| PRACTICE — Pleadings — Joinder — Expiry of limitation period in libel action — Application to join two further claimants — Whether to be granted — Limitation Act 1980, s 35 — CPR r 19.5
Adelson and another v Associated Newspapers Ltd [2007] EWCA Civ 701
CA: Lord Phillips of Worth Matravers CJ, Jacob and Moses LJJ: 9 July 2007
A court would only grant an order substituting a party to an action after the expiry of the limitation period, pursuant to CPR r 19.5, on the ground that there had been a mistake in relation to the name of a party, if it was shown that the person who had made the mistake was the person responsible for the issue of the claim form and that, had the mistake not been made, the new party would have been named in the pleading.
The Court of Appeal so held in dismissing an appeal by the claimants, Sheldon Gary Adelson and Las Vegas Sands Corp, against the decision of Tugendhat J in the Queen’s Bench Division on 1 May 2007 refusing to grant them permission to amend the claim form and particulars of claim to join, pursuant to CPR r 19.5, the companies Las Vegas Sands LLC and Las Vegas Sands (UK) Ltd as third and fourth claimants respectively in an action for libel after the expiry of the limitation period.
S 35(5)(b) of the Limitation Act 1980 provided that the addition or substitution of a new party after the expiry of the limitation period was only permitted “in the case of a claim involving a new party, if the addition or substitution is necessary for the determination of the original action”.
S 35(6)(a) provided that the addition or substitution of a new party shall not be regarded as necessary for the purposes of s 35(5)(b) unless “the new party is substituted for a party whose name was given in any claim made in the original action in mistake for the new party’s name …”
CPR r 19.5 provided “(2) The court may ... substitute a party only if … (b) the addition or substitution is necessary. (3) The ... substitution of a party is necessary only if the court is satisfied that—(a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party …”
LORD PHILLIPS CJ, giving the judgment of the court, said that in Morgan Est (Scotland) Ltd v Hanson Concrete Products Ltd [2005] 1 WLR 2557, 2568 Jacob LJ stated that the Limitation Act 1980 “had the obvious intention of liberalising the position from that under the Limitation Act 1939”. That obiter observation was made without the court having been referred to the legislative history of the 1980 Act or to a number of judgments that had analysed that. The observation was not correct and the reasoning in Morgan Est should not be followed. When interpreting the provisions of the CPR in respect of the substitution of parties, it was necessary to have regard to the jurisprudence on RSC Ord 20 r 5. CPR rr 17.4 and 19.5 had to be read together to give full effect to Ord 20, r 5. Nevertheless, s 35 and CPR r 19.5(3), in contrast to CPR r 17.4(3) and Ord 20 r 5, did not specify that the mistake in relation to the name of a party must not be such as to cause any reasonable doubt as to the party intending to sue or be sued. It was clear from the language of CPR r 19.5(3)(a) that the person who had made the mistake must be the person responsible, directly or through an agent, for the issue of the claim form. It was also clear that he must be in a position to demonstrate that, had the mistake not been made, the new party would have been named in the pleading. The nature of the mistake required was not spelt out. The Court of Appeal had held that the mistake must be as to the name of the party rather than as to the identity of the party, applying the generous test of that type of mistake laid down in The Sardinia Sulcis [1991] 1 Lloyd’s Rep 201. The “working test” suggested in Weston v Gribben [2006] EWCA Civ 1425, in as much as it extended wider than the Sardinia Sulcis test, should not be relied upon. Their Lordships were not convinced that it was impossible to treat the present case as a case of substitution, merely because the proposed amendments resulted in three corporate claims rather than one, albeit that to permit addition of parties in such circumstances pursuant to CPR r 19.5(3) would certainly break new ground. However, on the facts, it was impossible to conclude that those responsible for the particulars of claim were under a misapprehension of the material facts but for which they would have added as claimants the third and fourth claimants. Accordingly, the appeal was dismissed. |
