) Most if not all the cases seem to have proceeded on the basis that the effect of the amendment was to substitute a new party for the party named.

53. The Court then went on to consider CPR 17.4 and 19.5. In so doing it disapproved of the reasoning in three cases – Gregson v Channel 4 [2000] CP Rep 60, Morgan Est v Hanson Concrete [2005] 1 WLR 2557 and Weston v Gribben [2006] EWCA Civ 1425.
54. The Court's ultimate conclusions on the law were set out in paragraphs 55 - 57 of the judgment. In paragraph 55 the court set out CPR 19.5(3)(a) and made two points:

It is clear from this language that the person who has made the mistake must be the person responsible, directly or through an agent, for the issue of the claim form. It is also clear that he must be in a position to demonstrate that, had the mistake not been made, the new party would have been named in the pleading.

55. In paragraph 56 the Court considered the nature of the mistake:

This Court has held that the mistake must be as to the name of the party rather than as to the identity of the party, applying the generous test of this type of mistake laid down in Sardinia Sulcis.

56. In paragraph 57 the Court made some general observations:

Almost all the cases involve circumstances in which (i) there was a connection between the party whose name was used in the claim form and the party intending to sue, or intended to be sued and (ii) where the party intended to be sued, or his agent, was aware of the proceedings and of the mistake so that no injustice was caused by the amendment. In SmithKline, however, Keene LJ accepted that the Sardinia Sulcis test could be satisfied where the correct defendant was unaware of the claim until the limitation period had expired. We agree with Keene LJ's comment that, in such a case, the Court will be likely to exercise its discretion against giving permission to make the amendment.

3.3 Discussion

57. In my view there is force in Mr André's criticism that DJ Glentworth should have allowed him to refer to and rely on the letter of 19^th October 2009 and its enclosures. It was documentary evidence that had originated from Optima Legal. The fact that it was not exhibited to a witness statement was – in the circumstances – a mere formality. Berrymans Lace Mawer had been given very little time to prepare for the application and had had to deal with 3 witness statements from Mrs Broadley one of which was served only 24 hours before the hearing. If, as a result of the admission of the letter Mrs Broadley wanted to deal with the matters raised the application should have been adjourned. It has to be remembered that the problems in this case were entirely caused by the Claimant's/Optima Legal's decisions not to issue proceedings until very shortly before the expiry of the limitation period and not to serve them (in so far as, contrary to my view, they had not been served) until right at the end of the 4 month period allowed for service.
58. However, the failure to admit the letter is by no means decisive of the appeal. As already noted the letter of 19^th October 2009 and its enclosures have been in evidence before me as has Mrs Broadley's response to it.
59. I turn then to consider the case in the light of the Court of Appeal guidance in Adelson.

Was there a Mistake?

60. It seems clear that Mrs Broadley made a mistake in issuing proceedings in the name of Money Home Lending and that in doing so she believed that Money Home Lending had lent the £216,000 to Miss Daniels. There is no reason to doubt Mrs Broadley's evidence on this point. It is corroborated by the pre-action correspondence of 20^th July 2009 and 2^nd September 2009 both of which refer to the money being lent by "our client" defined as Money Home Lending.
61. In my view the letter of 19^th October 2009 does not affect this. The enclosures that were sent with the letter show that there was material which might have led Mrs Broadley to a train of enquiry which would have established that Money Home Lending was the wrong Claimant. In fact there is no reason to doubt Mrs Broadley's evidence that she did not pick up on that material and did not realise that there was a problem until she received the e-mail from her principal on 6^th January 2010.
62. It may well be that Mrs Broadley ought to have realised that the lender was not Money Home Lending before she did. Indeed it could be argued that she ought to have discovered this before the Claim Form was issued. However I have little difficulty in accepting that she did not in fact so realise and that she made a genuine mistake. I am equally satisfied that if she had so realised she would have issued the Claim Form in the name of Money Mortgages.

Was the mistake a mistake as to identity or as to name.

63. It will be recalled that the test proposed by the Court of Appeal was as follows:

Such a mistake can be demonstrated where the pleading gives a description of the party that identifies the party, but gives the party the wrong name. In such circumstances a 'mistake as to name' is given a generous interpretation.

64. This, of course, follows closely the judgment of Lloyd LJ in the Sardinia Sulcis to which I have referred.
65. I have set out the Indorsement on the Claim Form in full above. As can be seen it does give a description of the Claimant as the person who lent £216,000 to Miss Daniels on 26^th September 2003. It is true that that the Claim Form misidentifies the address of the property which was the subject of the valuation but that does not affect the fact that there is, in my view an adequate description of the Claimant in the Claim Form to identify it.
66. In those circumstances it seems to me that this is "a mistake as to name" within the generous interpretation in the Sardinia Sulcis case.

Was the true identity of the person intending to sue and the person intended to be sued apparent to the latter although the wrong name has been used?

67. It will be recalled that the original mortgage valuation was carried out on the instructions of Esurv. It was addressed amongst others to Igroup Ltd, its subsidiaries, associates all of whom were entitled to rely on it. There is nothing in the report that identifies Igroup Mortgages Ltd as the potential lender. There is no evidence before me that in 2003 the Defendant was aware that the lender was Igroup Mortgages Limited as opposed to any other subsidiary or associate of Igroup Ltd.
68. Furthermore the pre-action correspondence would not have assisted the Defendant to identify Money Mortgages as the lender. As already noted both of the pre-action letters described Money Home Lending as the lender.
69. The first time that the Defendant would have been aware of the mistake and the true identity of the Claimant would have been when it received the application and the letter from Optima Legal dated 14^th January 2010.
70. Miss Linklater sought to get round this apparent difficulty by reliance on the Particulars of Claim that she had drafted and which correctly identifies Money Mortgages as the lender. It will be recalled that a draft of the Particulars of Claim was sent to Optima Legal on 18^th January 2010 – that is to say 3 days after Mrs Broadley purported to serve the Claim Form and 3 days before the hearing before DJ Glentworth. Furthermore the Particulars of Claim itself, in identical form to the draft, was formally served on 25^th January 2010 pursuant to DJ Glentworth's order.
71. Miss Linklater drew my attention to various passages in the authorities where the courts had relied on the pleadings to justify the substitution of a party. For my part I have some doubt as to whether reliance on the Particulars of Claim adds anything in the circumstances of this case. It is a document which came into existence after the expiry of the Limitation period and after the mistake had come to light and which was served in draft form during the course of the application for substitution. Plainly by the time the application was heard the Defendant was aware of the mistake. However it seems to me that the Court of Appeal in Adelson was contemplating a period before that.
72. In my judgment the Defendant did not know the true identity of the person intending to sue at any relevant time. Equally (to adapt paragraph 57(ii) of the judgment) it is not a case where the Defendant, or his agent, was aware of the proceedings and of the mistake so that no injustice was caused by the amendment.
73. If, however, I am wrong about this it is plain that the Defendant did not know the identity of the correct Claimant until well after the Limitation period had expired. In those circumstances it seems to me that it is covered by Keene LJ's comment approved by the Court in Adelson that the Court would be likely to exercise its discretion against giving permission to make the amendment. There are no special factors here leading to a different course.

4. Conclusion

74. I have come to the conclusion that DJ Glentworth was wrong to allow the substitution of Money Mortgages and that this appeal should be allowed. In so far as I am differing from DJ Glentworth on matters of discretion I consider that I am entitled to do so firstly because I think she erred in refusing to admit the letter of 19^th October with the result that the evidence before me was much fuller than before her and secondly because she did not express her reasons sufficiently fully to enable it to be seen on what basis she actually exercised any discretion she may have had.
75. It has to be remembered that DJ Glentworth dealt with this application in 45 minutes. I had the benefit a hearing lasting for the best part of a day which included a detailed analysis of the relevant documents and the decision in Adelson. I then had further time in which to prepare this judgment. As I stated earlier in this judgment it is very much to DJ Glentworth's credit that she managed to deal with the application at all in that time.
76. In the result the appeal will be allowed. The application to substitute Money Mortgages as Claimant will be refused and – pursuant to Part 24 – the claim will be struck out.
77. In those circumstances it is not necessary to deal with the application relating to the amendment of the identity of the property as originally set out in the Claim Form.