The ship ‘Sardinia Sulcis’ collided with the ‘Al Tawwab’. The charterers of the latter paid damages and so were subrogated to the owners’ rights against the owners of the Al Tawwab. They brought proceedings in rem in the name of ‘the Owners of the ‘Sardinia Sulcis’. Before they did so, the owners assigned their rights to another company, the demise charterers of the vessel. The court was asked to substitute the demise charterers for the owners pursuant to O.20, r 5.
Held: They could. Lloyd LJ summarised the criteria under that rule: ‘The first point to notice is that there is power to amend under the rule even though the limitation period has expired: see O.20, r. 5(2). The second point is that there is power to amend, even though it is alleged that the effect of the amendment is to add a new party after the expiration of the limitation period. But the Court must be satisfied (1) that there was a genuine mistake, (2) that the mistake was not misleading, (3) that the mistake was not such as to cause reasonable doubt as to the identity of the person intending to sue, and (4) that it would be just to allow the amendment.’ and ‘The ‘identity of the person intending to sue’ is a concept which is not all that easy to grasp and can be difficult to apply to the circumstance of a particular case.’ He considered the test to be applied to ascertain ‘the person intended to be sued’: ‘In one sense a plaintiff always intends to sue the person who is liable for the wrong which he has suffered. But the test cannot be as wide as that. Otherwise there could never be any doubt as to the person intended to be sued, and leave to amend would always be given. So there must be some narrower test. In Mitchell v. Harris Engineering the identity of the person intented to be sued was the plaintiffs employers. In Evans v. Charrington it was the current landlord. In Thistle Hotels v. McAlpine the identity of the person intending to sue was the proprietor of the hotel. In The Joanna Borchard it was the cargo-owner or consignee. In all these cases it was possible to identify the intending plaintiff or intended defendant by reference to a description which was more or less specific to the particular case. Thus if, in the case of an intended defendant, the plaintiff gets the right description but the wrong name, there is unlikely to be any doubt as to the identity of the person intended to be sued. But if he gets the wrong description, it will be other wise.’
Stocker LJ said: ‘can the intended plaintiff or defendant be identified by reference to a description which is specific to the particular case – e.g. landlord, employer, owners or ship owners. If the identity of the person intending to sue or be sued appears from such specific description any amendment is one of name; where it does not it will in many if not in all cases involve the description of another party rather than simply the name.’
Lloyd LJ, Stocker LJ
[1991] 1 Lloyd’s Rep 201
England and Wales
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.
Updated: 21 September 2021; Ref: scu.254524 br>