Actions to enforce arbitration awards were brought, each in the name of a ship-owning company. At the time of the arbitrations the assets of each company had vested in a trustee in bankruptcy appointed under New York law, but the trustee had persuaded the arbitrators that the companies were the proper claimants and had commenced the enforcement actions on the same basis. His decision to do so was intended to avoid the possibility that set-offs would be raised in respect of debts owed by associated ship-owning companies if he sued in his own name. When he started the actions, however, the companies had been wound up and thus ceased to exist. The trustee applied, after the limitation period had expired, to have his name substituted for those of the companies pursuant to O. 20 r 5.
Held: Proceedings under name of a dissolved company cannot be revived after limitation period by trustee. Appeal denied.
Evans LJ said: ‘The rule refers to ‘the party intending to sue or.. intended to be sued’. When it is said that the wrong plaintiff has been named, this must be taken as reference to the intention of persons who caused the writ to be issued, rather than of the person in fact named. Those persons in the present case were the trustee or the bankruptcy estate. They were mistaken in thinking that the companies were still in existence and entitled to sue. If they had known the true facts, they would or might well have named the trustee or the bankruptcy estate as sole plaintiff or as a co-plaintiff. But that was a decision as to who the plaintiffs should be, and no doubt for good reasons they chose to assert the companies’ rights under the awards, rather than whatever rights the trustee or the bankrupt estates had acquired.
The rule envisages that the writ was issued with the intention that a specific person should be the plaintiff. That person can often but not invariably be identified by reference to a relevant description. The choice of identity is made by the persons who bring the proceedings. If having made that choice they use the wrong name, even though the name they sue may be that of a different legal entity, then their mistake as to the name can be corrected. But they cannot reverse their original identification of the party who is to sue. This interpretation of the rule derives not only from the phrase ‘correct the name of the party’ but also from the requirement that the mistake must not have been such as to cause any reasonable doubt as to the identity of the person intending to sue.’
Judges:
Evans LJ
Citations:
Ind Summary 11-Dec-1995, [1996] 2 Lloyd’s Rep 474, [1996] 1 All ER 1017
Jurisdiction:
England and Wales
Citing:
Affirmed – International Bulk Shipping and Services Ltd v The Mineral and Metals Trading Company of India; International Bulk Shipping and Services Ltd v The President of India; Himoff Maritime Enterprises Ltd v The President of India ComC 16-Feb-1994
cw Arbitration – award – limitation period – cause of action arising – implied promise to perform award – breach – RSC Order 15 r.6 – misjoinder and non-joinder of party – principles – RSC Order 15 r.6 – joinder . .
Cited by:
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, Company
Updated: 09 December 2022; Ref: scu.82399