Landlord and Tenant Act 1954, Part II — Difficulty of correcting a mistake as to the name of the respondents in an application by tenants for a new tenancy — Through a mistake by the tenants’ solicitors the respondent landlords were named in the application to the county court as Charrington & Co Ltd — In fact the reversion had been transferred to Bass Ltd, another company in the Bass Charrington group — Bass Ltd later changed its name to Bass Holdings Ltd — Nobody was misled by the mistake and the applicants’ intention was clearly to name their current landlords, but surprising technical difficulties arose — Court of Appeal itself divided — Scope of RSC, Order 20, rule 5 considered — Mistake could not be corrected by simply adding Bass Holdings Ltd as a party, as the time for making an application for a new tenancy under section 29(3) of the 1954 Act had long since expired — Held, however, by the majority, Waller LJ dissenting, that the conditions required by Order 20, rule 5 were satisfied — Order 20, rule 5 empowered the court to correct the name of a party even though a relevant limitation period had expired — Accordingly the name of Charrington & Co Ltd would be deleted as respondents, leaving Bass Holdings Ltd substituted in that capacity
This was an
appeal from a decision of Judge Baker at Staines County Court. Judge Baker had
given Evans Construction Ltd, the respondents to the present appeal, leave to
join Bass Holdings Ltd as respondents to the application for a new tenancy, but
had given leave to appeal. It was, however, agreed that the real issue before
the Court of Appeal was whether Bass Holdings Ltd could be substituted for
Charrington & Co Ltd as respondents to the application for a new tenancy.
The present appellants were Charrington & Co Ltd, the respondents to the
appeal being Evans Construction Co Ltd.
Richard Salter
(instructed by Loxley, Sanderson & Morgan) appeared on behalf of the
appellants; Michael F Harris (instructed by Horne, Engall & Freeman of
Egham) represented the respondents; Bass Holdings Ltd were not represented and
took no part in the proceedings.
Giving
judgment in favour of allowing the appeal WALLER LJ said: This is an appeal
from a decision of Judge Baker, sitting at Staines County Court, on April 28
1982, when he ordered Bass Holdings Ltd to be joined as second respondents to
an originating application made by Evans Construction Co Ltd for a new lease.
The facts were that by a lease dated August 27 1970 between Evans Construction
Co Ltd, hereinafter called ‘Evans’ and Charrington & Co Ltd, hereinafter
called ‘Charringtons’, Evans became tenants of a piece of land adjoining the
Links Hotel at Ashford, Middlesex, for seven years terminating June 24 1976.
There was a large plan with the lease identifying the land in question. Evans
held over and on April 1 1977 entered into a new lease for three years from
June 25 1976, supplemental to the original lease but between Bass Ltd of High
Street, Burton on Trent, and Evans, reciting that Bass are now entitled to the
reversion but adopting all the conditions of the original lease where
appropriate. Charringtons’ estate department continued to receive the rent.
Evans held over at the termination of the lease.
On September
30 1981 a notice under section 25, terminating the tenancy, was served on
Evans. The notice was in the standard form; it identified the parcel of land by
reference to the original lease and went on:
We
Charrington & Co Ltd, of Anchor House, Mile End, London, E1, as agents for
Bass Holdings Ltd, of High Street, Burton on Trent, Staffordshire, landlord of
the above premises, hereby give you notice terminating your tenancy on the 15th
day of April, 1982.
It required
notification of whether or not the tenant was willing to give possession, to be
given within two months, and went on, saying that an application to the court
for a new tenancy would be opposed, setting out the grounds. It was signed at the
bottom with an illegible signature giving the address: Estate Department,
Charrington & Co Ltd, Anchor House, London, E1.
Evans’
solicitors acknowledged receipt on October 12 1981 and gave notice that their
clients were not prepared to give up possession. On January 19 1982 an
originating application headed: ‘Between Evans Construction Co Ltd, Applicant,
and Charrington and Co Ltd, Respondent’ was made to Staines County Court for
the grant of a new tenancy. The application set out the particulars of the
current tenancy so far as is relevant as follows:
(b) Date of Lease: August 27 1970; (c) Names of
parties to lease or agreement: 1. Charrington and Co Ltd. 2. Evans Construction
Co Ltd. (d) Term granted by lease: 3 years (now holding over). (e) Rent reserved
by lease: £1,500; 5. The name and address of the respondent on whom this
application is intended to be served ‘Charrington and Co Ltd, Anchor House,
Mile End, London, E1.’
On March 10
1982 Charringtons gave notice of intending to apply to have the originating
application struck out, and on March 30 1982 the application was struck out. It
was struck out on the grounds that Charringtons were not the landlords. Evans
appealed to the county court judge, applying for leave to join Bass Holdings
Ltd as second respondent and the judge granted that application on April 28 but
gave leave to appeal.
The argument
before us has not been just to reverse the order of the judge, because it was
submitted by the appellants that the application before the judge was on the
wrong basis and should have been made (as the original notice of appeal had in
fact made it) for the substitution of Bass Holdings Ltd as the respondent in
place of Charringtons. Mr Salter, on behalf of the appellants, accepts that
this is the true issue and we have given leave to the respondents to file
evidence relevant to this issue.
By virtue of
the provisions of Order 8, rules 1 and 1a, and Order 35, rule 1, an originating
application must be served within two months of issue. This application was issued
on January 19 1982 and therefore had to be served before March 19 1982. It was
in fact served on Charringtons within that time, namely February 2. The
application to amend was not made until April 2 or alternatively April 24, and
is therefore out of time. Nevertheless, Order 20, rule 5(2) would allow such an
amendment if it is just to do so.
An application
to correct the name of a party must be made under Order 20, rule 5(3). The
respondents seek to substitute Bass Holdings Ltd for Charringtons, and they
submit this is the correction of a name. We have been referred to a number of
cases where corrections have been made under this rule, but in every case it is
plainly a variation of the name; for example, R S Parker for R J Parker (see Rodriguez
v R J Parker [1967] 1 QB 116), Harris Ltd for Harris (Leeds) Ltd (See Mitchell
v Harris Engineering Co Ltd [1967] 2 QB 703). We were informed that no
case could be found without this feature.
In the present
case there was no mistake as to name. Mr Greenwood in his affidavit frankly
states he thought Charringtons were the landlord. The mistake here was not a
mistake as to name; it was a mistake as to identity. Mr Salter submits that the
words ‘notwithstanding that it is alleged that the effect of the amendment will
be to substitute a new party’ is to cover the case where the alteration is
small, for example an initial, or ‘Leeds’ after ‘Harris’. It was clear who was
intended but it was alleged that it was a new party. If it was intended that it
should be a new party the words ‘it is alleged that’ would be unnecessary. In
my opinion the words ‘correct the name of a party’ do not cover a case such as
the present when there was no mistake as to name but the mistake was to
identity. The words ‘correct the name’ are not apt to cover the case of
changing the party.
That this
conclusion is correct is in my opinion strengthened by considering the
consequences of allowing a change such as that which is sought in this case. No
provision is made under Order 20, rule 5, for reservice. The rules about
service under Order 8, rule 35, are no doubt similar to the principles about
service under Order 6, rule 8, of the High Court Rules. It was held in Jones
v Jones [1970] 2 QB 576 that Order 6, rule 8, was not to be read as
meaning that if a writ had been served on one defendant within the limitation
period it was valid for service on another after the limitation period. If
therefore the new party was a different party from the one already served, that
is to say not where there was a mere name error, it would be necessary in a
case such as the present to make application for an extension of time and then
the strict process under Order 8, rule 35(2), would have to be considered.
The absence of
provisions for reservice under Order 20, rule 5, is, I suggest, because a
mistake in the ordinary case was not misleading and did not cause any reason to
doubt the identity of the person it was intended to sue (see the words of Order
20, rule 5(3); for example, R S Parker for R J Parker or Harris Engineering Ltd
for Harris Engineering (Leeds) Ltd). In the present case the application was
properly served on Charringtons at their registered office address, London E1,
as set out in the notice. If Bass were substituted, the application would have
been served on Bass at their registered office in Burton-on-Trent, also as set
out in the notice. But the rules require service within two months and Order 8,
rule 35(2), provides that time shall not be extended within the currency of the
period; it is only in exceptional circumstances that this provision will be
overridden (see Lewis v Wolking Properties Ltd [1978] 1 WLR 403
and the decision of this court in Robert Baxendale v Davstone
(Holdings) Ltd, CA, July 7 1982).
It is said on
behalf of the tenant that this is a case where the mistake has been induced by
a combination of circumstances in that the original landlords were Charringtons
and when the ownership was changed Charringtons continued to act as the agents
for all purposes. Furthermore, that the section 25 notice was signed on behalf
of Charringtons’ estate department. There is no evidence in this case that
Charringtons and/or Bass Holdings had deliberately conducted their affairs in
order to mislead. These cases where mistakes are made as between landlord and
tenant always cause some hardship, but two commercial companies are concerned
and in the circumstances there are no good reasons for straining the meaning of
the rules. Accordingly, although the course of the argument before us has
proceeded on rather different grounds from the argument before the judge, I
would have allowed this appeal and reversed the order of the learned judge
adding Bass Holdings Ltd as a second respondent and not substitute Bass
Holdings Ltd for Charringtons.
If I had felt
able to take a different view of Order 20, rule 5(3), namely that this was a
change of names and that it was just to allow the change to be made, I would
have agreed that time should be extended as proposed by Donaldson LJ. If it is
just to allow the amendment it would also be just to extend the time.
Giving
judgment dismissing the appeal, DONALDSON LJ said: In 1970 Evans Construction
Co Ltd (‘the lessees’) took a lease from Charrington & Co Ltd of a piece of
land fronting Fairholme Road, Ashford, Surrey, and of various buildings on it
for use in connection with their business. The lease dated August 27 1970 was
for seven years from June 24 1969 and accordingly was due to expire on June 24
1976. However, the Landlord and Tenant Act 1954 applied and the lease was
renewable in accordance with the terms of that Act.
Some time
during the currency of the 1970 lease or shortly thereafter, Charringtons
assigned the reversion to Bass Ltd, another company in the Bass Charrington
group. Bass Ltd subsequently changed their name to Bass Holdings Ltd, but
nothing turns on that. Formal notice may or may not have been given of this
assignment, but Charringtons continued to act in the same way as theretofor,
albeit now as managing agents for the new landlords.
On April 1
1977 (a not inappropriate date in the light of later events) the lessees
entered into a new lease. The landlords were Bass Ltd and the lease recited
that it was supplemental to the original lease dated August 27 1970. It was for
a term of three years from June 25 1976 and so was continuous with the term of
the original lease. The term of this lease expired on June 24 1979, but again
the 1954 Act applied and the lessees held over.
On September
30 1981 Charringtons wrote to the lessees as follows:
Dear Sirs, Land
adjoining the Links Hotel, Ashford. We enclose notice under the provisions
of the Landlord and Tenant Act 1954 and would be pleased if you could sign the
copy and return it in acknowledgement of safe receipt.
The notice
itself was in the standard form. After identifying the land, it continued:
1. We,
Charrington & Co Ltd, of Anchor House, Mile End, London, E1 as agents for
Bass Holdings Ltd of High Street, Burton on Trent, Staffordshire, landlord
(Note 7) of the above-mentioned premises, hereby give you notice terminating
your tenancy on the fifteenth day of April 1982 (Note 1). 2. . . . 3. We would
oppose an application to the court (Note 3) under Part II of the Act for the
grant of a new tenancy on the ground (Note 4) that we intend to carry out
substantial works of demolition and reconstruction to provide additional car
parking facilities at the Links Public House. 4. This notice is given under the
provisions of section 25 of the Landlord and Tenant Act 1954. Your attention is
called to the Notes overleaf.
The form was
signed by an individual whose name is illegible and underneath the signature
there appeared in print ‘(Landlord)’ and below that was typewritten ‘Estate
Department, Charrington & Co Ltd, Anchor House, London, E1.’
The lessees’ solicitors
wrote to Charringtons on October 12 1981, acknowledging receipt of the section
25 notice and informing them that the lessees were not prepared to give up
possession.
Under section
24(1) of the 1954 Act the tenants thereupon became entitled to apply to the
county court for a new tenancy and, in accordance with section 29(3), any such
application had to be made not less than two or more than four months after the
serving of the landlord’s notice. Accordingly, the application had to be
entered with the county court on or before January 30 1982.
In the event
the lessees’ solicitors entered the application with the Staines County Court
on January 19 1982, but unfortunately it contained a number of errors. It named
Charrington & Co Ltd as respondents, it gave the date of the lease as
August 27 1970 (the date of the original lease) instead of April 1 1977 (the
date of the
to the lease, which was true of the original lease but not of the supplemental
lease. In paragraph 5 of the application the name and address of the respondent
on whom the application was intended to be served was given as ‘Charrington
& Co Ltd, Anchor House, Mile End, London, E1.’
On March 10
1982 Charringtons applied to the deputy registrar of the Staines County Court
for the application to be struck out on the grounds that they were not the
applicant’s landlord. This application was successful. The lessees gave notice
of appeal on the grounds that instead of striking out the application, the
learned deputy registrar should have substituted Bass Ltd for Charringtons as
respondents. Later they gave notice of intention to apply to the judge to join
Bass Holdings Ltd as additional respondents.
The matter
came before His Honour Judge Baker who on April 28 1982 gave the lessees leave
to join Bass Holdings Ltd as additional respondents and to make amendments to
the originating application correcting the errors to which I have referred.
Charringtons now appeal, seeking an order that the originating application be
struck out. Bass Holdings Ltd have not appeared.
Bearing in
mind that it is common ground that the statutory form of notice to quit upon
which this application was founded was one rightly given on behalf of Bass Holdings
Ltd who were the landlords, that Charringtons are not the landlords and have no
interest in the property and that there are issues to be decided between the
lessees and Bass Holdings Ltd, but no such issue between the lessees and
Charringtons, I can see no sense in joining Bass Holdings Ltd as additional
respondents. In my judgment, the only question is whether it is possible and
right to substitute the name ‘Bass Holdings Ltd’ for ‘Charrington & Co
Ltd’. A simpler solution would be to make a new application naming Bass
Holdings Ltd as respondents, but this cannot be done as any such application
would be out of time under section 29(3) of the 1954 Act.
The only
possible basis for so amending the name of the respondents is under RSC, Order
20, rule 5. This, so far as material, provides as follows:
(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. (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 person
intending to sue or, as the case may be, intended to be sued.
The lessees
submit that this is a case in which they should be allowed to correct the name
of a party incorrectly named by mistake. This proposition has only to be stated
for it to be apparent that there should be evidence before the court that there
had been a mistake, but there was no such evidence before the county court.
However, leave was given to file an affidavit setting out the circumstances in
which the name of Charrington & Co Ltd came to be used to identify the
respondent to the application and Mr Greenwood, the lessees’ solicitor, has
sworn an affidavit which was filed in the course of the appeal. So far as
material, it is in the following terms:
2. On or
shortly before October 12 1981, I was handed by my legal executive, a Mr
Dolman, a section 25 notice and covering letter dated September 30 1981
addressed to the applicants herein. Mr Evans, the managing director of the
applicants had brought them to my office and instructed Mr Dolman to take all
necessary steps to protect his company’s interests, leaving the entire matter
for me to deal with. 3. I looked at the documents and concluded that my
clients’ landlord was Charrington & Company Ltd. I appreciate now of course
that that was not a conclusion I should have reached. I have since wondered how
I managed to make that mistake. If section 25 notices are given by agents (and
in my experience that is not at all uncommon) that fact is invariably made
clear at the foot of the section 25 Notice where there is provision for the
Landlords’ signature. No such indication is given in this notice. Secondly if
section 25 Notices are given by agents they will usually be given by solicitors
or estate agents. So far as I know Charringtons are brewers. I think I must
have been influenced by those factors. 4. That I did make this mistake is
perfectly clear from a letter I wrote to the clients on October 12 1981 (a copy
of which is now shown to me and marked ‘KGI’) and which I now produce, in which
I describe Charringtons as ‘your landlords’. 5. I needed the lease to complete
the details on the originating application. The lease was apparently with other
solicitors. Meanwhile as time was running on, a draft application was completed
by one of my assistants, adopting my error as to the name of the landlords and
taking the other details from the section 25 Notice itself. The parts left
uncompleted were the answers to paragraphs 2 (d) (e) (f) (g) (j) and paragraph
3. 6. According to the file the leases were received in my offices on January
11 1982. I do not remember seeing them. Certainly, in the office draft of the
originating application the uncompleted paragraphs were filled in by me. They
are in my handwriting, but whether those details were called over to me by my
assistant, or whether I extracted them myself from the second page of the
supplemental lease, I really cannot remember, but whatever the position, I
failed to pick up the fact that Charrington & Co Ltd were not the Landlords.
Whether I was misled by the description of the second lease as ‘supplemental’
(which in my experience is a term usually used in leases where the identity of
the Landlord remains the same) I really cannot now say. 7. So far as I am
concerned I thought Charrington & Co Ltd were my clients’ landlords. I
would not have sent out the originating application to the county court if I
had thought otherwise. I have been in general practice as a solicitor for 28
years. I know that it is the tenants’ current landlord against whom proceedings
should be taken under the 1954 Act. I run a very busy office. I ask the court
to accept that the mistake I made was a genuine one and that I intended on
behalf of my clients to sue the relevant landlords under the Act whom I
mistakenly believed to be Charrington & Co Ltd.
A somewhat
similar problem arose in Beardmore Motors Ltd v Birch Bros [1959]
Ch 298 when the original landlord, Birch Bros Ltd, assigned their reversionary
interest to Birch Bros (Properties) Ltd and the lessees applied for a new
tenancy under the 1954 Act naming Birch Bros Ltd as respondents. By the time
that the error was discovered it was too late to issue a new summons against
Birch Bros (Properties) Ltd. Harman J reluctantly refused to allow any amendment
in the name of the respondent. The basis of his decision was that the
difference in names reflected the different identities of two different
parties, that the applicants had served Birch Bros Ltd and to allow the
amendment would be to substitute a different legal entity as respondent and to
deprive that entity of a vested right not to have to resist an application for
a new lease after the expiration of the time limit prescribed in the 1954 Act.
This was not, in his judgment, a case of misnomer or misdescription. Whether
that decision was right or wrong is immaterial since Order 20, rule 5, did not
exist at the time. However, it may well have prompted the making of Order 20,
rule 5(3).
In Rodriguez
v R J Parker [1967] 1 QB 116 a frontal assault was made on Order 20,
rule 5(3) on the basis that it was ultra vires the Rule Committee. This
failed. On the merits of the application, the claim was one for personal
injuries suffered in a motor accident. The car was owned by R J Parker, but had
been driven by his son, R S Parker. Accordingly the effect of amending the
proceeding by substituting ‘R S’ Parker for ‘R J’ Parker was to substitute one
actual person for another actual person as defendant. Nield J held, at p 139,
that the court had to be satisfied that (1) the mistake sought to be corrected
was a genuine mistake; (2) that the mistake was not misleading or such as to
cause any reasonable doubt as to the identity of the person intended to be sued
and (3) that it was just to make the amendment. He held that all three
conditions were satisfied and gave the necessary leave.
A similar
situation arose in Mitchell v Harris Engineering Co Ltd [1967] 2
QB 703 where there were two companies, Harris Engineering Co Ltd and Harris
Engineering Co (Leeds) Ltd. The plaintiff mistakenly sued ‘Leeds’ and then
applied to strike this word out, thereby altering the name of the defendant to
that of the other company. It was conceded that this would have the effect of
substituting a different party as defendant and would deprive that party of the
benefit of a defence under the Statute of Limitations. Nevertheless, leave to
amend was granted, Russell LJ holding, at p 721, that there had been a genuine
mistake, that the writ was served on the secretary to both companies who could not
have failed to observe that the writ was not intended for the Leeds company.
In applying
Order 20, rule 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
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
landlords under the Act. After all, he was responding on behalf of his lessee
clients to a notice to quit given on behalf of the landlords 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 agents 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 Order 20, rule 5(3), can apply.
However, the
matter does not stop there, because it is not every mistake of this character
which can be corrected under the rules. The applicant for leave to amend has to
satisfy the court that the mistake was not misleading or such as to cause any
reasonable doubt as to the identity of the person intended to be sued. On the
facts of the present case, I do not see how Charringtons or Bass Holdings Ltd,
or anyone else familiar with the surrounding circumstances, could have been
misled or could have had any real doubt as to the identity of the person
intended to be sued. The notice to quit had been given by Charringtons as
managing agents for Bass Holdings Ltd and the application in reply was intended
for Bass Holdings Ltd albeit addressed to Charringtons.
Mr Salter then
advances a somewhat subtle argument. He submits that while the rule may apply
where the error in the name is such that there is or is likely to be someone
else of that name somewhere in the world, it has no application where the name
erroneously used is that of someone else who is connected with the transaction.
This, he says, is why the rule uses the word ‘alleged’ in para (3). The rule is
contrasting a theoretical substitution of A for B with an actual substitution.
I would reject this submission as over subtle. I regard ‘alleged’ in this
context as a short and convenient way of saying ‘notwithstanding that it is
objected that . . .’ and as reflecting and overruling the objection which
prevailed in Beardmore Motors Ltd v Birch Bros (supra) and in Davis
v Elsby Bros Ltd [1961] 1 WLR 170.
There remains
a discretion whether to permit the amendment, for the court must be satisfied
that it is just to do so (see Order 15, rule 5(2)). Suffice it to say that if the
amendment were allowed, Charringtons could have no complaint or regret. So far
as Bass Holdings is concerned, they would regret that they had been deprived of
a wholly adventitious chance of obtaining possession of the land without regard
to the merits of their claim, but I do not regard this as a legitimate
complaint in the circumstances of this case.
There is,
however, one further matter which goes to the exercise of the court’s
discretion in deciding whether or not to allow this amendment. Mr Salter
submits that if the originating application is amended by deleting the name
‘Charrington & Co Ltd’ and substituting ‘Bass Holdings Ltd’, Bass Holdings
Ltd will be able to apply to have it struck out. If this is correct, it would
clearly be wrong to allow the amendment. It is therefore necessary to consider
whether the application would be struck out.
The essence of
Mr Salter’s argument is that (a) an originating application under the Landlord
and Tenant Act 1954 must be served within two months of the date upon which it
was filed or entered with the county court (CCR, Order 40, rule 8 and CCR,
Order 8, rule 35), ie not later than March 19 1982; (b) in the absence of any
agreement to the contrary, service on Bass Holdings Ltd has to be at its
registered office at Burton on Trent (CCR, Order 8, rule 26, and section 437 of
the Companies Act 1948); (c) no such service has been effected; (d) it is now
too late to serve the application upon Bass Holdings Ltd because any order
extending the two-month time-limit must be made before that period, or any
extension of it, has expired and the overall power to extend time-limits under
CCR, Order 13, rule 5, has to be used very sparingly (see Robert Baxendale
Ltd v Davstone (Holdings) Ltd (CA, July 7 1982)).
The essence of
the lessees’ reply, as submitted by Mr Harris, is that (a) the originating
application was served on the only named respondent, Charringtons, within the
two-month period; (b) this validates the application for the purposes of Order
8, rule 35, whatever amendments may thereafter be made; (c) the amended
application will be served in the way in which all amended pleadings are
served, namely on the other party or parties on the record; and (d) the fact
that the amended application has to be served differently from that appropriate
to the unamended application is merely an incident of the form which this
particular amendment would take.
As I see it,
the incorrect naming of a respondent will not necessarily affect service, but
may well do so. In the case of a natural person, the use of correct initials
but a misspelt surname coupled with the correct address for the intended
respondent will probably lead to service upon him. But an error in initials,
other particulars being correct, may well lead to the wrong member of the
family being served and the greater the number of errors the more likely it is
that service will be upon the wrong person. In the case of juridical persons,
the likelihood of the wrong person being served is even greater. I say that
because companies in a group often have similar names and the same address for
their respective registered offices. Service will be by post and process, if
addressed to the wrong member of the juridical family, will inevitably lead to
service on that member rather than on the intended respondent.
While at one
stage I was attracted by the lessees’ argument, I have come to the conclusion
that service on the wrong respondent can never constitute effective service for
the purposes of CCR, Order 8, rule 35.
In Jones
v Jones [1970] 2 QB 576 this court held that service of a writ on one
defendant within the 12-month period of its validity did not prevent the writ
ceasing to be valid quoad a second defendant, who was not served within that
period. If, therefore, Charringtons are to be regarded as a separate entity
from Bass Holdings Ltd, service on Charringtons will not preserve the validity
of the originating application quoad Bass Holdings Ltd. If, on the other hand,
the true view is that Charringtons by amendment becomes Bass Holdings Ltd, a
further question arises, namely, when the transformation occurred.
This problem
was considered in Liff v Peasley [1980] 1 WLR 781, albeit in the
context of adding a defendant. The competing theories of ‘relation back’ to the
date of the issue of the writ and of ‘no useful purpose’, ie no relation back
(the joinder being effective only from the date of the order giving leave for
the additional defendant to be joined), were studied in depth by Brandon LJ (as
he then was). Which is the true view is clearly one of great difficulty, but
for present purposes I do not think that it matters which is right. If there is
a ‘relation back’ and the effect of correcting ‘Charringtons’ to ‘Bass Holdings
Ltd’ is to amend the originating application retrospectively to the date of its
entry in the county court, there was quite clearly no proper service, because
Charringtons’ office is not the place at which to serve Bass Holdings Ltd. If, on
the other hand, there was no relation back, as Charringtons have disappeared
from the scene, no one has been served.
Is this an
insuperable difficulty? If it is, RSC,
Order 20, rule 5(3), has an extremely limited application in that it would
always be necessary to prove that the ‘right’, ie the intended, defendant had
been served. So construed, it can only be used to rectify what amounts to a
clerical error. Furthermore, in this limited category of case, it would be most
unlikely that any issue could arise as to whether the process was misleading or
whether there was doubt about the intended defendant or whether it was just to
allow the correction. These qualifications would therefore be unnecessary.
Accordingly, I do not think that it is so limited. But if it is not so limited,
and the rule can apply where there has been no service on the intended
respondent, what criteria should be applied in extending the time for such
service under CCR, Order 13, rule 5? On
the authorities, I must and do accept that this is a power to be used
sparingly, but RSC, Order 30, rule 5(3), is itself hedged with every sort of
protection for the intended respondent — the mistake must be genuine, the error
in the name of the respondent must not be misleading or such as to cause any
reasonable doubt as to the identity of the intended respondent and, above all,
it must be just to allow the correction.
Those
protections will of themselves make a successful application under RSC, Order
20, rule 5(3), something of a rarity, and in my judgment if leave to amend or
correct would otherwise be given under that rule, the court should not hesitate
to make any necessary extension of time under CCR, Order 13, rule 5.
In the instant
case all the criteria of RSC, Order 20, rule 5(3), are met. The mistake was
genuine. Charringtons, as the managing agents of Bass Holdings Ltd, could not
have been misled and either they informed Bass Holdings Ltd of the originating
application or they should have done so. Bass Holdings Ltd could not have been
misled. Neither Charringtons nor Bass Holdings Ltd could have had any doubt
that the lessees were intending to name the landlord, ie Bass Holdings Ltd, as
respondent. There can be no injustice in requiring Bass Holdings Ltd to make
good their claim to possession on its merits.
I would order
that Charringtons’ name be deleted as a respondent, leaving only that of Bass
Holdings Ltd and I would extend the time for service on Bass Holdings Ltd until
the expiration of 14 days from today.
Agreeing that
the appeal should be dismissed, GRIFFITHS LJ said: I will not repeat the facts
which are fully set out in the judgments of my brethren. It is in my view clear
beyond peradventure that the tenants’ solicitors at all times intended to apply
for a new tenancy from the current landlords. Any other intention would be
absurd, for the application was only made in response to the current landlords’
notice to quit.
The landlords,
who are one of the biggest brewery groups, had for their own purposes
transferred the freehold of the premises from one company to another and then
apparently changed the name of that company, but at all times they corresponded
with the tenants in the name of the company who originally granted the lease.
In these circumstances the tenants’ solicitors made a careless but
understandable mistake when they named the current landlords as Charringtons
Ltd, and not Bass Holdings Ltd, on the application for a new tenancy. That
mistake cannot possibly have misled the brewers, who knew from October 12 that
their tenants were not prepared to give up possession, and it can have come as
no surprise to them that an application was made for a new tenancy within the
permitted time-limits.
It is not now
possible to correct the mistake by adding Bass Holdings Ltd as a party to the
proceedings under Order 15, rule 1, as the time for making the application for
a new tenancy under section 29(3) of the Act has long since expired.
Order 20, rule
5(2), however, specifically empowers the court to allow an amendment to correct
the name of a party even though the relevant limitation period has expired,
provided that it is just to do so. I have no doubt that it would be just to do
so in this case, otherwise the brewers will be able to take advantage of a
mistake by their tenants’ solicitor the nature of which they must have been
well aware and which cannot possibly have misled them.
But the
question remains, does this case fall within the scope of Order 20, rule
5(3)? Is the rule to be limited to mere
misspelling 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 Holdings Ltd. 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.
Test it this
way, suppose after the solicitor had mistakenly completed the application for a
new tenancy naming Charringtons Ltd as the landlord, his partner pointed out to
him that the name of the landlord in the supplemental lease was Bass Ltd, now
changed to Bass Holdings Ltd, and had asked the solicitor if he intended to
proceed against Charringtons Ltd? The answer
would have been ‘Good heavens, No, I intend to proceed against the landlord;
thank goodness you have pointed out my mistake. I must change the name to Bass
Holdings Ltd.’ As the mistake in this
case which led to using the wrong name for the current landlords did not
mislead the brewers, and as in my view there can be no reasonable doubt as to
the true identity of the person intended to be sued, this case falls within the
scope of Order 20, rule 5(3), and it would be just to correct the name of the
brewers from Charringtons Ltd to Bass Holdings Ltd.
For these
reasons and those given in the judgment of Donaldson LJ, with which I agree, I
would dismiss this appeal and agree with the order he proposes.
The appeal
was dismissed. No order was made as to costs. Leave to appeal to the House of
Lords was refused.
