Substitution of parties — CPR 19.5 — Respondent wrongly named as claimant and contracting party — Whether permissible to amend claim form to add correct contracting party — Whether claimant sufficiently identified where clearly intended to be the person having the right to sue — Appeal dismissed
The appellant supplied pipe sections to an engineering contractor, A, for the construction of a tunnel forming part of a waste water treatment plant. Proceedings later ensued in which the pipe sections were alleged to be defective. Although the contract for the supply of the pipes was between the appellant and A, the claim form erroneously named the respondent, whose name was similar to A’s, as claimant. It also wrongly described the respondent as the contracting party.
In its defence, the appellant denied the existence of any defect in the pipes and relied upon the error in the claim form. By that time, the limitation period had expired. The respondent made an application to add A as a claimant in order to rectify the error. It also sought to add C as an assignee of the benefit of the cause of the action.
The central issue was whether the amendment was permitted under CPR 19.5, which allowed a change of parties after the end of a limitation period where such a change was “necessary”. CPR 19.5(3)(a) stated that a change would be necessary where “the new party is to be substituted for a party who was named in the claim form in mistake for the new party”.
The judge allowed the amendment, holding that there could be no doubt that the intended claimant was the person with the right to sue, namely the contracting party or the assignee of the right to sue. On appeal, the appellant sought to rely on pre-CPR case law. It argued that an amendment should be permitted only in cases where the claimant, despite having been wrongly named in the original claim form, was described therein with sufficient accuracy that it could be correctly identified. It submitted that it was insufficient simply to say that the claim was intended to be by the person holding the right to sue.
Held: The appeal was dismissed.
The right description/wrong name test did not set the limits of CPR 19.5. It had been devised for a wholly different rule, and not for section 35 of the Limitation Act 1980, under which CPR 19.5 had been made. It was not binding in the present case: The Sardinia Sulcis [1991] 1 Lloyd’s Rep 201 not followed; post-CPR cases Horne-Roberts v SmithKline Beecham plc [2001] EWCA Civ 2006; [2002] 1 WLR 1662, Parsons v George [2004] EWCA Civ 912; [2004] 40 EG 150 and Kesslar v Moore & Tibbits [2004] EWCA Civ 1551 considered. The correct approach was to apply the words of CPR 19.5 without regard to Sardinia Sulcis but with regard to the overriding objective. In the present case, the limitation period had expired, and the addition of A or C was “necessary”. It was clear that the intention had been to name A as claimant, and this could be put right by substituting A for B. There was no prejudice to the appellant, which would be deprived of an unmeritorious defence arising solely from an error made by the other side. There was no reason to construe “mistake” restrictively, or why a wide test, of intending the claim to be by the person having the right to sue, should not be applied if no one was prejudiced thereby. In the event that Sardinia Sulcis applied, the judge had correctly held that that wide description of the claimant would suffice to satisfy it.
As to C, it could be joined as the current beneficial owner of the right to sue under CPR 19.5(3)(c). The respondent should be removed from the case, and the case should go forward in the names of A and C.
William Norris QC and Benjamin Pilling (instructed by Vizards Wyeth, of Dartford) appeared for the appellant; Andrew Bartlett QC and Paul Reed (instructed by Kennedys) appeared for the respondent.
Sally Dobson, barrister
