Parsons & Anor v George & Anor [2004] EWCA Civ 912

Case No B2/2004/0080[2004] EWCA Civ 912
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ROMFORD COUNTY COURT
Deputy District Judge Lawrence
RM304205
Venue Royal Courts of JusticeDate Tuesday 13 th July 2004
Strand,
London, WC2A 2LL
Before
THE VICE-CHANCELLORLORD JUSTICE CLARKELORD JUSTICE DYSON
Between
Parsons and AnotherAppellant/George and AnotherRespondent/Defendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms Michelle Stevens-Hoare (instructed by Messrs Cartwright, Cunningham Haselgrove and Co) for AppellantMs Katherine McQuail (instructed by Messrs Birkell Long) for Respondent
Judgment
[1]This appeal raises the question whether the court has power to permit a tenant who is applying for a new tenancy under Part II of the Landlord and Tenant Act 1954 (“LTA”) to amend his claim form to add or substitute a party after the end of the period specified by section 29(3) of the LTA as being the period after which an application may not be entertained by the court. Deputy District Judge Lawrence decided that there is no such power, whether under CPR 19.2, 19.5 or 3.10. He gave permission to appeal. On 14 January 2004, HH Judge Richardson ordered that the appeal be transferred to this court on the grounds that it raised an important point of principle and practice.

The facts

[2]By a lease dated 12 July 1991 between Mrs Elsie Stedman as lessor and the claimants as lessees, the premises known as Mansted House, 1072 High Road, Chadwell Heath, Romford, Essex were demised for a term of 12 years from 25 December 1990. The demised premises have at all material times been used as a school. The lease was, therefore, subject to Part II of the LTA. Mrs Stedman died on 30 August 1998. The defendants are the executors of Mrs Stedman’s will. Upon the expiry of the 12 year term created by the lease, the tenancy continued by reason of section 24(1) of the LTA. Messrs Birkett Long have at all material times acted as solicitors for the defendants and Mrs Pamela Audrey Purcell. By a notice dated 26 March 2003 served by Birkett Long under section 25 of the LTA, the defendants terminated the tenancy on 4 October 2003. The notice, which named the landlord as “Philip William George and Ivor Bernard Loochin as executors of the late Elsie Fanny Stedman”, stated that the defendants would not oppose an application for a new tenancy. The covering letter sent by Birkett Long started:
“Dear Sir & Madam Mrs Pamela Audrey Purcell Termination Lease Mansted House Chadwell Heath We act for your landlords, the trustees of the late Mrs E F Stedman. ”
On 2 April, the claimants served a counter-notice on Birkett Long stating that they were not willing to give up possession. Birkett Long wrote to the claimants’ solicitors on 10 April saying:
“We acknowledge receipt of your counter-notice and await hearing from you further”
. The heading to this letter referred to Mrs Purcell, but not to the defendants. On 16 April, the claimants’ solicitors wrote to Birkett Long putting forward the claimants’ offer to buy the freehold for £90,000. By their reply dated 28 April, Birkett Long stated that their client was not interested in selling the property at the figure put forward, asking the claimants’ solicitors to note that the freehold had been transferred by the defendants to Mrs Purcell. The transfer was dated 23 April. Birkett Long wrote on 6 May saying that they were continuing to act for Mrs Purcell. Mrs Pamela Audrey Purcell Termination Lease Mansted House Chadwell Heath We act for your landlords, the trustees of the late Mrs E F Stedman. ”

Termination Lease Mansted House Chadwell Heath

[3]On 25 June the claimants issued a claim form applying for a new tenancy under section 29 of the LTA. They named the defendants as “Philip William George and Ivor Bernard Loochin as executors of the late Elsie Fanny Stedman”. The claim form was duly served by the court on 2 July 2003. On 1 August, Birkett Long filed an acknowledgement of service, stating that the defendants were objecting to a new tenancy on the grounds that they were not the “competent landlord” (ie “the landlord” within the meaning of section 44(1) of the LTA). They wrote to the claimants’ solicitors asking for confirmation that the claim would be discontinued since it had been issued against the wrong party. It was in response to this letter that on 15 September, the claimants applied to the court for an order that Pamela Audrey Purcell be substituted for the defendants because “by virtue of a mistake the said Philip William George and Ivor Bernard Loochin were incorrectly named as the defendants herein when proceedings were issued”.[4]It is common ground that at all material times until 23 April 2003 the defendants were the landlord as defined by section 44, and that upon the execution of the transfer to Mrs Purcell on 23 April 2003, she became the landlord as so defined. This reflects the decision in Piper v Muggleton [1956] 2 QB 569, 578 where Jenkins LJ, giving the judgment of the court, said that it is necessary that at every stage of the proceedings the person joined as “the landlord” should in fact answer that description according to the statutory definition, and that if there is a change of interest by which one person ceases to be, and another becomes the landlord, then that other person becomes the “landlord” for the purposes of all further steps.

Part II of the LTA

[5]Section 24(1) provides:
“A tenancy to which this Part of this Act applies shall not come to an end unless terminated in accordance with the provisions of this Part of this Act; and subject to the provisions of section twenty-nine of this Act, the tenant under such a tenancy may apply for a new tenancy— (a) if the landlord has given notice under section 25 of this Act to terminate the tenancy….”
[6]Section 29(1) provides that on an application under section 24(1) for a new tenancy, the court shall make an order for the grant of a new tenancy. Section 29(3) provides:
“No application under subsection (1) of section twenty-four of this Act shall be entertained unless it is made not less than two nor more than four months after the giving of the landlord’s notice under section twenty-five of this Act….”
[7]Section 44 defines the expression “the landlord” where it appears in Part II of the LTA. CPR 56 PD para 3.4 provides that “the person who, in relation to the claimant’s current tenancy, is the landlord as defined by section 44 of the 1954 Act must be a defendant”.

Change of parties after the expiry of a relevant limitation period: general

[8]The question of whether to grant permission to add a new cause of action or a new defendant after the expiry of a relevant period of limitation has vexed the courts for many years. Various attempts have been made to balance the competing interests of claimants and defendants. On the one hand, it may be unjust to a defendant to add a person as a party to proceedings if this would deny him an accrued limitation defence. Thus it was that there was a long established practice at common law that a claimant would not be permitted to join a person as defendant to an existing action at a time when the defendant could have relied on a statute of limitation as barring the claimant from bringing a fresh claim against him: see, for example, Liff v Peasely [1980] 1 WLR 781, at p791C per Stephenson LJ and p799B per Brandon LJ. The reason for this rule of practice was explained by the House of Lords in Ketteman v Hansel Properties Ltd [1987] 1 AC 189 as being that there would be no “useful purpose” in allowing the amendment, since the new defendant was not deemed to have become a party before the actual date of the joinder, and would therefore have an unanswerable defence to the claim.[9]On the other hand, there are circumstances in which it would be manifestly unjust to a claimant to refuse an amendment to add or substitute a defendant even after the expiry of the relevant limitation period. A common example of such a case is where the claimant has made a genuine mistake and named the wrong defendant, and where the correct defendants have not been misled, and they have suffered no prejudice in relation to the proceedings (except for the loss of their limitation defence).

In the pre-CPR period

[10]Before the introduction of RSC Ord 20 r 5, the balance was tilted very heavily in favour of defendants. This is well illustrated by Davies v Elasby Brothers Ltd [1961] 1 WLR 170 where a writ had been issued against “Elsby Brothers (a firm)”. In fact, the firm’s business had been taken over by Elsby Brothers Ltd before the proceedings had been issued. By the time the plaintiff applied for leave to amend the writ to change the name of the defendant, the limitation period had expired. This court held that the amendment involved the addition of a new defendant, and was not merely the correction of a misnomer. Accordingly, applying the long established rule of practice to which I have referred, the court held that the amendment should not be allowed.[11]RSC Ord 20 r 5(2) to (5) were introduced to overcome the obvious injustice of such decisions. These rules were subsequently amended, but it is not necessary for the purposes of present appeal to trace the history in detail. The subsequent amendments did not significantly alter the effect of the rules. A challenge to their validity (on the grounds that they were ultra vires the Rule Committee) was rejected by this court in Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703. The court held that, as a matter of construction, the rule permitted an amendment in the circumstances therein specified and that the amendment related back to the date of the issue of the proceedings (in that case, the issue of the writ): see per Lord Denning MR at p719A. In other words, the court interpreted the new rules as permitting a departure from the long established rule of practice to which I have referred. This view of the effect of Mitchell was expressed in Signet Group plc v Hammerson Properties plc (CA, only reported in the Times, 15 December 1997): see p 10 of the transcript, approving what Phillips J had said in The Anna L [1994] 2 LLR 370 on this point.[12]RSC Ord 20 r.5 as it stood on the eve of the introduction of the CPR provided as follows:
“5. – (1) Subject to Order 15, rules 6,7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct. (2) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so. In this paragraph “any relevant period of limitation” includes a time limit which applies to the proceedings in question by virtue of the Foreign Limitation Periods Act 1984. (3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue or, as the case may be, intended to be sued. (4) An amendment to alter the capacity in which a party sues may be allowed under paragraph (2) if the new capacity is one which that party had at the date of the commencement of the proceedings or has since acquired. (5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.”
[13]There were several decisions on the application of Ord 20 r 5 to claims for a new tenancy under section 29(3) of the LTA. I propose to refer to two of them. In Evans v Charrington & Co Ltd [1983] 1 QB 810, a lease was made between C as landlord and E as tenant. It was subject to Part II of the LTA. C assigned the reversion to B. Both C and B were members of the same group of companies. E then entered into a new three year lease with B. After the expiry of the term created by that lease, C (who acted as B’s managing agent) wrote to E enclosing a notice under section 25 of the LTA. On receipt of the notice, E wrote to C saying that it was not prepared to give up possession and would apply to the county court for a new tenancy. It made an application for a new tenancy, but erroneously named C as the landlord. The judge allowed E to join B as an additional respondent to the application. That decision was upheld by this court on appeal (Donaldson and Griffiths LJJ, Waller LJ dissenting). Donaldson LJ said that this was a mistake which fell within the meaning of Ord 20 r 5(3). He said at p 821G:
“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 any particular case depends upon the intentions of the person making the mistake and they have to be determined on the evidence in the light of all 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 any 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.”
[14]He then went on to say that, since neither C nor B was misled or could have had any doubt as to the identity of the person intended to be sued, justice required the court to exercise its discretion in favour of E and allow the amendment.[15]Griffiths LJ said at p 825D:
“Is the rule to be limited to mere mis-spelling or some other slip such as leaving out one word in the long title of a company so that looking at the name on the proceedings the nature of the mistake can readily be seen; or is it to be more liberally construed so that it will cover the case when entirely the wrong name has been used? I see no reason why it should not include a case where entirely the wrong name has been used, provided it was not misleading, or such as to cause any reasonable doubt as to the identity of the person intended to be sued. The identity of the person intended to be sued is of course vital. But in this case I have no doubt that the identity of the person intended to be sued was the current landlord, Bass. The wording of the rule makes it clear that it is not the identity of the person sued that is crucial, but the identity of the person intended to be sued, which is a very different matter.”
[16]By the time of this decision, Parliament had also intervened to regulate the manner in which the balance between the competing interests of claimants and defendants should be struck in relation to allowing “new claims”. This was done by the enactment of section 35 of the Limitation Act 1980 (“the 1980 Act”). This provides that for the purposes of the 1980 Act, any new claim made in the course of any action shall be deemed to be a separate action, and to have been commenced in the case of any new claim (other than such a claim in or by way of third party proceedings) on the same date as the original action (section 35(1)(b)). A new claim includes the addition or substitution of a new party (subsection (2)). Except as provided by section 33 or rules of court, the court may not allow a new claim within section 35(1)(b), other than an original set-off or counterclaim, to be made “in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim” (subsection (3)). Subsection (4) provides that rules of court may provide for allowing a new claim to which subsection (3) applies to be made, but only if the conditions specified in subsection (5) are satisfied, and subject to any further restrictions the rules may impose.[17]The second authority to which I wish to refer is Signet. In that case, at all material times the landlord was Hammerson UK Properties plc and the tenant Ernest Jones Ltd (a company in the Signet Group of Companies). An application was made for a new tenancy within the four month period prescribed by section 29(3) of the LTA. The applicants named in the application were “Signet Group plc” and not “Ernest Jones Ltd”. This was an error. Hammerson had not been misled and was in no reasonable doubt as to the identity of the person intending to sue. Application was made under RSC Ord 20 r 5(3) for leave to amend the name on the application. The four month period had by now expired. This court followed Evans and held that on the facts it was just to allow the amendment.[18]Two important features should be noted about section 35. First, it introduces a statutory relation back to the date of the original action where, pursuant to the rules, a new party is added or substituted after the expiry of a limitation period, if the limitation period is one prescribed by the 1980 Act itself. This is clear from the words “after the expiry of any time limit under this Act” (emphasis added). Secondly, there is nothing in the 1980 Act which purports to take away from the court the power it previously had pursuant to RSC Ord 20 r 5 to allow an amendment after the expiry of a limitation period which is not prescribed by the 1980 Act: see also Signet (p 12 of the transcript).[19]It is now time to turn to the CPR, since the outcome of this appeal turns on the application of the CPR and not RSC Ord 20 r 5. The rules which are central to the arguments in the present appeal are CPR 3.10, 19.2 and 19.5. So far as material, these provide:
“3.10 Where there has been an error of procedure such as a failure to comply with a rule or practice direction – (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make an order to remedy the error.” … 19.2 (1) This rule applies where a party is to be added or substituted except where the case falls within rule 19.5 (special provisions about changing parties after the end of a relevant limitation period). (2) The court may order a person to be added as a new party if – (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue. (3) The court may order any person to cease to be a party if it is not desirable for that person to be party to the proceedings. (4) The court may order a new party to be substituted for an existing one if – (a) the existing party’s interest or liability has passed to the new party; and (b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.” … 19.5 (1) This rule applies to a change of parties after the end of a period of limitation under – (a) the Limitation Act 1980 (b) the Foreign Limitation Periods Act 1984; or (c) any other enactment which allows such a change, or under which such a change is allowed. (2) The court may add or substitute a party only if – (a) the relevant limitation period was current when the proceedings were started; and (b) the addition or substitution is necessary. (3) The addition or substitution of a party is necessary only if the court is satisfied that – (a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party; (b) the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or (c) the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party.”
[20]The current version of CPR r 19.5(1) was introduced by the Civil Procedure (Amendment) Rules 2000 (S.I. 2000 No.221). The original version provided as follows:
“19.5 (1) This rule applies to a change of parties after the end of a period of limitation under (a) the Limitation Act 1980; (b) the Foreign Limitation Periods Act 1984; (c) section 190 of the Merchant Shipping Act 1995; (d) any other statutory provision.” (a) the Limitation Act 1980; (b) the Foreign Limitation Periods Act 1984; (c) section 190 of the Merchant Shipping Act 1995; (d) any other statutory provision.”

The judgment

[21]The Deputy District Judge held that, if CPR 19.5 was engaged, the period prescribed by section 29(3) of the LTA was a “relevant limitation period” within the meaning of CPR 19.5(2). But he decided that CPR 19.5 was not engaged because the LTA is not an enactment within the meaning of subparagraph (c) since the LTA “contains no provision allowing or disallowing the substitution or adding of parties” (para 8). It seems that this interpretation of CPR 19.5(1)(c) and the LTA reflected what was common ground between the parties before the judge (as it was before us). On behalf of the claimants, however, it was submitted that the judge had the power to grant the claimants’ application under CPR 19.2 for the very reason that the case did not fall within rule 19.5. Reliance was placed on the words in rule 19.2(1):
“this rule applies….except where the case falls within rule 19.5….”
. The judge decided that he had no jurisdiction to grant the application under rule 19.2, although he did not explain why he was of that view. He did, however, say that if he had jurisdiction to allow the application under rule 19.2, he would have exercised it in favour of the claimants. He said at para 9:
“…I would order a substitution of parties in all the circumstances, particularly given the fact that the same solicitors acted for the new landlords and the old landlords, and were involved in the whole process.”
[22]Finally, the judge also held that he had no power to allow the substitution of Mrs Purcell for the defendants under CPR 3.10. He considered that the addition or substitution of a party consequent on a mistake was not a procedural error of the kind envisaged by rule 3.10. But if he had jurisdiction to deal with the matter under rule 3.10, he would have done so, since (para 18):
“The application was made promptly. There is no suggestion that failure was intentional and it was explained that it was simply that the solicitor failed to spot or to remember that the landlord had changed, the earlier notices having been issued under the old landlord. There is a good explanation for that failure in that sense. There is no suggestion that the party in default has not complied with other rules. It is quite clear that the failure to comply was caused not by the party but his legal representative. There is no suggestion that any trial date or likely trial date is going to be prejudiced if relief is given.”

Discussion

[23]The starting point is that the period specified in section 29(3) of the LTA is a limitation period, so that CPR 19.5 is engaged if the LTA is an enactment which satisfies rule 19.5(1)(c). So much is, I understand, common ground.[24]It is clear that this limitation period was a “relevant limitation period” within the meaning of RSC Ord 20 r 5(2), and that the court would have had jurisdiction to allow the amendment sought in the present case if the application had been made under that rule. That is made plain, for example, by the decisions in Evans and Signet, whosefacts are strikingly similar to those in the present case.[25]It would be surprising if the effect of the CPR was to deny to the court jurisdiction to allow the addition or substitution of parties after the expiry of a relevant limitation period in circumstances where the court had previously enjoyed such jurisdiction. And yet that is the effect of the judge’s decision in the present case. There is nothing to indicate that this was the intention of the Civil Procedure Rule Committee (“the CPRC”). The most recent and comprehensive review of the pre-CPR law in this area to which we have been referred is that in the judgment of this court given in Signet by Lord Woolf MR. That review contains no suggestion that the court was of the view that the jurisdiction was exorbitant and should be curtailed. Quite the reverse. They disagreed with the view expressed by Hobhouse J in The Jay Bola [1992] 1 QB 907 that the only relation back that was available was that allowed by the rules made to give effect to section 35 of the 1980 Act, and that Evans could not stand with Liff v Peasley. They observed that RSC Ord 20 r 5(2) to (5) were introduced “to alleviate the injustice” of the established rule of practice to which I have referred “whether the relation back theory or the no usefulness theory is correct” (p 12 of the transcript).[26]In fact, in my judgment the original version of CPR 19.5(1) did not curtail the pre-CPR jurisdiction. As we have seen, this provided that the rule applied to a change of parties after the end of a period of limitation “under” the three statutes specified in subparagraphs (a), (b) and (c) and “(d) any other statutory provision”. On the face of it, therefore, the rule purported to give the court jurisdiction to allow a change of parties after the expiry of any statutory limitation period. There could be no doubt that under that rule, the court would have had jurisdiction to allow the amendment sought in the present case. Why did the CPRC amend CPR 19.5(1)? In particular, why was paragraph (1)(d) replaced by the new paragraph (1)(c)? In my view, the answer is that paragraph (1)(d) was expressed in such wide terms that it could be interpreted as giving the court jurisdiction to allow a change of parties after the end of a limitation period even if the relevant statute did not permit this to be done. The object of the new paragraph (1)(c) was to ensure that the court cannot allow a change of parties after the end of a limitation period if the statute which prescribes the limitation period does not allow that to be done. When interpreting CPR 19.5(1)(c), therefore, it is important to bear in mind that(i) an application such as that with which we are concerned could have succeeded under the original version of CPR 19.5(1), and(ii) the object of the amendment introduced by the new subparagraph (c) was as I have described, and was not to disable the court from allowing such an application. With that introduction, I turn to the current version of CPR 19.5(1) and its application in the present case.[27]If the judge was right, the current version of CPR 19.5 effected a very significant reduction in the jurisdiction to allow the addition or substitution of parties after the expiry of a relevant limitation period, whether under RSC Ord 20 r 5 or the original version of CPR 19.5.[28]Section 29(3) stands by no means alone as a limitation period which is not prescribed by the 1980 Act, and which is therefore outside the scope of section 35 of that Act. There are many statutory limitation periods which are not mentioned in the 1980 Act. They apply to a diverse range of claims. More than 50 were listed in Table 2 to the Law Commission Consultation Paper (No 151) (1998) ranging from section 210 of the Common Law Procedure Act 1852 to section 111 of the Employment Rights Act 1996. Some of these statutes allow for an extension of time of the limitation period in question, but most do not. If the judge is right, the court would have had jurisdiction to allow the addition or substitution of a party after the expiry of any of these limitation periods if the conditions of RSC Ord 20 r 5 or the original version of CPR 19.5 were satisfied, but since the introduction of the current form of CPR 19.5, it no longer has such power. To put the same point another way, on this argument the effect of CPR 19.5 is to reverse decisions such as Evans and Signet, unless the power to add or substitute parties after the end of a relevant limitation period is given by CPR 19.2. For the reasons that I give at para 30 below, I consider that CPR 19.2 gives no such power.[29]Since there are no grounds for supposing that the CPRC intended to change the rules so as to deny to the court the jurisdiction it previously enjoyed, I approach the construction of CPR 19.5(1)(c) on the basis that, if at all possible, it should be construed as not having that effect.[30]The general scheme of CPR 19 is clear enough. CPR 19.2 to 19.5 are in section 1 of CPR 19 which is headed “Addition and Substitution of Parties”. The sub-heading of CPR 19.2 is “Change of parties-general”; and the sub-heading of CPR 19.5 is “Special provisions about adding or substituting parties after the end of a relevant limitation period”. On the face of it, therefore, one would expect that all the provisions relating to the addition or substitution of parties after the end of a relevant limitation period are to be found in CPR 19.5 and nowhere else. This expectation is confirmed by the text of CPR 19.2(1) which provides that CPR 19.2 (ie the general rule) applies “except where the case falls within rule 19.5 (special provisions about changing parties after the end of a relevant limitation period)”. It is inherently improbable that the CPRC intended that CPR 19.5 should apply to a change of parties after the end of a limitation period under statutes referred to in CPR 19.5(1), and that CPR 19.2 should apply to a change of parties after the end of a limitation period under other statutes which are not referred to in CPR 19.5(1). The natural interpretation of CPR 19.2 and 19.5, when they are read together, is that CPR 19.5 was intended to be the code which governs the position in relation to a change of parties after the end of any relevant limitation period; and that CPR 19.2 was intended to be the code which governs the position in relation to a change of parties in any other case. There are important differences between the two codes. This is hardly surprising, since the effect of an amendment under CPR 19.5 is to deprive a defendant of a limitation defence. Thus, the conditions that must be satisfied before the court can exercise its discretion to allow an amendment under CPR 19.5 are more stringent and more difficult to satisfy than the corresponding conditions under CPR 19.2. And yet if the judge is right, not only are there two (mutually exclusive) rules which deal with the same subject-matter (the change of parties after the end of a relevant limitation period), but they prescribe different conditions for the exercise of the discretion to allow a change of parties. This is arbitrary and cannot have been intended.[31]A further difficulty with the judge’s interpretation is that it appears to allow no content to CPR 19.5(1)(c). When asked to identify enactments which come within the scope of the subparagraph, counsel were only able to point to section 5 of the Carriage by Air Act 1961. It is not necessary to examine this provision. Suffice it to say that it does not seem to me that it expressly allows a change of parties after the end of the two year limitation period prescribed by section 5(1) of that Act. If the judge is right, there is (at most) one statutory provision which falls within subparagraph (c).[32]I turn now to consider the language of CPR 19.5(1). Subparagraph (a) refers to the 1980 Act, which contains provisions which allow for a change of parties after the end of any of the limitation periods prescribed by that Act: see section 35 (para 16 above). Subparagraph (b) refers to section 1(3) of the Foreign Limitation Periods Act 1984 which provides that section 35 of the 1980 Act shall apply in relation to foreign law time limits applicable by virtue of section 1(1)(a) of the 1984 Act.[33]The central question that arises in relation to CPR 19.5(1)(c) is whether the only enactments that fall within the subparagraph are ones which expressly allow a change of parties after the end of a relevant limitation period (as does section 35(3) of the 1980 Act). At first sight, it may be said with some force that, if CPR 19.5(1) is read in isolation, this is the obvious and indeed only tenable interpretation of the words in subparagraph (c). I shall refer to this as “the narrow interpretation”.But the words must be read in their context and against the background of the previous rules to which I have referred.[34]In my view, there is a possible wider interpretation of subparagraph (c) which is consistent with the pre-CPR regime and the original version of CPR 19.5(1), and which avoids the difficulty of having two different sets of rules for applications for permission to change parties after the end of a relevant limitation period. Incidentally, this wider interpretation also provides an explanation for the apparently curious feature of the subparagraph that it is expressed both in the active and passive sense:
“any other enactment which allows such a change, or under which such a change is allowed”
. At first sight, there seems to be no difference in meaning between these two formulations.[35]In my judgment, it is possible to interpret CPR 19.5(1)(c) as referring to any enactment which allows or which does not prohibit a change of parties after the end of a relevant limitation period. Plainly, something is allowed if it is expressly allowed. But there are many contexts in which it is a legitimate use of language to say that something is allowed merely because it is not prohibited. Thus, in a restaurant which does not prohibit smoking, it could properly be said (at least until recently) that smoking is allowed, even if there is no sign which says “smoking is allowed”. People who visit restaurants expect to be allowed to smoke there unless smoking is prohibited, because smoking is an activity that is customarily carried on by those who visit restaurants. Smoking may be said to be an incident of restaurant life which is allowed unless it is prohibited. The same point can be made in relation to walking on lawns in public parks or gardens. On the other hand, it would be considered to be a strange use of the word “allow” to say that visitors to a restaurant are allowed to sing in the restaurant unless they are prohibited from doing so. Singing in restaurants is allowed only if it is expressly permitted. I suggest that the reason for this is that visitors to a restaurant do not need to be banned from singing in order to understand that they are not allowed to sing there. It cannot sensibly be said that singing is an incident of restaurant life which is allowed unless it is prohibited. These examples demonstrate that the context will determine whether it is a legitimate use of language to say that something is “allowed” simply because it is not prohibited.[36]The context in the present case is that the LTA contemplates applications for new tenancies under section 29(3). It is true that the LTA does not regulate the manner in which such applications should or may be made, save to say that claims must be brought within the limitation period prescribed by section 29(3). But it is not unusual for a claimant who is seeking a new tenancy to apply for permission to change the parties after the end of the prescribed limitation period. Such applications are an incident of claims for new tenancies and fall within the general ambit of section 29(3) of the LTA, although that subsection makes no specific provision in relation to them. I would hold, therefore, that such applications are allowed by the LTA because they are not prohibited by it.[37]This wider interpretation of CPR 19.5(1)(c) also provides an explanation for the fact that there are two limbs to the subparagraph. It seems to me that the first limb “which allows such a change” is referring to an enactment which expressly allows such a change, whereas the second limb “or under which such a change is allowed” is referring to a statute which does not prohibit such a change. I put this suggestion forward with some diffidence. But it is desirable to find an interpretation which accounts for the two formulations. On the narrow interpretation, there is no explanation.[38]For the reasons that I have sought to explain, therefore, I conclude that CPR 19.5(1)(c) bears the wider meaning to which I have referred. As I have explained at para 30 above, I do not consider that this application fell to be dealt with under CPR 19.2. Since for the reasons that I shall now give I would allow the appeal under CPR 19.5(1), it is not necessary for me to deal with the submissions based on CPR 3.10.

CPR 19.5 applied to this case

[39]The first question is whether the conditions in CPR 19.5(2) were both satisfied in the present case. There is no issue about subparagraph (a): the relevant limitation period was “current” (ie had not expired) when the proceedings were started. But there is an issue about subparagraph (b). Ms McQuail submits that the substitution of Mrs Purcell as defendant is not “necessary” within the meaning of CPR 19.5(2)(b) as explained by paragraph (3) because none of the conditions stated in paragraph (3) is satisfied in this case.[40]The condition stated in paragraph (3)(a) is that the new party is to be substituted for a party who was named in the claim form “in mistake for the new party”. She submits that there was no such mistake in the present case. The claimants identified the individuals whom they believed to be the landlord within the meaning of section 44 of the LTA (“the competent landlord”) and named them as the defendants. They did not seek to sue Mrs Purcell, and mistakenly described her by the names of the defendants.[41]I reject this narrow view of the meaning of paragraph (3)(a). Its language is not significantly different from that of RSC Ord 20 r 5(3). I bear in mind that the CPR is a “new procedural code” (CPR 1.1(1)), and that decisions under the former rules will only occasionally provide assistance to the interpretation of the CPR. The meaning of section 35(6)(a) of the 1980 Act and of CPR 19.5(3)(a) was considered by this court in Horne-Roberts v SmithKline Beecham plc [2001] EWCA Civ 2006, [2002] 1 WLR 1662. As appears from paras 40-45 of the judgment of Keene LJ, the court adopted the test suggested by Lloyd LJ in The Sardinia Sulcis [1991] 1 LLR 201, 207 that the power to change a party after the expiry of a limitation period can be exercised where a party has been wrongly identified, but “it was possible to identify the intending claimant or intended defendant by reference to a description which was more or less specific to the particular case”. Thus, for example, if it is clear that the claimant intended to sue his employer or the competent landlord, but by mistake named the wrong person, an application to substitute the person who in fact answers the description of employer or competent landlord would come within CPR 19.5(3)(a).[42]In other words, the court rejected the argument that CPR 19.5(3)(a) is directed only at cases of misnomer in the strict sense, and adopted a more liberal approach such as that applied in Evans and Signet. That is the approach that should be adopted in the present case. The claimants always intended to sue the persons who answered the description of competent landlord, and named the defendants because they mistakenly believed that they answered that description. At all material times, Birkett Long were acting as solicitors for the defendants and Mrs Purcell. They must have understood that the claimants were intending to apply for a new tenancy from the competent landlord, and that they had named the defendants by mistake. In these circumstances, I would hold that paragraph (3)(a) was satisfied on the facts of this case.[43]It is not, therefore, necessary to consider whether the conditions in CPR 19.5(3)(b) are satisfied.[44]I turn finally to the question whether, as a matter of discretion, the power to substitute Mrs Purcell as defendant should be exercised in this case. As has been seen, the judge said that he would have exercised his discretion in favour of the claimants under CPR 19.2 and 3.10 if he had the jurisdiction to do so. It must follow that he would also have exercised his discretion in the same way under CPR 19.5 if he considered that he had jurisdiction to do so under that rule. Ms McQuail does not submit that such an exercise of discretion would have been plainly wrong. Indeed, I do not understand her to challenge this part of the judgment at all. In my view, she is right not to do so. It would be manifestly unjust to the claimants not to allow the amendment in the circumstances of this case. The claimants’ error was obvious, and must have been understood by Birkett Long. Mrs Purcell was not misled in any way and the amendment would cause her no prejudice. If the amendment is not allowed in a case such as this, it is difficult to see in what circumstances it would ever be right to exercise the power given by CPR 19.5.[45]For all these reasons, I would allow this appeal.[46]I agree.

The Vice-Chancellor:

[47]I also agree.

Order

Appeal allowed. An Agreed minute or order was lodged. (Order does not form part of the approved judgment)

Cited in 20 later judgments

and 11 more of the most senior