Kesslar v Moore & Tibbits
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,LORD JUSTICE SEDLEY,LORD JUSTICE LATHAM |
| Judgment Date | 03 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1551 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/2004/1362 |
| Date | 03 November 2004 |
[2004] EWCA Civ 1551
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM REDDITCH COUNTY COURT
(HHJ GEDDES)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Buxton
Lord Justice Sedley
Lord Justice Latham
B1/2004/1362
MR R MARTIN (instructed by Messrs Whitegates, Henley in Arden, B95 5NY) appeared on behalf of the Appellant
MR S WILTON (instructed by Messrs Browne Jacobson, Nottingham NG1 7BJ) appeared on behalf of the Respondents
This is an appeal from an order of a district judge, upheld by His Honour Judge Geddes, relating to the construction and application of Rule 19.5(3)(a) of the Civil Procedure Rules. That rule, which is to be read with section 35 of the Limitation Act 1980, deals with the addition or substitution of a party in an action after the expiry of the limitation period. The main rule provides that the court can only add or substitute a party if the relevant limitation period was current at the time when proceedings were started and the addition or substitution is "necessary". Rule 19.5(3)(a) with which we are directly concerned then goes on to say:
"The addition or 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."
To explain how that arises in the present case it is necessary to say something about the background.
The claimant is Miss Kesslar. In August 1997 a firm of partners called Kundert and Co. acted for Miss Kesslar in the conveyance to her of the property in which she resides. The partners at that time in the firm of Kundert and Co. were Mr Kundert and a lady who was then called Miss Roughley. She has subsequently married and is now Mrs Daniels, but I hope it will not be discourteous if for the sake of clarity I continue to refer to her as Miss Roughley. In August 1998, Kundert and Co. were acquired, if that is the right expression, by the firm of solicitors who are the respondents to this appeal and who were named in the proceedings from which this appeal comes. From 1998 onwards the letterhead of the firm of Moore and Tibbits described the firm as " Moore and Tibbits (incorporating Kundert and Co.)" and also, though irrelevantly to these matters, another firm. Neither Mr Kundert nor Miss Roughley ever became partners in the firm of Moore and Tibbits.
In September 2002 Miss Kesslar had occasion to approach the firm of Moore and Tibbits about a dispute that had broken out with one of her neighbours with regard to access to her garage. I should say now that the nature of Miss Kesslar's complaint in the proceedings with which we are concerned was that Miss Roughley had acted negligently in and about the conveyance of the property, so that she had not secured the necessary access to the garage, nor indeed secured security for Miss Kesslar in that garage. It is important to emphasise that those issues have not been tried; they are still at the stage of allegation. This case is not about Miss Roughley's actual liability but about the procedural matters attending the case that Miss Kesslar wishes to bring in respect of her alleged negligence.
We do not know for certain why Miss Kesslar approached Moore and Tibbits about this matter, save that it seems very likely that she had got to know in some way or other that they were indeed the successors of the solicitors who had acted for her in 1997. She made it clear that it was because of Miss Roughley's actions that she was writing to Moore and Tibbits because on 30th September 2002 she wrote them a letter that, according to her, succeeded a number of unsuccessful attempts to progress the matter over the telephone, that letter starting:
"In 1997, Andrea Roughley on my behalf dealt with the conveyancing and legal aspects of the purchasing of the above property. I am now undergoing a neighbour dispute … I believe that the conveyancing was not dealt with correctly."
On 15th October 2002, Messrs Moore and Tibbits replied to Miss Kesslar saying that they had written to the solicitors who had acted on the other side in that conveyance. They said that the matter was now in the hands of the senior partner of Moore and Tibbits and he would be in touch with Miss Kesslar when a response was received.
We do not know what happened immediately thereafter. However, satisfaction was not obtained by Miss Kesslar. She went to other solicitors, the solicitor who represents her in this action, a Miss Pack. Miss Pack wrote to the senior partner of Moore and Tibbits on 28th May 2003 saying that she had been consulted by Miss Kesslar:
"… with regard to Kundert and Co's conduct of her instructions to act for her in connection with the purchase of the property … I am instructed that Miss Andrea Roughley was the solicitor acting and that the practice of Kundert and Co. was subsequently incorporated into your firm …
It is abundantly clear that, at the time of your instruction in June 1997, you were on notice that the garage was included in the sale and that it was approached via a shared access from Latimer Road."
Various further complaints were made, setting out why it was said that the matter of the garage and access had not been suitably dealt with, and then Miss Pack said:
"… it is already apparent that your firm's negligence has serious and far-reaching financial implications for my client."
Promptly, on 29th May, that is to say the next day, Moore and Tibbits replied to Miss Pack saying:
"Thank you for your letter of 28th May. We confirm that our insurers have been informed."
The next thing that appears to have happened was that Miss Pack wrote a lengthy formal letter of claim, a etter before action under the professional negligence pre-action protocol, in which the complaints made in the informal letter before action were expanded upon, and from which it was clear that the complaint continued to be in respect of what had been allegedly done or not done by Miss Roughley. Having set out the history to some extent in her first paragraph, Miss Pack then said this:
"In short, the claim is for negligence in carrying out the conveyance resulting in a number of problems."
On 17th July 2003 the firm instructed on behalf of Moore and Tibbits' insurers, Messrs Browne Jacobson, wrote to Miss Pack saying that they were taking instructions with regard to the suspension of the limitation period. Again nothing seems to have come of that. It is important that at no time did either Messrs Moore and Tibbits, or their insurers, or their insurers' solicitors take the point that they now insist on in this appeal, that Messrs Moore and Tibbits had nothing to do with what had happened in 1997; Miss Roughley never became a partner of that firm; it was not their responsibility to answer for what she did; and that if Miss Pack and her client had a complaint they should hunt down Miss Roughley and Mr Kundert, wherever they may now be, and sue them. That was unfortunate, because I have no hesitation in saying that the objective appearance of the correspondence, and that which I have little doubt that Miss Pack would have drawn from it, was that Moore and Tibbits were, if not accepting responsibility for Miss Roughley, certainly not making plain that they were a different firm from her. That is of importance because when appreciating the imminent arrival of the end of the limitation period, or at least the arguably imminent arrival of that period, Miss Pack caused counsel to draw the pleadings in this case. They were intituled in the following form: " Miss Beverly Kesslar (claimant) v Moore and Tibbits (incorporating Kundert and Co) (a firm)." Now there is no doubt at all that that would be apparent to anybody to be a claim using the facility provided by Order 81 of the Rules of the Supreme Court, still operative, against a firm of solicitors in respect of their conduct as such. It was made plain in the body of the pleading that this was intended to be what I might call a straightforward and orthodox solicitors negligence claim in which, in order to ensure that all the partners are impleaded, one sues in the name of the firm rather seeking to name those who in fact were partners at the date when the cause of action arose. That is a very obvious course for a claimant, and the reason why there is that rule in Order 81 is perfectly simple: that it would be very unreasonable in many cases to expect a claimant to have to fish around to find out who had been partners in a particular firm at a particular date. It is also important, for the purposes of an issue which arises later, to make clear, which of course is very clear, that the responsibility of partners in respect of an act of negligence is not vicarious. Rather, it springs from, and is a burden that matches, the benefits that English law gives to those who wish to practise in partnership.
This action, as I have said, was intituled against Moore and Tibbits (incorporating Kundert and Co). But the substance of it, made plain in the pleadings, was that the complaint was about what had been done or not done by Miss Roughley. It read as follows:
"1. The Defendants were at all material times a firm of solicitors carrying on business as such for reward from premises at 11a Jury Street, Warwick, CV34 4EH under the title Kundert and Co."
I pause there. The address given was the address of Kundert, as I understand it; it was never the address of Moore and Tibbits. It was then alleged that they held themselves out as being skilled and...
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