Morgan Est (Scotl and) LimitedHanson Concrete Products Ltd
| Jurisdiction | England & Wales |
| Judge | Judge Richard Havery QC |
| Judgment Date | 22 July 2004 |
| Neutral Citation | [2004] EWHC 1778 (TCC) |
| Docket Number | Case No: HT–03–391 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 22 July 2004 |
[2004] EWHC 1778 (TCC)
IN THE HIGH COURT OF JUSTICE
TECHNOLOGY AND CONSTRUCTION COURT
QUEEN'S BENCH DIVISION
His Honour Judge Richard Havery QC
Case No: HT–03–391
Mr Paul Reed (instructed by Kennedys) for the claimant
Mr Benjamin Pilling (instructed by Vizards Wyeth) for the defendant
Hearing date: 16 July 2004
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
Judge Richard Havery QC:
This is an application on the part of the claimant to amend the claim by the addition of two new claimants. There is also a proposed amendment to the text of the particulars of claim. It is common ground that that amendment stands or falls with the amendments the subject of the application.
The claim is a claim for damages for breach of contract. The application has proceeded on the basis that the limitation period had not expired when the claim was brought on 10 November 2003. The defendant, however, reserves its position on that point. It is common ground that the limitation period had expired before the application was made.
The claimant is a company known as Morgan Est (Scotland) Limited. It was formerly known as Miller Civil Engineering Services Limited. It is common ground that the contracting party was another company, Miller Civil Engineering Limited. On 13 October 2000 pursuant to the terms of a hive down agreement Miller Civil Engineering Limited transferred, among other things, the benefit of the contract to Miller Civil Engineering Services Limited. By a sale and purchase agreement, the shares in Miller Civil Engineering Services Limited were transferred from Miller Group Limited to Morgan Sindall plc on l0 May 2001. On 1October 2001 Miller Civil Engineering Services Limited transferred all its assets to Morgan Est plc, which is also a wholly owned subsidiary of Morgan Sindall plc. Miller Civil Engineering Services Limited changed its name to Morgan Est (Scotland) Limited on 24 October 2001.
In the particulars of claim it is stated that the claimant was the contracting party. As indicated above, it was not the contracting party. From l3 October 2000 until l October 2001 it was the assignee of the contracting party. When the proceedings were issued, the claim had been assigned to Morgan Est plc.
The application is an application to add Miller Civil Engineering Limited as first claimant and assignor to the existing claimant, which is sought to be made the second claimant, and to add Morgan Est plc as third claimant and existing assignee of the claim. It is sought to amend the text of the particulars of claim by pleading the relevant assignments.
The reason for seeking to loin Miller Civil Engineering Limited to the claim was to comply with procedural requirements in the event that the defendant took objection to its non-joinder.
The relevant part of the Civil Procedure Rules is Part 19.5, which applies to a change of parties after the end of a period of limitation. Part 19.5 reads, so far as material, as follows:
(2) The court may add or substitute a party only if—
(a) the relevant limitation period was current when the proceedings were started; and
(b) the addition or substitution is necessary.
(3) 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;
(b) the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant;…
Mr Reed submitted that paragraph (3)(b) applied to the addition of the proposed first claimant. Re submitted that paragraph (3)(a) applied to the proposed addition, by way of substitution, of the third claimant. It was to the addition of the third claimant that Mr Pilling principally objected. He was content to let the application to join the proposed first claimant stand or fall with the application to join the proposed third claimant.
Mr Reed submitted that Morgan Est (Scotland) Limited was named in the claim form in mistake for Morgan Est plc. The principal evidence on this point appears in a witness statement of Mr Shane Sayers, a partner in the firm of Kennedys, the solicitors acting for the claimant. His evidence was that a company search was made in the name of Miller Civil Engineering Services Limited. The search indicated that that company had changed its name to Morgan Est (Scotland) Limited. That is why the claim form identified the claimant as Morgan Est (Scotland) Limited (formerly Miller Civil Engineering Services Limited). The company search indicated to Mr Sayers that it was appreciated that there had been a transfer of assets from Miller Civil Engineering Limited to Miller Civil Engineering Services Limited. The company search did not reveal that the claim had been transferred to Morgan Est plc. Accordingly, said Mr Sayers, it appeared that the mistake as to the identity of the claimant occurred because it was not appreciated that there had been a further transfer of assets. It was the intention throughout to bring the claim in the name of the party holding the right to bring the claim. Morgan Est (Scotland) Limited and Morgan Est plc were, at the date the claim form was issued, and remain, members of the same group of companies. At the date the proceedings were issued it was believed that the correct claimant was Morgan Est (Scotland) Limited. Mr Sayers went on to say that the reason why the mistake was not brought to the attention of Kennedys was probably because Kennedys dealt with the individuals involved in the works and at a higher level with the parent company Morgan Sindall plc.
The most recent authority on this subject is the decision of the Court of Appeal in Parsons v George [2004] EWCA (Civ) 912. In that case Dyson LJ, with whom Morritt V-C and Clarke LJ agreed, reviewed the history of the subject via the Rules of the Supreme Court, Order 20, rule 5. He referred in paragraph 13 of his judgment to Evans v Charrington & Co Ltd [1983] 1 QB 810, a decision on the application of Order 20, rule 5. In that case, a tenant made an application to the county court for a new tenancy, erroneously naming C as the landlord and respondent to the application. The lease had been made between C as landlord and E as tenant. But C had assigned the reversion to B. The judge allowed E to add B as an additional respondent to the application. That decision was upheld by a majority of the Court of Appeal.
In paragraph 25 of his judgment, Dyson LJ expressed the view that it would be surprising if the effect of the Civil Procedure Rules were to deny to the court jurisdiction to allow the addition or substitution of parties after the expiry of a relevant limitation period in circumstances where the court had previously enjoyed such jurisdiction. In paragraph 41 he cited with approval, as indicating the proper construction of CPR 19.5(3)(a), the test suggested by Lloyd LJ (with whom Stocker LJ and Sir George Waller agreed) in The Sardinia Sulcis and Al Tawwab [1991] 1 Lloyd's LR 201, 207. Lloyd LJ said this:
It is thus established by three or more decisions of the Court of Appeal that a name may be "corrected" within the meaning of Order 20, r 5(3), even though it involves substituting a different name altogether, and the name of a separate legal entity, and even though it is objected (see per Lord Justice Donaldson in Evans v Charrington & Co at p 822) that the effect of substituting a new name will be to substitute a new party. But the amendment will not be allowed where there is reasonable doubt as to the identity of the person intending to sue or intended to be sued.
The "identity of the person intending to sue" is a concept which is not all that easy to grasp, and can be difficult to apply to the circumstances of a particular case, as is shown by the fact that in two of the cases to which I have referred there has been a dissenting judgment.
In one sense a plaintiff always intends to sue the person who is liable for the wrong which he has suffered. But the test cannot be as wide as that. Otherwise there could never be any doubt as to the person intended to be sued, and leave to amend would always be given. So there must be some narrower test. In Mitchell v Harris Engineering the identity of the person intended to be sued was the plaintiff's employers. In Evans v Charrington it was the current landlord. In Thistle Hotels v McAlpine the identity of the person intending to sue was the proprietor of the hotel. In The Joanna Borchard it was the cargo-owner or consignee. In all these cases it was possible to identify the intended plaintiff or intended defendant by reference to a description which was more or less specific to the particular case. Thus if, in the case of an intended defendant, the plaintiff gets the right description but the wrong name, there is unlikely to be any doubt as to the identity of the person intended to be sued. But if he gets the wrong description, it will be otherwise. The point can be illustrated by the facts of Rodriguez v RJ Parker. In that case the identity of the intended defendant was the driver of a particular car. It was held that there was a mistake as to name. But if the plaintiffs had sued the driver of a different car, there would have been a mistake as to identity. He would have got the wrong description.
In Parsons v George the court...
To continue reading
Request your trial
- AMB Generall Holding AG v Manches and Others
-
Bespoke Couture Ltd v Artpower Ltd and another
...hold that the case does fall within the Sardinia Sulcis test. I need say no more than that I think the judge was right when he said [2004] EWHC 1778 (TCC) at [17]: "There can be no doubt that the claimant and Kennedys [the solicitors] intended that the claimant should be that person [i.e. ......