Parsons v George
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Clarke,The Vice-Chancellor |
| Judgment Date | 13 July 2004 |
| Neutral Citation | [2004] EWCA Civ 912 |
| Docket Number | Case No: B2/2004/0080 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 July 2004 |
[2004] EWCA Civ 912
The Vice-Chancellor
Lord Justice Clarke and
Lord Justice Dyson
Case No: B2/2004/0080
RM304205
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ROMFORD COUNTY COURT
Deputy District Judge Lawrence
Royal Courts of Justice
Strand,
London, WC2A 2LL
Ms Michelle Stevens-Hoare (instructed by Messrs Cartwright, Cunningham Haselgrove and Co) for the Appellant
Ms Katherine McQuail (instructed by Messrs Birkell Long) for the Respondent
This appeal raises the question whether the court has power to permit a tenant who is applying for a new tenancy under Part II of the Landlord and Tenant Act 1954 ("LTA") to amend his claim form to add or substitute a party after the end of the period specified by section 29(3) of the LTA as being the period after which an application may not be entertained by the court. Deputy District Judge Lawrence decided that there is no such power, whether under CPR 19.2, 19. 5 or 3.10. He gave permission to appeal. On 14 January 2004, HH Judge Richardson ordered that the appeal be transferred to this court on the grounds that it raised an important point of principle and practice.
The facts
By a lease dated 12 July 1991 between Mrs Elsie Stedman as lessor and the claimants as lessees, the premises known as Mansted House, 1072 High Road, Chadwell Heath, Romford, Essex were demised for a term of 12 years from 25 December 1990. The demised premises have at all material times been used as a school. The lease was, therefore, subject to Part II of the LTA. Mrs Stedman died on 30 August 1998. The defendants are the executors of Mrs Stedman's will. Upon the expiry of the 12 year term created by the lease, the tenancy continued by reason of section 24(1) of the LTA. Messrs Birkett Long have at all material times acted as solicitors for the defendants and Mrs Pamela Audrey Purcell. By a notice dated 26 March 2003 served by Birkett Long under section 25 of the LTA, the defendants terminated the tenancy on 4 October 2003. The notice, which named the landlord as "Philip William George and Ivor Bernard Loochin as executors of the late Elsie Fanny Stedman", stated that the defendants would not oppose an application for a new tenancy. The covering letter sent by Birkett Long started:
"Dear Sir & Madam
Mrs Pamela Audrey Purcell
Termination Lease Mansted House Chadwell Heath
We act for your landlords, the trustees of the late Mrs E F Stedman."
On 2 April, the claimants served a counter-notice on Birkett Long stating that they were not willing to give up possession. Birkett Long wrote to the claimants' solicitors on 10 April saying: "We acknowledge receipt of your counter-notice and await hearing from you further". The heading to this letter referred to Mrs Purcell, but not to the defendants. On 16 April, the claimants' solicitors wrote to Birkett Long putting forward the claimants' offer to buy the freehold for £90,000. By their reply dated 28 April, Birkett Long stated that their client was not interested in selling the property at the figure put forward, asking the claimants' solicitors to note that the freehold had been transferred by the defendants to Mrs Purcell. The transfer was dated 23 April. Birkett Long wrote on 6 May saying that they were continuing to act for Mrs Purcell.
On 25 June the claimants issued a claim form applying for a new tenancy under section 29 of the LTA. They named the defendants as "Philip William George and Ivor Bernard Loochin as executors of the late Elsie Fanny Stedman". The claim form was duly served by the court on 2 July 2003. On 1 August, Birkett Long filed an acknowledgement of service, stating that the defendants were objecting to a new tenancy on the grounds that they were not the "competent landlord" (ie "the landlord" within the meaning of section 44(1) of the LTA) . They wrote to the claimants' solicitors asking for confirmation that the claim would be discontinued since it had been issued against the wrong party. It was in response to this letter that on 15 September, the claimants applied to the court for an order that Pamela Audrey Purcell be substituted for the defendants because "by virtue of a mistake the said Philip William George and Ivor Bernard Loochin were incorrectly named as the defendants herein when proceedings were issued".
It is common ground that at all material times until 23 April 2003 the defendants were the landlord as defined by section 44, and that upon the execution of the transfer to Mrs Purcell on 23 April 2003, she became the landlord as so defined. This reflects the decision in Piper v Muggleton [1956] 2 QB 569, 578 where Jenkins LJ, giving the judgment of the court, said that it is necessary that at every stage of the proceedings the person joined as "the landlord" should in fact answer that description according to the statutory definition, and that if there is a change of interest by which one person ceases to be, and another becomes the landlord, then that other person becomes the "landlord" for the purposes of all further steps.
Part II of the LTA
Section 24(1) provides:
"A tenancy to which this Part of this Act applies shall not come to an end unless terminated in accordance with the provisions of this Part of this Act; and subject to the provisions of section twenty-nine of this Act, the tenant under such a tenancy may apply for a new tenancy—
(a) if the landlord has given notice under section 25 of this Act to terminate the tenancy…."
Section 29(1) provides that on an application under section 24(1) for a new tenancy, the court shall make an order for the grant of a new tenancy. Section 29(3) provides:
"No application under subsection (1) of section twenty-four of this Act shall be entertained unless it is made not less than two nor more than four months after the giving of the landlord's notice under section twenty-five of this Act…."
Section 44 defines the expression "the landlord" where it appears in Part II of the LTA. CPR 56 PD para 3.4 provides that "the person who, in relation to the claimant's current tenancy, is the landlord as defined by section 44 of the 1954 Act must be a defendant".
Change of parties after the expiry of a relevant limitation period: general
The question of whether to grant permission to add a new cause of action or a new defendant after the expiry of a relevant period of limitation has vexed the courts for many years. Various attempts have been made to balance the competing interests of claimants and defendants. On the one hand, it may be unjust to a defendant to add a person as a party to proceedings if this would deny him an accrued limitation defence. Thus it was that there was a long established practice at common law that a claimant would not be permitted to join a person as defendant to an existing action at a time when the defendant could have relied on a statute of limitation as barring the claimant from bringing a fresh claim against him: see, for example, Liff v Peasely [1980] 1 WLR 781, at p791C per Stephenson LJ and p799B per Brandon LJ. The reason for this rule of practice was explained by the House of Lords in Ketteman v Hansel Properties Ltd [1987] 1 AC 189 as being that there would be no "useful purpose" in allowing the amendment, since the new defendant was not deemed to have become a party before the actual date of the joinder, and would therefore have an unanswerable defence to the claim.
On the other hand, there are circumstances in which it would be manifestly unjust to a claimant to refuse an amendment to add or substitute a defendant even after the expiry of the relevant limitation period. A common example of such a case is where the claimant has made a genuine mistake and named the wrong defendant, and where the correct defendants have not been misled, and they have suffered no prejudice in relation to the proceedings (except for the loss of their limitation defence) .
In the pre-CPR period
Before the introduction of RSC Ord 20 r 5, the balance was tilted very heavily in favour of defendants. This is well illustrated by Davies v Elasby Brothers Ltd [1961] 1 WLR 170 where a writ had been issued against "Elsby Brothers (a firm)". In fact, the firm's business had been taken over by Elsby Brothers Ltd before the proceedings had been issued. By the time the plaintiff applied for leave to amend the writ to change the name of the defendant, the limitation period had expired. This court held that the amendment involved the addition of a new defendant, and was not merely the correction of a misnomer. Accordingly, applying the long established rule of practice to which I have referred, the court held that the amendment should not be allowed.
RSC Ord 20 r 5(2) to (5) were introduced to overcome the obvious injustice of such decisions. These rules were subsequently amended, but it is not necessary for the purposes of present appeal to trace the history in detail. The subsequent amendments did not significantly alter the effect of the rules. A challenge to their validity (on the grounds that they were ultra vires the Rule Committee) was rejected by this court in Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703. The court held that, as a matter of construction, the rule permitted an amendment in the circumstances therein specified and that the amendment related back to the date of the issue of the proceedings (in that case, the issue of the writ) : see per Lord Denning MR at p719A. In other words, the court interpreted the new rules as permitting a departure from the long established rule of practice to which I have...
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