Summary

RSC O.20 r.5(2) and (3) permit the correction of the name of a party even though the effect is to substitute a new party and although a limitation period has expired. Those rules apply to an application to renew a business tenancy under Part II of the Landlord and Tenant Act 1954.

Facts

An application under s.24(1) Landlord and Tenant Act 1954 was made, in error, in the name of the parent company, Signet Group plc rather than its subsidiary, Ernest Jones Ltd, which was actually the tenant. Both Signet and Ernest Jones Ltd applied to amend the application pursuant to O.20 r.5(3), which provides that in the case of a genuine mistake the name of a party may be corrected even though the effect would be to substitute a new party. Under O.20 r.5(2) such an amendment may be made after any period of limitation has expired if the court thinks it is just to do so. The applicants succeeded before the District Judge and the Judge but the landlord, Hammerson, appealed. The issue on appeal was whether the case of Evans v Charrington (1983) 1 QB 810 still represented the law. In that case the CA allowed amendment under O.20 r.5(3) of an application under the 1954 Act where a tenant had mistakenly named a former landlord rather than his present landlord. The landlord argued that the effect of the opinions of the HL in Ketteman & Ors v Hansel Properties Ltd & Ors (1988) (which was concerned with the addition of a defendant pursuant to an application under O.15 r.6), was that if leave to amend was given under O.20 r.5(3) substituting a new party the amendment did not relate back to the date of the writ or the originating summons. If the amendment were made it would therefore be out of time under the 1954 Act. Leave to amend should therefore be refused because it would be useless.

Held

(1) There was always power without O.20 r.5(3) to correct a misnomer even if the limitation period had expired. O.20 r.5(3) allowed the correction of a name even where this meant substituting a new party. (2) It was necessary to consider the history of O.20. Rules 2-5 were introduced to alleviate injustice in the previous law and the change was approved in Mitchell v Harris Engineering Company Ltd (1967) 2 QB 703, when the CA held that the effect of amending pursuant to O.20 r.5(3) was to defeat any limitation defence that might otherwise have been available. (3) In Evans v Charrington it was on any view decided that a period of limitation such as that set out in s.29(3) of the 1954 Act (setting a limit for the application to be made) was a relevant period of limitation within O.20 r.5(2), as the wording of the rule at that time did not refer to specific statutes. The court approved Teltscher Bros Ltd v London & India Dock Investments (1989) in construing O.20 r.5(3) as still applying to a period of limitation under s.29(3) of the 1954 Act. (4) The phrase "relevant period of limitation" in O.20 r.5 should not be given the same restrictive meaning as that phrase has in O.15 r.6 (the court disapproved the judgment on this point in The Anna L (1994) 2 Lloyd's Rep 379). The difference between the provisions was deliberate and reflected their different aims. (5) O.20 r.5(3) was designed to allow a correction which related back and if a party can bring themselves within that rule then a correction will relate back. (6) On the facts, the plaintiffs brought themselves within the rule and it was just to allow the amendment. The point taken by the landlords was technical and without merit. Appeal dismissed.