The plaintiff was seeking to claim against his employers for personal injuries. There was correspondence with them before action that did not lead to a settlement. When the writ was issued a junior clerk made a mistake and issued it in the very similar name of an associated company of the employers. The defendant challenged the change in the court rules which gave greater freedom to allow the court to add a defendant after the expiry of the limitation period, saying that the alteration was ultra vires the powers of the Rules Committee.
Held: The claim failed. The word ‘mistake’ should not be limited to mistakes without fault. 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: ‘It was a very proper case for amendment. It was a genuine mistake by the plaintiffs solicitors; and the secretary of the two companies must have realised it as soon as he read the writ and the indorsement’.
James J (at first instance) gave permission to allow the amendment: ‘In my judgment, there was a genuine mistake on the part of the junior clerk who issued the writ. Was the mistake one which was misleading or caused any reasonable doubt as to the person intended to be sued? The test is what would a reasonable person receiving this writ, accompanied as it was by the statement of claim, understand from it in regard to the person intended to be sued? The name was not the correct name of the person intended to be sued and there was a misnomer; that misnomer in fact accurately named an existing but different person. In my judgment, a reasonable person would say of this writ: ‘Although on the face of it there is a clear statement that the plaintiff is suing an existing person there is no doubt at all that he intends to sue a different person who has a slightly different name.’ I do not consider that the mistake made was misleading, nor do I consider that it created any doubt as to the person whom the plaintiff intended to sue.’
Judges:
Russell LJ, Denning LJ
Citations:
[1967] 2 QB 703
Jurisdiction:
England and Wales
Cited by:
Overruled – Ketteman v Hansel Properties Ltd HL 1987
Houses were built on defective foundations. The purchasers sued the builders and later the architects who designed them. The defendants argued that the houses were doomed from the start so that the cause of action accrued, not when the physical . .
Cited – Parsons and Another v George and Another CA 13-Jul-2004
The claimant sought to begin proceedings to renew his business tenancy, but the proceedings were issued in the wrong name. He sought to amend the proceedings to substitute the correct defendant, but that application was out of time.
Held: . .
Cited – Signet Group Plc v Hammerson UK Properties Plc CA 9-Dec-1997
An application was made for a new tenancy within the four month period prescribed by section 29(3) of the LTA. The applicants named in error in the application were ‘Signet Group plc’ and not ‘Ernest Jones Ltd’. Hammerson had not been misled and was . .
Cited – Payabi and Another v Armstel Shipping Corporation and Another QBD 1-Apr-1992
A party had been wrongly added in breach of limitation under Hague Convention. There should have been no relation back. Hobhouse J considered the effect of the 1980 Act: ‘But it is clear that Ord. 20, r. 5 must now be read with the [1980] Act and is . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 30 April 2022; Ref: scu.200226
