Ord 16, rr. 2 and 11 Ord 16, r 2, provided that, where an action had been commenced in the name of a wrong plaintiff, the court might, if satisfied that it had been so commenced through bona fide mistake and that it was necessary for the determination of the real matter in dispute so to do, order any other person to be substituted. Ord. 16, r. 11, provided that no cause or matter should be defeated by reason of the misjoinder or nonjoinder of parties and that the court might in any cause or matter deal with the matter in controversy so far as regarded the rights and interests of the parties actually before it, and also that the court might at any stage of the proceedings order that the names of any persons improperly joined as plaintiffs or defendants be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined be added.
Held: A non-existent person cannot sue.
Russell J said that rule 2 meant that, where an action had been commenced between two living parties by a living plaintiff and that plaintiff turned out afterwards to be the wrong person, the court could substitute another for him. ‘But it does not justify the court, in creating a plaintiff in an action for the first time’ and the ‘parties’ referred to in rule 11 were living persons, and that that rule did not carry the plaintiff any further. The Rules of 1883 had made no change in the position, which was still as it had been under the Act of 1852.
Judges:
Russell J
Citations:
[1920] 2 Ch 24, [1920] All ER 419
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Kimathi and Others v The Foreign and Commonwealth Office (Strike out) QBD 24-Nov-2016
The defendant sought to have struck out from the group litigation, as a nullity the claim by one claimant who had been deceased at the time of issue. His PRs responded that the court could deal with the matter under CPR Pt 3.
Held: The court’s . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 13 April 2022; Ref: scu.571919
