Application for new tenancy — Time limit — Procedure — Respondents mistakenly named as landlords on claim form — Application out of time to substitute correct landlord — Whether jurisdiction to allow application under CPR 19.5(1) — Appeal allowed
The appellants were the tenants of premises used as a school under a 12-year lease that was subject to Part II of the Landlord and Tenant Act 1954. The respondents were the executors of the landlord’s will. After the contractual term came to an end, the respondents terminated the tenancy by way of landlord’s notice, stating that they would not oppose the grant of a new one. The appellants applied for a new tenancy within the time limit imposed by section 29(3) of the 1954 Act. By the date of the application, the freehold of the property had been transferred to P, who had therefore become the landlord under section 44 of the Act and had to be joined as a defendant to the appellants’ application, as required by para 3.4 of CPR 56 PD. However, the appellants erroneously named the respondents as the defendants.
The appellants realised their mistake and applied to amend their claim form, substituting P as the defendant. By that time, the section 29(3) time limit had expired. The judge dismissed the application on the ground that it had been made out of time and there was no power under the CPR to entertain it outside the limitation period. He considered that it was not covered by CPR 19.5(1), which permitted a change of parties after a limitation period under certain listed Acts and under “(c) any other enactment which allows such a change, or under which such a change is allowed”. The judge held that the 1954 Act did not fall within CPR 19.5(1)(c), because it contained no provision allowing or disallowing the substitution or adding of parties. The appellants appealed.
Held: The appeal was allowed.
CPR 19.5(1)(c) should be interpreted as referring to any enactment that allowed, or did not prohibit, a change of parties following a relevant limitation period. The first limb, – “which allows such a change” – referred to an enactment that specifically permitted a change. The second limb, – “or under which such a change is allowed” – referred to a statute that did not prohibit a change. This wider meaning was consistent with both the pre-CPR regime and the original version of CPR 19.5(1). The amended version was not intended to change the rules so as to deny the court the jurisdiction it had previously enjoyed. An application to change the parties was an incident of a claim for a new tenancy and fell within the general ambit of section 29(3) of the 1954 Act, even though that section made no specific provision for it. Therefore, such an application was allowed under the 1954 Act because the Act did not prohibit it.
The necessary conditions for substituting a party under CPR 19.5(1) had been met in the present case. The requirement in CPR 19.5(3)(a), that the new party was to be “substituted for a party who was named in the claim form in mistake for the new party”, had been satisfied on the facts of the case, since the appellants had always intended to sue those persons who answered the description of “competent landlord”. They had named the respondents because they had mistakenly believed them to answer that description: Horne-Roberts v SmithKline Beecham plc [2001] EWCA Civ 2006; [2002] 1 WLR 1662 applied.
Michelle Stevens-Hoare (instructed by Cartwright, Cunningham Haselgrove & Co) appeared for the appellants; Katherine McQuail (instructed by Birkett Long, of Chelmsford) appeared for the respondents.
Sally Dobson, barrister
