Davies v Elsby Brothers Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PEARCE,LORD JUSTICE DEVLIN |
| Judgment Date | 02 November 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J1102-1 |
| Court | Court of Appeal |
| Date | 02 November 1960 |
[1960] EWCA Civ J1102-1
Lord Justice Pearce and
Lord Justice Devlin
In The Supreme Court of Judicature
Court of Appeal
Mr. M.A.B. KING-HAMILTON, Q.C. and Mr. JOHN NEWEY (instructed by Messrs. Sharpe, Pritchard & Co., Agents for Messrs. Hawley & Phoenix, Longton, Staffs.) appeared on behalf of the Appellant (Plaintiff).
Mr. G.G. BAKER, Q.C. and Mr. F. BLENNERHASSETT (instructed by Messrs. Barlow, Lyde & Gilbert) appeared on behalf of the Respondents (Defendants).
: This is an appeal, by leave, from an Order of Mr. Justice Elwes in Chambers setting aside a writ on the ground that the present defendants were substituted as defendants after the claim against them had become statute-barred. The writ was issued against Elsby Brothers (a firm) and states that the plaintiff's claim is for damages for injuries and loss sustained by the plaintiff while an employee of the defendants by the negligence of the defendants and or their servants. It was issued in respect of an accident that happened to the plaintiff in the course of his work on the 20th March, 1956. The plaintiff's right of action would therefore become statute-barred on the 20th March, 1959. The plaintiff did not consult his solicitors until March, 1959, and they issued the writ on the 18th March. They were told by the plaintiff that his employers were Elsby Brothers of Sneyd Hill, Burslem, Stoke-on-Trent, and confirmed the name of the employers by looking up the current telephone directory, which contained an entry in the name of "Elsby Brothers" (a firm) at Sneyd Hill. They therefore issued the writ against Elsby Brothers at that address. In 1955, before the accident, the firm's business had been taken over by a limited company, Elsby Brothers Limited; but the entry in the telephone book had not been altered. The writ was not served immediately. Just before the end of the period of one year during which the writ remained effective, it was discovered that the name on the writ was incorrect. The writ was therefore amended on the 17th March, 1960, by striking out the words "a firm" and adding the word "Limited" to "Elsby Brothers". The amended writ was served on the last day of the time allowed - the 19th March, 1960. The defendants then applied to set aside the writ. The Registrar refused that application, but on appeal the learned judge set it aside. He held that he had no discretion to allow an amendment that would deprive the defendants of a defence that had accrued under the Statute of Limitations.
The judge was largely guided by the case of Beardmore Motors Limited v. Birch Brothers (Properties) Limited (1959 1 Chancery, page 298). There the applicants had named in their counter-notice under the Landlord and Tenant Act the company which had been, and not the company which was, the landlord of the premises. The learned judge held that he had no discretion where a proposed amendment would constitute a substitution of a party in respect of a counter-notice under the Landlord and Tenant Act which was out of time. The mistake was, in his opinion, more than a mere misnomer, since an existing, separate company was properly described on the original counter-notice and the substitution of another company was desired; and therefore he could not depart from the settled rule that an amendment should not be allowed if it interferes with the defendant's vested rights under the Statute of Limitations.
Mr. King-Hamilton, who has given us the benefit of a careful and forceful argument, distinguishes that case in that there were there two co-existing companies and the wrong company was sued: while here there was only one company, which took over the business of the firm. Moreover, the plaintiff expressly by his writ was suing his employers as such at the correct address. He merely misdescribed them as a firm when he should have described them as a limited company. He referred us to two old cases in 1833 and 1834, where amendments had been allowed; but they do not seem to me to help because they were decided on the basis that amendments should be allowed in order to prevent the plaintiff losing his remedies through their becoming statute-barred. That was apparently the view held at that time. But a different point of view emerged in Challinor v. Roder (1 Times Law Reports, page 527) which caused the two learned judges to differ. Mr. Justice Grove held that it was wrong to allow the plaintiff to amend ex post facto if that would deprive the defendant of the benefit to which he had become entitled as of right under the Statute of Limitations. That latter view prevailed in the later cases, and has been clearly laid down in this court, so far as the addition of a plaintiff is concerned, in Mabro v. Eagle, Star & British Dominions Insurance Co. Ltd. (1932 1 King's Bench, page 485).
In my opinion the addition of a defendant is governed by the same considerations as the addition of a plaintiff. Therefore the principle of Mabro's case prevents the amendment in this case if the amendment involves the addition of a party and not the mere correction of a misnomer. That principle also applies to the substitution of a party, since substitution involves the addition of a party in replacement of the party that is removed. Moreover, if, contrary to that principle, a party were added or substituted, then the final words of Order 16 Rule 11 would defeat the purpose of the addition or substitution since the new defendant could still rely on the statute against the party so added. Those words are, "and the proceedings as against such party shall be deemed to have begun only on the service of such writ or notice".
If, however, the addition of the word "Limited" is not the addition or substitution of a party but the mere correction of a misnomer, we can properly allow it, if the merits justify that course. But, is this the mere correction of a misnomer? Mr. King-Hamilton argues that the real question is: Who did the plaintiff intend to sue? There was, he argues, only one party in existence at one time, since the two parties concerned, namely the firm and the company, were mutually exclusive and were...
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