"(2) The court may.. substitute a party only if- (a) the relevant limitation period was current when the proceedings were started; and (b) the..substitution is necessary. (3) The. .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.."
"The Second Claimant predominantly trades and operates in the gambling industry, developing and running casino based gambling, entertainment and leisure resorts and their associated hotel, restaurant and retail facilities."
"Having carefully considered the position, our clients have decided that they cannot allow this gross smear on Mr Adelson and, by implication, on the company of which he is chairman, to go unchallenged. Accordingly you should understand that their complaint now extends to the other seriously libellous attacks made in this article. They complain of the entirety of the article, including headlines, photographs and captions, as the words and context conveying these libels."
"The First Claimant is the Chairman and Chief Executive Officer of the Second Claimant, which is a public company incorporated in Nevada, USA. The Second Claimant predominantly trades and operates in the gambling industry, developing and running-casino-based gambling, entertainment and leisure resorts and their associated hotel, restaurant and retail facilities."
"It is admitted and averred that the Second Claimant owns, controls and directs the operation of a number of companies which conduct business of the kind described in that sentence. However, according to its own Annual Report filed with the United States Securities and Exchange Commission for the fiscal year ended December 21, 2004, the Second Claimant is, 'a parent company with limited business operations. Our main asset is the stock of our subsidiaries.'"
"In the premises, the claimants will aver that the words complained of were and would be understood to refer to the first, second, third and fourth claimants and that the said words were likely to damage (i) the reputation and goodwill of the second claimant as a publicly traded corporation in the eyes of the financial and investment community, (ii) the trading reputation and goodwill of the third claimant and (iii) the reputation and capacity to trade and/or establish trading subsidiaries and/or successfully bid for casino licences of the fourth claimant."
"That by reason of it being owned and controlled by the First, Second and Third Claimants it was unfit to own a casino business or hold a casino licence in this country."
"New claims in pending actions: rules of court (1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced-.. (b). .on the same date as the original action. (2) In this section a new claim means any claim by way of setoff or counterclaim, and any claim involving either (a) the addition or substitution of a new cause of action; or (b) the addition or substitution of a new party; (3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim within subsection 1(b) above, 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.. (4) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose. (5) The conditions referred to in subsection (4) above are the following- (a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; and (b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action. (6) The addition or substitution of a new party shall not be regarded for the purposes of subsection 5(b) above as necessary for the determination of the original action unless either- , (a) the new party is substituted for a party whose name was given in any claim in the original action in mistake for the new party's name; or (b) any claim made in the original action cannot be maintained by or against an existing party unless the new party is joined or substituted as plaintiff or defendant in that action."
"17.4(1) This rule applies where - (a) a party applies to amend his statement of case in one of the ways mentioned- in this rule; and (b) a period of limitation has expired under - (i) theLimitation Act 1980 ; (ii) theForeign Limitation Periods Act 1984 ; or (iii) any other enactment which allows such an amendment, or under which such an amendment is allowed. (2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings. (3) The court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question."
"19.5(1) This rule applies to a change of parties after the end of a period of limitation under - (a) theLimitation Act 1980 ; (b) theForeign 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 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."
"(1) Subject to Order 15, rules 6, 7 and 8 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 such 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. (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 person 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 (whether as plaintiff or as defendant by counterclaim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of the issue of the writ or the making of the counterclaim, as the case may be, he might have sued. (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."
"The 1980 Act was enacted in order to implement the recommendations of the Twenty-First Report of the Law Reform Committee (Final Report on Limitation of Actions) (Cmnd 6923) (1977). The dichotomy between amendments to existing proceedings which involved the addition or substitution of new parties and those which did not is to be found in the committee's recommendations. The committee recommended that no change was required in the rules which enabled a new cause of action to be added out of time (a reference to Ord 20, r 5); that a minor amendment be made to allow a change in capacity to be made out of time (which required an amendment to Ord 20, r 5(4)); and that the rulemaking powers of the Supreme Court and County Court committees should be enlarged so as to confer power to enable parties to be added out of time in five specific cases which the committee had identified (which led to the addition of paras (4) to (6) to Ord 15, r 6). The purpose of these recommendations was to allow a limited number of amendments to existing proceedings to be made after the expiry of the limitation period which could not have been made before. They were not intended to deprive the court of any existing power to allow amendments after the expiry of the limitation period, nor were they intended to cover amendments which, though made after the expiry of the limitation period, were not statute-barred. It would have been completely outside the committee's terms of reference to make any recommendation of the latter kind."
"But it is clear that Ord. 20, r. 5 must now be read with the [1980] Act and is implicitly (but inelegantly) giving effect to the first alternative, (a), in section 35(6). The result is that the rule relevant to the present case, Ord 20. r. 5, must be construed as being made under the general power to regulate procedure and under the more specific power given for the purposes of that Act by section 35 of the Act of 1980"
"In my judgment, there was a genuine mistake on the part of the junior clerk who issued the writ. Was the mistake one which was misleading or caused any reasonable doubt as to the person intended to be sued? The test is what would a reasonable person receiving this writ, accompanied as it was by the statement of claim, understand from it in regard to the person intended to be sued? The name was not the correct name of the person intended to be sued and there was a misnomer; that misnomer in fact accurately named an existing but different person. In my judgment, a reasonable person would say of this writ: 'Although on the face of it there is a clear statement that the plaintiff is suing an existing person there is no doubt at all that he intends to sue a different person who has a slightly different name.' I do not consider that the mistake made was misleading, nor do I consider that it created any doubt as to the person whom the plaintiff intended to sue."
"It was a very proper case for amendment. It was a genuine mistake by the plaintiffs solicitors; and the secretary of the two companies must have realised it as soon as he read the writ and the indorsement"
"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 making any particular case depends upon the intentions of the person making the mistake and they have to be determined on the evidence in light of al 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 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. However, the matter does not stop there, because it is not every mistake of this character which can be corrected under the rules. The applicant for leave to amend has to satisfy the court that the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the person intended to be sued. On the facts of the present case, I do not see how Charringtons or Bass or anyone else familiar with the surrounding circumstances, could have been misled or could have had any real doubt as to the identity of the person intended to be sued. The notice to quit had been given by Charringtons as managing agent for Bass and the application in reply was intended for Bass albeit addressed to Charringtons."
"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."
"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"
"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."
"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"
"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."
"There were provisions in the former Rules of the Supreme Court providing for cases where an application was made to correct a mistake in the name of a party or to substitute a new party for one who had been joined by mistake. The Civil Procedure Rules are a new procedural code and there is, in my view, no basis for supposing that these new rules were intended to replicate, or for that matter not replicate, the former provisions. It is not generally appropriate to refer to authorities decided under the former rules to determine what the new rules mean or how they should be applied."
"Nothing more is said about the mistake, but it is clear from the rule as a whole that the relevant mistake is one necessitating a change of parties. By comparison and contrast with r. 17.4(3) that mistake is not a mere mistake as to name such as causes no reasonable doubt as to the identity of the party in question but is something more fundamental which can only be cured if a new party is substituted."
"Instinctively one is reluctant to accept an interpretation of section 35(6) of the 1980 Act which might allow the substitution of a new defendant unconnected with the original defendant and unaware of the claim until after the expiry of the limitation period. Such a reaction initially led me to doubt the conclusion reached by Bell J. But on further consideration it seems to me that any potential injustice can be successfully avoided by the exercise of the court's discretion under section 35. It is perhaps not without significance that there is no appeal in the present case against the exercise by Bell J of his discretion against SK."
"The best source for what the claimant actually intended is to be found in the points of claim. At most the error made there was in identifying the proper way of interpleading a person whom they had always intended to sue."
"The new party is to be substituted for a party who was named in the claim form in mistake for a new party"
"It is not in issue that there has been a mistake. It was incorrect to plead of the Second Claimant that it trades and operates in the gambling industry. But Mr Price QC also submits that the law permits a non-trading company to sue for libel, and the Second Claimant wishes to pursue a claim for libel on that footing in this action. If the mistake as to the Second Claimant being a trading company had not been made, then it seems to me at least one of them, would have been named in the claim form in addition to the Second Claimant. In fact I think it probable that they would have done what they now apply to do, and joined all three from the start. If that is right, or may be right, then it is not shown that the Second Claimant was named in the claim form in mistake for either of the Third Claimant or the Fourth Claimant."
"It was not thought that it was a useful use of costs or proportionate to chase up with the old firm of solicitors why the mistake was made"