Landlord and Tenant Act 1954, Part II — Time-limit set by section 29(3) for the tenants’ application to the court for a new tenancy — Procedural muddle in present case — Appeal to judge from master’s decision — Tenants’ originating summons applying for a new tenancy was in fact issued and served within the four months’ limit prescribed by section 29(3), but, unfortunately, it named the landlords as the plaintiffs and the tenants as the defendants and the references in the body of the summons to the plaintiffs and defendants were transposed — It was a genuine mistake in the office of the tenants’ solicitors and no one was misled — At first the tenants’ solicitors were successful in persuading the master to amend the originating summons but later, on the landlord’s application, he ordered the summons to be struck out — The present appeal was by the tenants against that order
appellants relied primarily on RSC, Ord 20, r5(3), which provides for an
amendment to be made to correct the name of a party — Peter Gibson J agreed
that the case fell within this rule and rejected objections by the landlords
based on Ketteman v Hansel Properties Ltd and Liff v Peasley — He held that the
necessary corrections to be made in the present case did not amount to the
addition of a new party — The misdescriptions were mere irregularities and did
not render the proceedings a nullity — The mistake was genuine and did not
raise any reasonable doubt as to the identity of the person intended to sue or
the person intended to be sued — The judge found support for his view in Evans
Constructions Co Ltd v Charrington & Co Ltd and in The ‘Joanna Borchard’ — Appeal
allowed and the amendments first made to the originating summons restored
The following
cases are referred to in this report.
Evans Constructions Co Ltd v Charrington & Co Ltd [1983]
QB 810; [1983] 2 WLR 117; [1983] 1 All ER 310; [1982] EGD 326; (1982) 264 EG
347, [1982] 2 EGLR 61, CA
Katzenstein Adler Industries (1975) Ltd v Borchard Lines Ltd (The
‘Joanna Borchard’) [1988] 2 Lloyd’s Rep 274
Ketteman v Hansel Properties Ltd [1987] AC
189; [1987] 2 WLR 312; [1988] 1 All ER 38; (1987) 85 LGR 409; [1987] 1 EGLR
237, HL
Liff v Peasley [1980] 1 WLR 781; [1980]
1 All ER 623, CA
This was an
appeal by tenants, Teltscher Bros Ltd, from the decision of Master
Cholmondeley-Clarke, whereby, on the application of the landlords, London &
India Dock Investments Ltd, he had struck out his own previous ex parte order
allowing amendments to the tenants’ originating summons.
David
Neuberger QC and John Male (instructed by Lickfolds, Wiley & Powles)
appeared on behalf of the appellant tenants; John Martin (instructed by the
solicitor to the Port of London Authority) represented the respondent
landlords.
Giving
judgment, PETER GIBSON J said: This is an appeal by Teltscher Brothers Ltd
(‘Teltscher’) from the decision of Master Cholmondeley-Clarke on the
application of London & India Dock Investments Ltd (‘LIDI’) whereby he
struck out the originating summons taken out by Teltscher’s solicitors under section
24, Landlord and Tenant Act 1954, and set aside his own ex parte order
allowing amendments to the originating summons. In that originating summons
before amendment, in the heading and certain other parts LIDI was named as the
plaintiff and Teltscher as the defendant. It is not in dispute that these were
genuine errors which did not mislead LIDI, but the errors were not cured until
the master allowed amendments outside the statutory period prescribed for
Teltscher’s section 24 application to the court. Accordingly the question for
determination is whether in the circumstances the amendments came too late to
cure the errors.
I have had the
benefit of lucid argument from Mr Neuberger for the tenant and Mr Martin for
the landlord and I am grateful to them for their assistance.
LIDI is a
subsidiary of the Port of London Authority (‘the PLA’) and owns the freehold of
600 Warehouse, Bulk Wine Terminal, West India Dock, London E14. Teltscher, a
wine importer, occupied these premises as tenant under a one-year tenancy
expiring on July 1 1986 and granted by LIDI, to which Part II of the 1954 Act
applied. By section 24(1) a tenant has a right to apply to the court for a new
tenancy if the landlord has given notice under section 25 terminating the
tenancy; but by section 29(2) that application is not to be entertained unless
the tenant, after service of a section 25 notice, notifies the landlord that he
would not be willing to give up possession of the property, and by section
29(3) no application under section 24(1) is to be entertained unless it is made
not less than two months nor more than four months after the section 25 notice.
LIDI served a
section 25 notice dated December 16 1987 on Teltscher. Thereby it gave notice
terminating the tenancy on June 30 1988 and indicated that if Teltscher were
not willing to give up possession and applied for the grant of a new tenancy,
LIDI would oppose the application on the ground mentioned in section 30(1)(f)
(in short, an intention to demolish the premises). It does not appear from the
evidence precisely when the section 25 notice was served. It was sent by
recorded delivery post, but nothing turns on the exact date of service as it is
common ground that the notice would have been received by Teltscher more than
four months before the originating summons was amended.
On April 8,
within the four months’ period, Teltscher’s solicitors issued the originating
summons. It is clear from the evidence of Mr Forrester, who works in the
litigation department of Teltscher’s solicitors, that his instructions and his
intentions were to prepare the originating summons on behalf of Teltscher to be
served on LIDI. But the originating summons that was prepared showed, after the
heading referring to the matter of the premises and to the matter of the 1954
Act, LIDI as plaintiff and Teltscher as defendant. The main part of the
originating summons then continued:
Let LIDI
— and its registered office is then given
—
attend before the Master . . . on the
hearing of an application by the Plaintiff for:
1. An Order
for the Grant by the above-named Plaintiff to the Defendant pursuant to the
Landlord and Tenant Act 1954 of a new tenancy of the undermentioned premises
for the period and at the rent and upon the terms hereinafter mentioned or
alternatively for such period and at such rent and upon such terms as the Court
may determine.
2. Such
further or other relief as the Court may deem just and equitable.
3. Costs.
Pausing there, I would observe that the
main part of the originating summons which I have just cited is correct in so
far as it requires LIDI
by the above-named plaintiff (ie LIDI) to the defendant (ie Teltscher) of a new
tenancy, although it is incorrect in so far as it refers to the application as
being by the plaintiff (ie LIDI).
The
originating summons then sets out the requisite particulars. They identify the
premises but state that ‘the Plaintiff occupies the premises and carries on the
business of importing wine’. They state ‘the Plaintiff’s tenancy’ and say that
it was granted by letter dated July 25 1984 from the PLA to ‘the Plaintiff’,
that ‘the Defendant’ has served on ‘the Plaintiff’ a section 25 notice dated
December 16 1987, and give particulars of that notice, that ‘the Plaintiff’ had
by counternotice dated January 16 1988 notified ‘the Defendant’ that it would
not be willing to give up possession, and what ‘the Plaintiff’ proposed as to
the new tenancy including terms contained in the correspondence passing between
the PLA and ‘the Plaintiff’. Against the background of the facts which I have
recited and which were known to LIDI and Teltscher, the transposition of the names
of the plaintiff and of the defendant in the particulars is obvious.
The summons
was expressed to be taken out by solicitors who are named and they are
described as solicitors for ‘the said Plaintiff’, but in fact they are
Teltscher’s solicitors.
Mr Forrester,
having caused the originating summons to be issued on April 8, despatched to
LIDI on April 11 a letter enclosing the sealed copy originating summons by way
of service together with an acknowledgement of service form. That was received
by LIDI on April 13. Mr Duke, the solicitor to LIDI, wrote to Teltscher’s
solicitors on April 22 pointing out that the originating summons was defective
because of the transposition of the identities of the plaintiff and the
defendant. He said that he was prevented from entering the acknowledgement of
service and that he must decline to accept service. He said that the court had
indicated that Teltscher should amend, and concluded:
In spite of the errors I think your
intentions are clear and so to progress the matter I have taken a photocopy of
the Originating Application to which I am working.
On April 25,
Teltscher’s solicitors successfully applied ex parte to the master to
amend the originating summons and this was done by naming Teltscher as
plaintiff and LIDI as defendant and, in para 1 of the relief sought,
transposing ‘Plaintiff’ and ‘Defendant’. On the same day they sent by way of
service the amended originating summons with an acknowledgement of service
form.
A hearing to
obtain directions from the master was fixed for May 11, and on April 29 there
was a telephone conversation between Mr Forrester and Mr Duke, who indicated
that solicitors would have to attend before the master. Mr Forrester has
deposed to the fact that Mr Duke seemed to be well aware that the application
for the grant of a new tenancy was being made by Teltscher but did not raise
the point that the proceedings were defective. On May 6, LIDI issued a summons
to strike out, and on June 20 the master made the order now the subject of
appeal.
Mr Neuberger’s
primary submissions were based on Ord 20, r 5(3), but in the alternative he
relied, first, on Ord 15, r 6 on the footing that there had been a misjoinder
of LIDI as plaintiff and of Teltscher as defendant and, second, on waiver.
Order 20, r
5(1), (2) and (3) is in the following form:
(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. In this paragraph
‘any relevant period of limitation’ includes a time limit which applies to the
proceedings in question by virtue of the Foreign Limitation Periods Act 1984.
(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.
On the face of
r 5(2), the words ‘any relevant period of limitation’ are not limited to the
Foreign Limitation Periods Act 1984 and so I take it to include, for example,
the period specified in section 29(3) of the 1954 Act. In Evans
Constructions Co Ltd v Charrington & Co Ltd [1983] QB 810, the
Court of Appeal held that the rule in its then simpler form (with the second
sentence of r 5(2) omitted) could be used to substitute for one company,
mistakenly thought to be the landlord and named as defendant, another company
which was the true landlord for the purpose of an application by a tenant under
section 24 notwithstanding that the four months’ period had expired.
Mr Martin does
not dispute that the conditions of Ord 20, r 5(3) are satisfied, but he submits
that the effect of the decision of the House of Lords in Ketteman v Hansel
Properties Ltd [1987] AC 189 is that the amendment originally permitted by
the master had the effect of making LIDI the defendant to the application only
from the time of service of the amended originating summons and that the
amendment does not relate back to the issue of the originating summons.
Accordingly, he submits, such amendment, which would have cured the defects in
the originating summons if made and served in time, was too late to serve any
useful purpose. The Ketteman case does not directly relate to Ord 20, r
5 but related to the joinder under Ord 15, r 6, by amendment, of additional
parties after the limitation period had expired. The House of Lords held that in
computing the limitation period the date of joinder was not to be related back
to the date when the original writ was issued but that time only ceased to run
from the date of joinder. In so doing, the House of Lords approved the remarks
of Brandon LJ in Liff v Peasley [1980] 1 WLR 781 at p 804, where
he had disapproved the ‘relation back’ theory but supported the theory that the
practice of prohibiting the joinder by amendment of an additional defendant
after the expiration of the limitation period was based on the concept that to
allow such joinder would serve no useful purpose. In Liff v Peasley,
Brandon LJ, at p 803, had also said:
The rule committee, in framing the new
provisions of the present RSC Ord 20, r 5, appears to have assumed that the
‘relation back’ theory was the true basis of the rule of practice. I say that
because paragraphs (2), (3), (4) and (5) are designed to allow amendments in
certain circumstances which would or might otherwise infringe the rule of
practice, and these paragraphs would not serve their intended purpose of
defeating a defence of time-bar if the amendments allowed under them did not
relate back to the date of the original writ but only took effect from the date
of amendment. The fact that the rule committee made that assumption is clearly
a matter of some weight to be taken into account. It cannot, however, of itself
be decisive of the question under discussion.
There is, in
my view, a high degree of artificiality and unreality about the ‘relation back’
theory. There is no reason to quarrel with the general proposition that an
amendment of a writ or a pleading relates back to the original date of the
document amended, as stated by Lord Collins MR in Sneade v Wotherton
Barytes & Lead Mining Co [1904] 1 KB 295, 297. This seems to me to be
an entirely sensible proposition so long as the amendment concerned does not
involve the addition of a new party, either as plaintiff or defendant, or the
raising of a new cause of action, but involves only the modification, by
addition, deletion or substitution, of pleas or averments made between existing
parties in respect of a cause or causes of action already raised. Where,
however, the amendment concerned involves the addition of a new party or the
raising of a new cause of action, it appears to me to be unrealistic and
contrary to the commonsense of the matter to treat it as relating back in the
same way.
Mr Martin
submitted, in relation to the dichotomy pointed out by Brandon LJ in the last
two sentences cited, that the amendment in the present case fell within the
last sentence rather than the penultimate sentence. He argued that there was no
application within the time-limit of section 29(3) because the originating
summons in its original form did not comply with the rules, the errors that
were made being fundamental. He referred me to the provisions of the Rules of
the Supreme Court requiring the party taking out an originating summons to be
described as a plaintiff and the other parties as defendants (Ord 7, r 2(2))
and to the necessity for each defendant, named in and served with an
originating summons, to acknowledge service (Ord 12, r 9(1)). I was also taken
to the provisions of Ord 97, r 6, specifying what the originating summons by
which a section 24 application is made must state and requiring the landlord to
be made defendant. He acknowledged that the points taken were technical, but
rightly said that in a technical area of the law such as this he was entitled
to succeed on a technical point if it was a good one.
I am unable to
accept Mr Martin’s submission. On its face the originating summons contains
patent inconsistencies which need to be resolved. In the heading, LIDI is named
as the plaintiff and Teltscher as the defendant, and yet LIDI is required to
attend before the master. Ord 7, r 2(1) requires the originating summons to be
in the prescribed form, and Form 10 makes plain (as is only common sense) that
it is the defendant who has to be required to attend before
proper relief to be sought on a section 24 application. The further references
in the originating summons to the plaintiff and the defendant make it obvious
that there has been a transposition of the names of the plaintiff and the
defendant. LIDI, when it received the originating summons, was not misled: Mr
Duke thought the intentions of Teltscher’s solicitors clear. The other party,
Teltscher, although its solicitors had produced a muddled document, knew it was
the applicant seeking an order for the grant by LIDI of a new tenancy. Although
there has been a misdescription of LIDI in parts of the originating summons as
‘the Plaintiff’ and of Teltscher as ‘the Defendant,’ so that there were
failures to comply with the rules, those, in my judgment, are mere
irregularities and, in accordance with Ord 2, r 1(1), they do not render the
proceedings a nullity, as Mr Martin conceded. In my judgment, therefore, the
correction of the erroneous naming of LIDI as plaintiff instead of defendant
and of Teltscher as defendant instead of plaintiff does not amount to the
addition of a new party within Brandon LJ’s dichotomy, and the amendment falls
within Ord 20, r 5(3), it being conceded that the mistake was genuine and not
misleading or such as to cause any reasonable doubt as to the identity of the
person intended to sue and of the person intended to be sued.
I am
encouraged in this conclusion by two decisions on Ord 20, r 5(3), albeit the
facts in each of those two cases were very different.
The first is
the Evans case of which I have already made mention. The facts of that
case, in my view, were less favourable to the application of Ord 20, r 5(3)
than in the present case, in that the tenant’s solicitor there, thinking that
Charrington & Co Ltd was the landlord, had named that company as the
defendant whereas the true landlord was a different company, Bass Holdings Ltd.
Nevertheless the Court of Appeal (Donaldson and Griffiths LJJ, Waller LJ
dissenting) held that Ord 20, r 5(3) applied because of the tenant’s solicitor’s
genuine mistake, his intention being to sue the relevant landlord, even though
this meant making someone, who had not been served or named, a party after the
four months’ period had expired. Mr Martin submitted that the Court of Appeal’s
decision was wrong in the light of the subsequent Ketteman case because
the court should have held that where a new defendant was substituted after a
limited period had expired there was no relation back to the time when the
proceedings were issued and so it would have served no useful purpose to
substitute the correct defendant. Mr Martin specifically disclaimed challenging
the vires of Ord 25, r 5(3), but in fact it seems to me that he must in reality
be challenging its validity in so far as it purports to allow amendments
substituting new parties after the relevant period of limitation has expired. I
confess that but for the Evans case I would see great force in his
submission that the Ketteman principle should apply to the case where
the amendment would cause a new party to be added. But the Court of Appeal was
alive to the point that if Ord 25, r 5(3) applied, then the new defendant would
be substituted outside the period prescribed by section 29(3); yet it was held
that it did not matter whether the ‘relation back’ theory or the ‘no useful
purpose’ theory was correct. Donaldson LJ thus expressly recognised that the
‘relation back’ theory might be wrong and yet held that that would not prevent
Ord 20, r 5(3) from being applicable to allow the substitution of a new company
as defendant in place of the company originally named. It is true it is that
Donaldson LJ did not directly grapple with the point in the way that it is now
put by Mr Martin, but, as he and Griffiths LJ were aware of the point and
thought it immaterial, I do not think it open to a puisne judge to say that the
Court of Appeal was wrong. I repeat that in any event the position in the
present case seems to me to involve a less violent amendment.
The second
case is The ‘Joanna Borchard’ [1988] 2 Lloyd’s Rep 274. In that case a
writ was issued before the expiry of the one-year time-limit imposed by the
Carriage of Goods by Sea Act 1971. The plaintiff was named in the heading of
the writ as Katzenstein Adlet Industries Ltd and at the end of the writ the plaintiff
was named as Katzenstein Adler Industries Ltd and described as a body
incorporated under the law of the Netherlands and a Dutch address for it was
given. The name was erroneous, there being no such company in the Netherlands.
An amendment was made to the heading of the writ so as to name, as plaintiff,
Katzenstein Adler Industries (1975) Ltd, and at the end of the writ the
plaintiff’s description was given as being a body incorporated under the law of
Israel and an Israeli address was given. Hirst J held that Ord 20, r 5(3)
applied to permit the amendment, for two reasons. First, he held that section
35(1) and (4) of the Limitation Act 1980 applied so as to authorise Ord 20, r
5(3) to achieve a relation back not only in Limitation Act cases but in all
cases, notwithstanding section 39 of that Act. Mr Martin subjected that ground
of Hirst J’s decision to cogent criticisms. But whether or not that case was
correctly decided on that point (and it is unnecessary for me to reach any
conclusion thereon), Hirst J also held in favour of the validity of the
amendment under Ord 20, r 5(3) on the separate ground that the amendment did
not involve the addition of a new party within the last sentence of the passage
which I have cited from the judgment of Brandon LJ in Liff v Peasley,
this notwithstanding that no plaintiff of the name or country as originally
shown in the writ existed. Again it seems to me that the facts of the present
case are at least as favourable as those in the case before Hirst J for the
application of Ord 20, r 5(3).
Accordingly I
conclude that there is power under Ord 20, r 5(3) to allow the amendment, and
in the circumstances I think it eminently just to do so.
I need say
nothing about the alternative grounds relied on by Mr Neuberger.
It follows
that I must allow the appeal and restore the amendments to the originating
summons.
