Application under Part II Landlord and Tenant Act 1954 – Statutory timetable – Misdescription of party in application – Application to correct name – Application made outside time limit under section 29(3) – Whether correction under Ord 20 r 5(3) relating back
Hammerson UK Properties plc (Hammerson), was the landlord of Unit E7, Brent Cross Shopping Centre, Hendon, as successor in title to a company which had granted a lease dated March 17 1981 to Zales Jewellers Ltd. Zales Jewellers Ltd later changed its name to Ernest Jones Ltd. Signet Group plc (Signet), was the parent company of a group operating retail jewellery stores trading under various styles, including Ernest Jones Ltd. On June 14 1996, Hammerson as landlord served on the tenant, Ernest Jones Ltd, a notice under section 25 of the Landlord and Tenant Act 1954. On July 1 1996 the tenant’s solicitors served a counternotice stating that they acted for Ernest Jones Ltd and that “our clients” were not willing to give up possession of the property. On June 12 1996 Hammersons’ solicitors sent a recorded delivery letter to Ernest Jones Ltd stating that Hammerson was willing to provide alternative accommodation pursuant to section 30 of the 1954 Act and specifiying the alternative accomodation offered. Correspondence ensued as to the alternative accommodation being offered to Ernest Jones Ltd. The strict statutory timetable imposed under the 1954 Act for making an application to the court for a new tenancy was complied with, but the applicants named in the application were Signet Group plc and not Ernest Jones Ltd. The mistake came to light during a conversation between solicitors acting for the parties in September 1996, and an application to amend was made by both Signet and Ernest Jones Ltd to the county court to correct the name on the application pursuant to Ord 20 r 5(3). It was submitted to the district judge and to the judge on appeal that the application was to “correct” the name of the plaintiff; that the mistake was a genuine mistake, that Hammerson had not been misled or under any reasonable doubt as to the identity of the person intending to sue and that Ord 20 r 5(3) enabled the court to give leave to amend if it thought just, even though the application for leave was made outside the time limit laid down by section 29(3) of the 1954 Act. Reliance was placed on Evans Constructions Co Ltd v Charrington & Co Ltd [1982] 2 EGLR 61 in which it was held, by a majority, that an application under the 1954 Act was capable of amendment under Ord 20 r 5. The judge gave leave to amend the name. Hammerson appealed contending that Evans v Charrington had been decided before Ketteman v Hansel Properties Ltd [1987] 1 EGLR 237, the effect of which was that if leave to amend was given under Ord 20 r 5(3) substituting a new party, the amendment did not relate back to the date of the writ or the originating summons. If the amendment was made it would therefore be out of time and leave to amend should have been refused as being useless.
Held The appeal was dismissed.
1. Since the decision in Ketteman (supra), consideration had been given in a number of cases whether the demise of the relation back theory affected Ord 20 r 5 and in particular Ord 20 r 5(3).
2. There had always been power within Ord 20 r5 (3) to correct a misnomer even if the limitation period had expired. Ord 20 r 5 (3) allowed the correction of a name even if that had the effect of substituting a new party. The rule itself had been designed to allow a correction which related back. Thus if a party could bring itself within the rule, a correction would relate back. On the facts, it was clear on the authority of Evans v Charrington (supra) that Ord 20 r 5 (3) applied and the only question was whether it was just to allow the amendment. The judge and the district judge had been right to decide that it was just to allow the amendment.
Michael Driscoll QC and Andrew PD Walker (instructed by Eversheds, of Leeds) appeared for the appellant; Simon Berry QC (instructed by Theodore Goddard) appeared for the respondents.
