Haq v Singh

For the purposes of rule 17.4(4) of the Civil Procedure Rules 1998, a party’s capacity denotes the legal status or characteristics by which that party may sue or be sued personally or representatively. Acquisition of title to a cause of action by assignment does not alter capacity. An assignee who claimed personally before the assignment continues to claim personally afterwards.

The rule may permit a claimant who purported to sue as an administrator before obtaining letters of administration to amend after acquiring that representative capacity. It does not permit a claimant who lacked title to cure an expired limitation period merely by obtaining an assignment and pleading it as a change of capacity.

The claimant was adjudged bankrupt after allegedly receiving negligent advice from the defendant’s solicitors. Her hybrid claim for personal and property-related damages vested in her trustee in bankruptcy. She nevertheless began the action in her own name. After the defendant pleaded that she lacked capacity, the trustee assigned the causes of action and related remedies to her.

A deputy judge of the Queen’s Bench Division decided that the assignment cured the defect and permitted an amendment under rule 17.4(4) of the Civil Procedure Rules 1998, although the limitation period had expired. The defendant appealed with limited permission. The sole issue was whether pleading the assignment altered the capacity in which the claimant sued within rule 17.4(4).

1. Appeal allowed unanimously. Lady Justice Arden, with whom Lord Justice Pill agreed, held that obtaining an assignment of the cause of action did not alter the capacity in which the claimant sued for the purposes of rule 17.4(4) of the Civil Procedure Rules 1998. The deputy judge therefore lacked power under that provision to permit the amendment.

2. In rule 17.4(4), “capacity” means the legal competence or status by which a person may bring or defend a claim. A person may possess that competence personally or on behalf of another. The provision consequently concerns changes between personal and representative capacities, or between different representative capacities.

3. An assignment concerns title acquired through contract rather than the assignee’s legal status. The claimant had always purported to claim personally and solely for herself. Although the assignment later gave her a right to pursue the cause of action, subject to limitation, she remained a claimant acting in her personal capacity. The approach in Robinson v Unicos Property Corporation Ltd [1962] 1 WLR 520 was followed.

4. The observations about assignment in Mulkerrins v PriceWaterhouse Coopers [2001] BPIR 106 did not determine the meaning of rule 17.4(4). They therefore did not establish that the amendment fell within that rule.

5. Lady Justice Arden further considered that rule 17.4(4) may permit a person who purported to sue as an administrator before obtaining letters of administration to amend after acquiring that representative capacity. The court’s jurisdiction depends on the claimant’s actual capacity and is not controlled by the label used in the statement of case. On that point the rule removed the former technical effect of Ingall v Moran [1944] 1 KB 160 and Finnegan v Cementation Co Ltd [1953] 1 QB 688. That issue did not arise for decision in the present appeal.

6. The order on the preliminary issue was set aside. The action was dismissed, and the appeal was allowed with costs. Leave to appeal to the House of Lords was refused.

1. Court of Appeal: The defendant’s appeal was allowed unanimously. The order permitting amendment was set aside and the action was dismissed.

2. Queen’s Bench Division: His Honour Judge Grenfell, sitting as a deputy judge, determined the preliminary issue in the claimant’s favour and permitted her to amend the proceedings to plead the trustee’s assignment.