S P Manweb Plc v Bechtel Water Technology Ltd & Ors [2008] EWHC 2270 (TCC)

TCC 23/08 (7CH50056)[2008] EWHC 2270 (TCC)QUEEN'S BENCH DIVISIONVenue MANCHESTER DISTRICT REGISTRYTECHNOLOGY & CONSTRUCTION COURTDate 25 th September 2008
Before
HIS HONOUR JUDGE RAYNOR QCsitting as a Judge of the High Court
Between
S P MANWEB plcClaimant(1) BECHTEL WATER TECHNOLOGY LIMITEDDefendants(2) AMEC plcDefendant(3) UNITED UTILITIES plcDefendant(4) NORTH WEST WATER LIMITEDDefendant(5) SITE CRAFT INTERNATIONAL LIMITEDDefendantUNITED UTILITIES plcClaimant(1) ENPURE LIMITEDDefendants(2) AMEC plcDefendant
Mr Neil Berragan (instructed by Walker Smith Way) for S P Manweb plcMr Andrew Singer (instructed by DWF LLP) for Amec plcMr G Maynard-Connor (instructed by Halliwells LLP) for United Utilities plcMr Simon Lofthouse QC (instructed by Dundas & Wilson LLP) for Enpure Limited
JUDGMENTJUDGE RAYNOR QC
[1]There are before me applications for amendment of Claims Forms and Statements of Case made pursuant to CPR 17.4(3) or alternatively 19.5(2) by each of the Claimants in two consolidated actions arising out of a flooding incident which occurred at the Bromborough Waste Water Treatment Works (“the Works”) on 3 July 2001 causing damage to an electricity sub-station sited there and owned by SP Manweb Plc (“Manweb”), the Claimant in action 7CH50056.[2]As presently constituted, the Second and Third Defendants in the Manweb action are Amec Plc (“Amec”) and United Utilities Plc (“UU”). By application notice dated 30 May 2008 Manweb seeks an order under the stated Rules amending the names of those Defendants to Amec Civil Engineering Limited (“ACEL”) and United Utilities Water Plc (“UUW”) or alternatively substituting those companies for those presently named as Second and Third Defendants.[3]As presently constituted, the Claimant in action TCC05407 (the United Utilities action) is UU. The First Defendant is Enpure Limited (“Enpure”) and the Second Defendant is Amec. By its application notice dated 5 June 2008 UU seeks an order pursuant to CPR 17.4 and/or 19.5(2) and 3(a)-(b) amending the name of the Claimant to UUW and that of the Second Defendant to ACEL or alternatively substituting those companies for those presently named as Claimant and Second Defendant.

The background to the actions

[4]Whereas it is presently alleged in the Particulars of Claim in both actions that the Works were at all material times owned and occupied by UU, that is incorrect. The true position is that the company numbered 2366678, which is now named UUW but which was formerly named North West Water Limited, has at all material times owned and occupied the Works. This company is a subsidiary of UU, which was created by the merger of North West Water Group Plc and Manweb Plc in 1995.[5]Substantial civil engineering works were carried out at the Works from about the end of 1998 by a joint venture consortium formed in or about mid-1998 by ACEL, a subsidiary of Amec, and Enpure, which was then named Purac Limited. These works were undertaken pursuant to an agreement (“the Works Agreement”) made between ACEL, Purac and UUW (then named North West Water Limited) and included the provision of an emergency over-flow and isolation structure including two penstocks to be installed in the emergency outflow channels. The primary allegation made by Manweb is that the flooding occurred because of the failure of one of the penstocks properly to operate.[6]The flooding, as well as causing damage to Manweb’s sub-station, also caused injury to Anthony Smith, a security guard employed at the Works. In June 2004 he commenced proceedings against 5 Defendants, including UU, Amec and Purac, which were compromised in October 2005 upon each of 4 Defendants (including those I have named) agreeing to contribute 25% of the agreed damages plus costs. Neither UU nor Amec alleged that it had been incorrectly joined as Defendant in the action.

The Manweb action

[7]The action was commenced by Claim Form issued on 27 June 2007, but not served, naming 5 Defendants including Amec and UU. The brief details of claim were stated to be “Damages for negligence resulting in loss and damage to property”.[8]The circumstances in which Amec and UU came to be named as Defendants are set out in the Witness Statement of Manweb’s solicitor, Mr Richard Thomas, a partner in the firm of Walker Smith Way (“WSW”) of Chester. No evidence in answer to the application has been filed by Amec or UU. Whilst UU does not challenge Mr Thomas’s evidence, it does not consent to the application, but neither does it oppose it. As will appear, however, Amec challenges Mr Thomas’s assertion that it was named in the Claim Form as a result of a mistake on his part.[9]It is clear from the statement of Mr Thomas and the Particulars of Claim in the Manweb action that UU was joined as Defendant to the action because of Mr Thomas’s mistaken belief (held until the beginning of 2008) that UU was the owner and operator of the Works and as such responsible for the operation of the penstock, the failure of which to operate automatically was said to be responsible for the flood. The causes of action alleged were(1) Negligence of UU as owner and occupier of the Works (paragraphs 2 and 38)(2) Strict liability for the escape of waste water under Section 209 of the Water Industry Act 2009.[10]UU are not able to complain of Mr Thomas’s mistake since both its Solicitors and its Claims Manager state that they were acting under the same misapprehension as to the position of UU and indeed they maintained Mr Thomas in his mistaken belief.[11]It is clear that Mr Thomas’s intention was to sue the actual owner and occupier of the Works and that had he realised the true position regarding UU and UUW, the latter company, and not UU, would have been joined as Third Defendant.[12]The position as regards the reason for the joinder of Amec is not so clear cut, not least because the Claim Form was silent as to its role and the Particulars of Claim served against UU made no mention at all of Amec (save in the title).[13]The only evidence explaining the joinder of Amec is that contained in paragraphs 11 to 14 inclusive of Mr Thomas’s statement, which it is necessary to set out in full:11. In relation to the Second Defendant herein, Amec Plc, I again confirm that the decision to include Amec Plc as a Defendant in the proceedings was mine and was again the result of a genuine mistake on my part.12. Within the correspondence provided to me when I was instructed, is a letter dated 7 September 2001 from Mr A D Parkinson of United Utilities to Mr S Lloyd of S P Manweb Plc. The letter referred to “newly extended works” and referred to the fact that arrangements that had been made subsequent to the flood would mean that “….. the works can revert to the situation that existed before the extensions”. It was there apparent to me that work had been undertaken at the waste water treatment works and there was potential for United Utilities Plc seeking to pass responsibility for the losses sustained by my client. 13. Within the letter of 23 March 2005 from Halliwells LLP [UU’s Solicitors] to Berrymans Lace Mawer, identifies a potential conflict for Berrymans Lace Mawer on the basis that Berrymans Lace Mawer were acting for “…Amec Plc, as Third Defendant in respect of a claim by Anthony Smith who claims for personal injury as a result of the flooding incident”. It was because of this conflict of interest that Berrymans Lace Mawer had to cease acting and my firm was instructed. In confirming this to my client, Berrymans Lace Mawer indicated that the said personal injury action of Anthony Smith had been settled “… with each Defendant contributing 25% …”. 14. Consequently, when the time came for proceedings to be issued by my client in this matter, I concluded that there was potential for the operator of the site to try and apportion some or all of the responsibility for the flooding incident to the contractor who undertook the works to the site. This was reinforced by the knowledge that the personal injury claim brought by an employee as a result of the flooding incident had been settled by 4 Defendants on the basis of apportioning liability as to 25% each. I was aware Amec Plc was one of those Defendants and was aware they were a construction company and therefore concluded that it was Amec Plc whom I should join in the proceedings as a Defendant on the basis that they were the company that had undertaken works at the waste water treatment works.[14]In paragraph 17 of his statement, Mr Thomas continues as follows I therefore confirm that proceedings were issued by my client against Amec Plc as a result of the genuine mistake on my behalf in believing that Amec Plc were the contractor that had undertaken works at the Bromborough Waste Water Treatment Works on behalf of the operator of the site.[15]Mr Singer, Counsel for Amec, submits that I should reject the assertions of mistake in paragraphs 11 and 17 of the statement and find that Amec was sued intentionally because it, and no other Amec company, had admitted liability to Mr Smith. I reject that submission. I accept Mr Thomas’s evidence that his intention was to sue the contractor who had undertaken works at the site which potentially caused or contributed to the flooding, and that he believed (not least because of the Amec contribution to the Smith claim) that that contractor was Amec. Had he realised at the time the Claim Form was issued that ACEL, and not Amec, was that contractor, I am satisfied that ACEL, and not Amec, would have been named as Second Defendant in the Manweb action.

The UU action

[16]UU’s applications are opposed by both Amec and Enpure, although only the latter has served evidence in opposition. Enpure invite me to reject the evidence of Ms Clements, UU’s Claims Manager, and Miss Cruise, its Solicitor, that(a) At all material times until the mistake was exposed by Enpure, they mistakenly believed that UU was the correct Defendant to Manweb’s claim and the correct Claimant to the UU action and that like Amec was the correct Second Defendant in the UU action.(b) It was always intended that the true Claimant in the UU action would be the actual owner and occupier of the Works and the actual contracting party to the Works Agreement and that but for their mistake UU would have been joined; and(c) It was always intended that the Defendants to the UU action would be the contractors who had entered into the Works Agreement and that but for the mistake ACEL, and not Amec, would have been joined.[17]Mr Simon Lofthouse QC for Enpure points to numerous anomalies in the evidence produced on behalf of UU, making it necessary for me to deal with the chronology in so far as it relates to UU and its Solicitors in some detail.[18]The UU action was a reaction to threatened Manweb proceedings. Although the claim included a claim for damages for breach of contract and/or negligence, what was essentially sought was an indemnity against the Manweb claim or alternatively contribution thereto. It is clear that UU would not have pursued its action in the absence of a claim by Manweb.[19]Prior to the instruction of Halliwells, there was considerable correspondence regarding the Manweb claim between loss adjusters instructed by the parties’ respective insurers. Notwithstanding that an early letter dated 7 September 2001 regarding the replacement of the sub-station was sent by UUW to Manweb (A85), from January 2002 both loss adjusters consistently referred to GAB Robins UK Ltd principal’s Insured as UU.[20]At about the end of 2004 UU instructed Halliwells in connection with the claim. (The firm had previously been instructed in connection with Mr Smith’s action).[21]Ms Clements’ evidence (as set out in paragraph 11 of her first witness statement) is that following the UU corporate restructure she mistakenly believed that UU was formerly North West Water Limited and that it was thus the owner and occupier of the Works and party to the Works Agreement. Miss Cruise confirms that those instructions were given to her (paragraph 20 of her second statement) and furthermore says that she wrongly believed (having regard to the fact the Amec was a party to the Smith action) that ACEL had changed its name to Amec.[22]Notwithstanding the above evidence, there is confusion in documents issued by Halliwells thereafter as to the name of their client. As regards the pre-action documents:(a) In May 2006 WSW issued an application for pre-action disclosure against UU. The draft witness statement in response was prepared by Mr Morris, a partner in Halliwells and Miss Cruise’s principal, naming the Respondent and his client as UU. Miss Clements altered the draft so that the Respondent named in the heading and as Halliwells’ client was UUW. She cannot now explain why she did this given her belief that UU was the owner and occupier of the Works. However there evidently were further discussions between Ms Clements and Mr Morris, as the latter suggests, leading to the conclusion that the Respondent was correctly named as UU, hence Mr Morris altered paragraph 2 of his statement accordingly but unfortunately he neglected to amend the heading. Thus paragraph 2 of his statement stated that he was “instructed to act on behalf of United Utilities Plc, the Respondent in the above matter” and in paragraph 4 he stated that the Manweb sub-station was “on the Respondent’s site”. I am satisfied that the reference to the Respondent in that paragraph was a reference to UU and not to UUW.(b) Notwithstanding the above correction, in two witness statements made by Miss Cruise in connection with the Manweb application (on 26 September 2006) the name of the Respondent was again wrongly stated in the title as UUW and Miss Cruise also stated that she was instructed to act on behalf of UUW “the Respondent in the above matter”. However Miss Cruise’s initial draft of the first witness statement, whilst failing to correct the mis-naming of UUW as Respondent in the title of the action, confirmed that she was instructed by UU. That draft was amended by Mr Morris, so that paragraph 2 read “I am instructed to act on behalf of United Utilities Water Plc, the Respondent in the above matter”. I accept Mr Morris’s evidence that when he made this amendment he was simply adopting the name of the Respondent as set out in the title, rather than directing his mind to who had actually instructed Halliwells.(c) On 22 May 2007 Halliwellls sent protocol letters both to Amec and Enpure. These stated that they acted “on behalf of United Utilities Water Plc (formerly North West Water Limited) in respect of a claim which has been intimated against it by Scottish Power Manweb Plc.” Given the passage of time, Miss Cruise is not able to say why it was stated that Halliwells acted on behalf of UUW, and can only assume that she took that name from the title of the disclosure proceedings. However what is clear is that the Manweb claim had not been intimated against UUW (as stated in the protocol letters) but against UU. It will also be noted that, consistent with her evidence before me, the letter evidences Miss Cruise’s mistaken belief that Amec had formerly been known as Amec Civil Engineering Limited.(d) With the protocol letters, Halliwells sent draft limitation stand still agreements, again naming their client as UUW and stating the correct company number of that company.[23]Neither Enpure nor Amec entered into the limitation stand still agreement. Accordingly, because of the proximity of the 6th anniversary of the flood Halliwells, on 22 June 2007, issued the Claim Form in the UU action. This was issued prior to the commencement of the Manweb action, and thus without sight of the Claim Form in that action, and the error contained in the protocol letters regarding the company against whom the Manweb claim had been intimated was evidently identified because the Claimant was named as UU (and the Defendants as Enpure and Amec). No description of the parties was contained in the Claim Form.[24]On 16 July 2007 Halliwells responded to WSW’s enquiry dated 7 June 2007 (when they were asked to confirm the corporate entity with operating responsibility for the Works at the material time) stating that “the construction of the re-development was undertaken [under the Works Agreement] by Amec Plc and Purac Plc … as a joint venture known as Amec-Purac … At the time that the flood occurred, the majority … of the site was under the operational responsibility of our client … however, a “plant in use” certificate had not been issued … in respect of the emergency outlet channel … Consequently, whilst this plant was being operated by our client … it had not been formerly handed over … by Amec-Purac”. Whilst Halliwells’ client was not named in that letter, the title of the Manweb action was stated as “Scottish Powers Plc v United Utilities Plc”.[25]The confusion regarding the name of their client continued in documents created by Halliwells after the issue of the Claim Form in the UU action. On 16 October 2007 an application notice was issued seeking an order extending the time for service of the Claim Form until 5 November 2007. The application notice correctly named the Claimant as UU; however the draft consent order wrongly named the Claimant as UUW. On any view this was a simple error.[26]Both Defendants agreed to the extension of time sought and an order was obtained accordingly.[27]On 5 November 2007 the Particulars of Claim and Claim Form in the UU action were served on the Defendants, together with a copy of the Claim Form and Particulars of Claim in the Manweb action. So far as the UU Particulars of Claim are concerned;(a) In paragraph 2 it was stated (correctly) that the Claimant, UU, was created from the merger of “North West Water Group Plc and Norweb Plc in 1995”.(b) In paragraph 3 it was stated (incorrectly) that at all material times UU had been the owner and occupier of the Works.(c) In paragraph 6 it was alleged (wrongly in the case of Amec) that the Defendants (ie Enpure and Amec) were the parties to the joint venture consortium agreement and in paragraph 7 it was alleged (again wrongly in the case of Amec and UU) that thereby it was expressly agreed that the Defendants were to be jointly and separately liable to UU in respect of any work carried out.(d) In paragraph 8 it was alleged (incorrectly) that following UU’s acceptance of the Defendants’ tender the Works Agreement was entered into between UU and the Defendants.(e) In paragraph 23 the alleged breaches of the Works Agreement were particularised.[28]The Particulars of Claim in the Manweb action made clear to Amec and Enpure the basis on which Manweb alleged that UU was responsible for the flood (namely as owner and occupier of the Works).[29]On 29 November 2007 Halliwells served UU’s Defence to the Manweb claim. Consistent with what the UU witnesses say they believed, in paragraph 5 of that Defence it was alleged that at all material times UU had been the owner and occupier of the Works. However, whereas in the Particulars of Claim in the UU action, it had been alleged (also consistently with that evidence) that the agreement with Amec and Purac had been entered into with “UU, then North West Water Limited”, in paragraph 8 of the Defence in the Manweb action it was alleged that the agreement was entered into with “North West Water Limited a subsidiary of UU”. Ms Clements was responsible for inserting these words and in her third witness statement dated 17 June 2008 she provides an explanation as to why she did this, which I must say I do not find coherent given her stated belief in her first witness statement that the Agreement had been entered into with UU, then known as North West Water Limited.[30]As previously stated, evidence has been filed in opposition to the application by Enpure’s Solicitors and by its Commercial Manager. They say that they did not believe or suspect when the proceedings were served that a mistake had been made in the naming of UU as Claimant. Mr Leckie, the Solicitor with day to day conduct of the case on behalf of Enpure, states in paragraph 11 of his statement that at the time it appeared to him that UU was clearly the intended Claimant for the following reasons:
“(a) It is specified as the Claimant in the Claim Form. (b) UU was the party that had been sued by SPM [Manweb], and the sole purpose of the action was to pass on the liability that UU was apprehensive of incurring as a result of the SPM action. (c)The description given in paragraph 2 of the Particulars of Claim is clearly a description of UU rather than UUW. It was UU, not UUW, that was “createdfrom the merger of North West Water Group Plc and Norweb Plc in 1995”
. UU, not UUW, is responsible for managing and operating “the regulated electricity distribution” networks in North West England. (d) It was stated at paragraph 3 of the Particulars of Claim that the Claimant was the “owner and occupier of the Bromborough Wastewater Treatment Works”. I had no reason to doubt that UU was indeed the owner and occupier of the Treatment Works as it claimed to be, and therefore also the party with liability to SPM. Whilst I knew that it was actually UUW that had entered into the Works Agreement, this did not mean that UU was not the owner and occupier of the Treatment Works. (e) It is clear from paragraphs 19-21 of the Particulars of Claim that the loss which the Claimant seeks to recover is a loss that is to be sustained uniquely by UU, as a result of its capacity as Defendant in the SPM Proceedings. For all these reasons but particularly (b), I formed the clear view that UU was intended as Claimant and that there were good reasons for this.”

The Rules

[31]CPR 17.4(3) and 19.5(2) were made pursuant to Section 35 of the Limitation Act 1980. The following are the material provisions of this section. (4) Rules of court may provide for allowing a new claim to which sub-section (3) above applies to be made as there mentioned, but only if the conditions specified in sub-section (5) below are satisfied, and subject to any further restrictions the rules may impose. (5) The conditions referred to in sub-section (4) above are the following:- (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 sub-section (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 made in the original action in mistake for the new party’s name; or(b) any claim already 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.[32]CPR 17.4 (so far as material) is in the following terms: 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) the Limitation Act 1980. (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. (Rule 19.5 specifies the circumstances in which the court may allow a new party to be added or substituted after the end of a relevant limitation period).[33]So far as material CPR 19.5 is in the following terms: 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 (3) The court may add or substitute a part only if – (a) the relevant limitation period was current when the proceedings were started; and(b) The addition of substitution is necessary. (4) 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.[34]The leading authority on these provisions is the decision of the Court of Appeal in Adelson v Associated Newspapers Limited [2007] EWCA Civ 701. Notwithstanding that decision, it is my understanding that paragraph 19.5.6 of Civil Procedure, Volume 1, correctly states the relationship between Rule 19.5(3)(a) and Rule 17.4(3) mistakes as follows (following the decision of Gregson v Channel Four Television Corp [2000] CP Rep 60): “Rule 17.4(3) applies where the intended party was named in the claim form but there was a genuine mistake as to the name of the party and no-one was misled, the mistake is a mere mistake as to name such as causes no reasonable doubt as to the identity of the party in question. By contrast, a mistake to which r.19.5(3)(a) applies is a more fundamental mistake which can only be cured if a new party is substituted: this rule applies where the application is to substitute a new party for a party who was named in the claim form in mistake for the new party.” – para 19.5.6[35]This case, in my judgement, falls within Rule 19.5 rather than Rule 17.4(3). WSW and Halliwells (being the agents responsible for the issue of proceedings) intended Amec and UU to be parties to their actions but that was because (on their evidence) they believed that UU was the owner and occupier of the Works and Amec the contractor who had carried out works on the site causing or contributing to the flooding. The application, if granted, would substitute new parties, namely UUW and ACEL, for UU and Amec.[36]In the Adelson case, Lord Phillips CJ, giving the judgment of the court, stated (in paragraphs 29 and 30):29. Before turning to these questions we would make some general observations, using the current description of Claimant and Defendant to describe the parties to an action. Most of the problems in this area arise out of the difference, sometimes elusive, between an error of identification and an error of nomenclature. An error of identification will occur where a Claimant identifies an individual as the person who has caused him an injury, intends to sue that person, describes him in the pleadings by the correct name, but then discovers that he has identified the wrong person as the person who has injured him. An error of nomendclaure occurs where the Claimant identifies the correct person as having caused him the injury, but describes him in the pleadings by the wrong name.30. A problem arises in distinguishing between the two types of error where the Claimant knows the attributes of the person that he wishes to sue, for example the manufacturer of an object, but has no personal knowledge of the identity of that person. If on enquiry he is incorrectly informed that a named third party has those attributes and he commences an action naming that third party as Defendant but describing in the pleading the attributes of the person intended to be sued, is the case one of misnomer of the person intended to be sued or error of the identification? A similar problem can arise when attempting to identify the parties to an alleged contractual offer and acceptance – see for example Ingram v Little [1961] 1 QB 31.[37]In paragraph 38 he set out the passage from the judgment of Lloyd LJ in the Sardinia Sulcis case [1991] 1 Lloyds Rep 201, which has become known as the test in the Sardinia Sulcis: “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 Midland v Harris Engineering the identity of the person intended to be sued was the plaintiff’s 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”.[38]In paragraph 43 the Court set out the following conclusions about the principles applicable to the former O20 r5(i) The mistake must be as to the name of the party in question and not as to the identity of that party. Such a mistake can be demonstrated where the pleading gives a description of the party that identifies the party, but gives the party the wrong name. In such circumstances a ‘mistake as to name’ is given a generous interpretation.(ii) The mistake will be made by the person who issues the process bearing the wrong name. The person intending to sue will be the person who, or whose agent, has authorised the person issuing the process to start proceedings on his behalf.(iii) The true identity of the person intending to sue and the person intended to be sued must be apparent to the latter although the wrong name has been used.(iv) Most if not all the cases seem to have proceed on the basis that the effect of the amendment was to substitute a new party for the party named.[39]In paragraph 44, when turning to CPR 17.4 and 19.5 it was stated that “you have to read CPR 17.4 and 19.5 together to give full effect to O.20 r5. Nevertheless, Section 35 and CPR 19.5(3), in contrast to CPR 17.4(3) and O.20, r5, do not specify that the mistake must not be such as to cause any reasonable doubt as to the party intending to sue or to be sued”.[40]Finally the conclusions of the court are set out in paragraphs 55-57 as follows: 55. CPR 19.5(3)(a) makes a precondition of substituting a party on the grounds of mistake that:
“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 clear from this language that the person who has made the mistake must be the person responsible, directly or through an agent, for the issue of the claim form. It is also clear that he must be in a position to demonstrate that, had the mistake not been made, the new party would have been named in the pleading. 56. The nature of the mistake required by the rule is not spelt out. This court has held that the mistake must be as to the name of the party rather than as to the identity of the party, applying the generous test of this type of mistake laid down in Sardinia Sulcis test. The ‘working test’ suggested in Weston v Gribben… should not be relied upon. 57. Almost all the cases involve circumstances in which (I) there was a connection between the party whose name was used in the claim form and the party intending to sue, or intended to be sued and (ii) where the party intended to be sued, or his agent, was aware of the proceedings and of the mistake so that no injustice was caused by the amendment., In SmithKine, however, Keene LJ accepted that the Sardinia Sulcis test could be satisfied where the correct Defendant was unaware of the claim until the limitation period had expired. We agree with Keene LJ’s comment that, in such a case, the Court will be likely to exercise its discretion against giving permission to make amendment.[41]In the course of argument, it emerged that 3 issues arose in the present case concerning the proper construction of CPR 19.5(a) Is it a requirement under 19.5(3)(a) that the mistake must not be such as to cause any reasonable doubt as to the party intending to sue or be sued?(b) If such is a requirement, is the test an objective one or a subjective one?(c) Are the provisions of CPR 19.5(3)(a) and (b) cumulative or alternative?[42]As regards to the issue set out in paragraph 41(a), Mr Lofthouse argues that the requirement is to be imported into Rule 19.5(3)(a), pointing out that in Adelson it was stated that the new rules were intended to replicate the provisions of O20 r5. It was also stated (as previously appears) that CPR 27.4 and 19.5 must be read together to give full effect to the former rule. However in paragraph 44 of the judgment of the Court of Appeal, again as previously stated, it was pointed out that CPR 19.5(3) does not specify that the mistake must not be such as to cause any reasonable doubt as to the party intending to sue or be sued. In my judgment the requirement contended for by Mr Lofthouse is not to be imported into the Rule but may be very relevant to the exercise of the discretion as to whether to grant relief under the Rule.[43]As to the issue set out in paragraph 41(b), if the requirement is to be imported it seems to me that the text is an objective one. I note that in the Adelson case the Court of Appeal cite with apparent approval a passage in the judgment of James J in Mitchell v Harris Engineering [1967] 2 QB 703, namely (as regards O20 r5) “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?[44]As to the issue set out in paragraph 41(c), again it seems to me that on the true construction of the CPR paragraph 19.5(3)(a) and (b) are alternative. I note that Section 35(6) of the Limitation Act makes it clear that sub-sections (a) and (b) are alternative; whilst the Rules might have been made more restrictive, there is no reason to think that that was intended and I note that this view is apparently shared by the editors of Civil Procedure (see paragraph 19.5.5). The determination of the applications The Manweb action

The determination of the applications

[45]My decision regarding this application follows from findings that I have earlier made. I find that Mr Thomas made genuine mistakes as to the names of the parties intended to be sued, rather than as to their identities, applying the generous test laid down in Sardinia Sulcis. I find that he intended to sue the owner and occupier of the Works and the contractor whose negligence had potentially caused or contributed to the flooding, but that he got their names wrong. That the intention was to sue the former is in my judgement manifest from the Particulars of Claim; as to Amec, as I have stated I accept Mr Thomas’s evidence as to his intention and his mistake.[46]Alternatively, in my judgment the case comes within the provisions of Rule 19.5(3)(b). The Manweb claim cannot properly be carried on against the original parties unless the new parties are substituted as Defendants.[47]Neither UU nor Amec has sought to argue that I would be wrong to exercise my discretion in favour of Manweb (always assuming that the case comes within the Rules). In my judgment, it is entirely just to grant the relief sought: genuine mistakes were made, UU is in no position to make any criticism; ACEL undertook the works in question and is a subsidiary of the company sued within the limitation period and has knowledge of the action. If I refuse the application very substantial prejudice will be suffered by Manweb because its claims will be statute barred.

The UU action

[48]Notwithstanding the anomalies identified in this judgment, I am satisfied that at the time proceedings were issued both Ms Clements and Miss Cruise, as they say, genuinely but wrongly believed that UU was the owner and occupier of the Works and a party to the Works Agreement, and that Amec was another party thereto, and that their intention was that the claim should be brought by the actual owner and occupier of the Works and actual party to the Works Agreement and be against the other actual parties thereto. That this was clearly so at the date of the Particulars of Claim seems clear from its express words if taken at face value, and as stated by Buxton LJ in Kesslar v Moore, Tibbits [2004] EWCA Civ 1551 “The best source for what the Claimant actually intended is to be found in the points of claim” (paragraph 23). I note that the Particulars of Claim were verified by a Statement of Truth signed by Ms Clements; notwithstanding paragraph 8 of the Defence in the Manweb action (also verified by her) I am of the view that it would be wrong to reject her evidence that at the time when she verified the Particulars of Claim in the UU action she believed their contents to be true.[49]I have borne in mind the fact that the Claim Form was issued 5 months before the service of the Particulars of Claim and only one month after the Protocol letters but I accept that the references to UUW in the letters were simple errors having regard to the fact that the Manweb claim (contrary to what was stated in the letters) had been intimated not against UUW but against UU. I also accept that at all material times prior to the service of Enpure’s Defence Halliwells’ instructions in fact came from UU, and not from UUW, as Miss Cruise, Mr Morris and Ms Clements confirm in the statements made in connection with the present application.[50]I also accept that the action would have been brought in UUW’s name as actual owner and occupier of the Works and against ACEL as the actual party to the Works Agreement, had the true facts been appreciated by Ms Clements and Miss Cruise, and this notwithstanding that the Manweb claim had been intimated against UU. Had the true position regarding the ownership and occupation of the Works been known, that would have had to be disclosed to WSW (who indeed had asked a direct question in their letter of 7 June 2007). Even if by then proceedings had been issued against UU, rather that UUW, an application to amend identical to that before me would have been inevitable, and I am not persuaded that Ms Clements would knowingly have verified a Statement of Case which she knew to state an untruth regarding the ownership and occupation of the Works, nor do I believe that Miss Cruise would knowingly have been a party to such a wrongful act.[51]It follows that I find in this case, both as regards UU and Amec, that genuine mistakes as to name were made within the meaning of CPR 19.5.3(a).[52]Whilst, as previously stated, I do not believe it to be a requirement under this Rule that the mistake must not be such as to cause any reasonable doubt as to the party intending to sue or be sued, and whilst I accept that none of the Enpure witnesses knew or suspected that a mistake had been made, I do find that it was reasonably apparent from the Statements of Case that they received on 5 November (namely the Particulars of Claim in the Manweb action and in the UU action) that the intention in both actions was to maintain a claim against and by the actual owner and occupier of the Works. True it is that Mr Leckie had no reason to doubt that UU was that company but he was aware that the basis of the alleged liability to Manweb was the ownership and occupation of the Works (paragraph 11(d) of his Witness Statement). Similarly of course Amec knew that the basis of the claim brought against it was the Works Agreement to which it and UU were alleged to be parties.[53]Alternatively the case also comes within CPR 19.5.3(b) but I would not have been prepared to exercise my discretion under that Rule if I had been satisfied (which I am not) that untruthful evidence had been given before me as to the state of mind of Miss Cruise and/or Ms Clements at the time the proceedings were issued.

Discretion

[54]Enpure (but not Amec in relation to the application concerning it) submit that even if I am satisfied that the case falls within CPR 19.5 I should exercise my discretion against allowing the amendment. Reliance is placed on the judgment of Christopher Clarke LJ in the case of ABB Asea Brown Boverie Limited v Daewoo. In paragraph 126 of his judgment the Judge stated that “I recognise that in Morgan Est the Court of Appeal allowed an amendment on the footing that there was no prejudice to the Defendant and that being deprived of an unmeritorious defence arising solely from a blunder by the other side did not count as prejudice. I do not, however, accept that a Limitation Act defence is always, or even usually, to be regarded as one of which the Defendants can be deprived without being relevantly prejudiced.[55]In addition reliance is placed on the culpability of Halliwells as regards to the mistakes that were made and the prejudice to Enpure in having to deal with events that occurred 7 years ago, in circumstances where the first notification of the claim was in the Protocol letter dated 22 May 2007.[56]Notwithstanding these arguments, I am satisfied that in the exercise of my discretion in order to do justice between the parties it is right to allow the application(a) The claim against Enpure was brought within the time permitted by the Limitation Act 1980 and the Rules and indeed I note that Enpure consented to the one month extension of time for service of the Claim Form sought by Halliwells.(b) I have found that genuine mistakes have been made by Halliwells and Ms Clements and although they are fairly to be criticised for the failure to ascertain the true position it is not a requirement of the Rules that a mistake must be blame-free.(c) The correcting of the name of UU requires no reformulation of the claim: the basis of the claim is precisely that pleaded in the Particulars of Claim.(d) To refuse the application to amend would in my judgment confer an unmeritous windfall on Enpure by reason of the blunders of UU and its Solicitors. I do not consider it to be any way unjust to deprive Enpure of that windfall.(e) To refuse the application may cause significant prejudice to UUW, given that it is common ground that its claims in contract and tort would be barred, although not I think its claim under the Civil Liability (Contribution) Act 1978.[57]For all the above reasons I allow the application but will obviously when handing down this judgment hear argument on outstanding matters, including costs and further directions.