The tenant sought a new lease and served a notice. The notice named the former landlord not the current landlord.
Held: Order 20 could be used to correct the name where the error was a mere mistaken description of the correct party, but not a mistake as to the actual identity of the party. No injustice would be created here by requiring the correct landlord to make good his reply.
Donaldson LJ said: ‘In applying Ord. 20, r. 5 (3) it is, in my judgment, important to bear in mind that there is a real distinction between suing A in the mistaken belief that A is the party who is responsible for the matters complained of and seeking to sue B, but mistakenly describing or naming him as A and thereby ending up suing A instead of B. The rule is designed to correct the latter and not the former category of mistake. Which category is involved in making any particular case depends upon the intentions of the person making the mistake and they have to be determined on the evidence in light of al the surrounding circumstances. In the instant case I have not the slightest difficulty in accepting Mr. Greenwood’s assertion that he intended to sue the relevant landlord under the Act. After all, he was responding on behalf of his lessee client to a notice to quit given on behalf of the landlord and it would have been surprising, to say the least, if he had thought that it was appropriate to respond by claiming a new lease from the managing agent or other stranger to the landlord and tenant relationship. Accordingly I would conclude that he made a genuine mistake of a character to which Ord. 20, r. 5 (3) can apply.’
Judges:
Donaldson LJ
Citations:
[1983] QB 810, [1983] 2 WLR 117
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Liff v Peasley CA 1980
The court will not add a person as a defendant to an existing action if the claim was already statute-barred and he wished to rely on that defence, and if the court allows such addition ex parte it will not, on objection allow the addition to stand. . .
Cited – Baxendale v Davstone (Holdings) Ltd CA 1982
. .
Cited by:
Applied – Horne-Roberts (a Child) v Smithkline Beecham plc and Another CA 18-Dec-2001
The court has a power to order substitution of a party though the limitation period, and even the ‘long stop’ limitation period had expired. The claimant child sought damages after a vaccination. The batch had been attributed to the wrong . .
Cited – Adelson and Another v Associated Newspapers Ltd CA 9-Jul-2007
The claimant sought to add the name of a further claimant. The defendant objected, saying that it was after the expiry of the limitation period.
Held: The claimant was seeking to use the rules for substitution of parties to add a party. In . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Landlord and Tenant
Updated: 23 March 2022; Ref: scu.182315