Addition or substitution of party

Adelson and others v Associated Newspapers Ltd CA TLR 18 July

CPR rule 19.5 provides that the court may add or substitute a party after the end of a relevant limitation period only if the relevant limitation period was current when the proceedings were started and the addition or substitution is ‘necessary’. For the addition or substitution to be necessary, the court must be satisfied that the new party is to be substituted for a party who was named in the claim form in mistake for the new party. The provision is notoriously causing problems and there have been conflicting decisions of the Court of Appeal in relation to its effect. In this judgment, their lordships proposed to clarify that difficult area of procedural law. When interpreting the provisions of the Civil Procedure Rules in respect of the substitution of parties, it is still necessary to have regard to the jurisprudence on Order 20, rule 5 of the Rules of the Supreme Court 1965, which enabled an amendment to be made if the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person suing or to be sued. Order 20, rule 5 was replaced by CPR rule 19.5, which provides for substitution if ‘the new party is to be substituted for a party who was named in the claim form in mistake for the new party’. Section 35 of the Limitation Act 1980 and CPR rule 19.5(3), in contrast to CPR rule 17.4(3) and RSC Order 20, rule 5, do not specify that the mistake in relation to the name of the party must not be such as to cause any reasonable doubt as to the party intending to sue or be sued. It is clear from the language of CPR rule 19.5(3)(a), that the person who made the mistake must be the person responsible, directly or through an agent, for the issue of the claim form. It is 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 is 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 wider approach suggested in Weston v Gribben [2006] EWCA Civ 1425 should not be relied on, neither should Morgan Est (Scotland) Ltd v Hanson Concrete Products Ltd [2005] 1 WLR 2557.