Kesslar v Moore & Tibbits

Under Civil Procedure Rules r 19.5(3)(a), a party may be substituted after expiry of a limitation period where the claimant intended to sue a defendant identifiable by a case-specific description but mistakenly named another party. The rule extends beyond a strict misnomer.

The inquiry is directed to the claimant’s true intention, assessed objectively from the pleadings and surrounding material. A later attempt to establish liability of the originally named party does not alter that intention. Where the claim was always directed at the persons alleged to bear the primary liability, an erroneous procedural method of impleading them may constitute the required mistake.

The claimant alleged that a solicitor at Kundert and Co had negligently conducted her 1997 conveyance, causing defects in access to her garage. Kundert and Co was later taken over by Moore & Tibbits, but its former partners did not become partners in that firm.

Shortly before expiry of the limitation period, the claimant issued proceedings against Moore & Tibbits (incorporating Kundert and Co). After service, Moore & Tibbits denied that it was the correct defendant. The claimant applied to substitute the two former Kundert and Co partners. A Deputy District Judge refused substitution and HHJ Geddes upheld that decision.

The central issue was whether the successor firm had been named in mistake for the former partners within r 19.5(3)(a).

1. Appeal allowed unanimously. Buxton LJ, with whom Sedley and Latham LJJ agreed, held that Civil Procedure Rules r 19.5(3)(a), read with Limitation Act 1980 s 35, was not confined to a strict misnomer. It permitted substitution where the claimant had always intended to sue an intended defendant identifiable by a description specific to the case, but had mistakenly named another party. The Court followed Horne-Roberts v SmithKline Beecham plc [2002] 1 WLR 1662 and applied the approach stated in Parsons v George [2004] EWCA Civ. 912.
2. The contemporaneous correspondence and, above all, the points of claim showed that the claimant’s intended claim was for Miss Roughley’s alleged primary negligence in the conveyance. Her mistake was to suppose that naming Moore & Tibbits, as successor to Kundert and Co, effectively impleaded the former Kundert partners. It was therefore a mistake within the rule, notwithstanding that she knew the former partners’ identities.
3. The Deputy District Judge had wrongly characterised the error as merely a mistake about the legal liability or capacity of Moore & Tibbits. Later attempts by the claimant’s solicitor to establish an independent basis of liability against that firm did not determine the original intention disclosed by the pleaded case.
4. Ramsey and Maclaine v Leonard Curtis [2001] BPIR 389 did not require a different result. Its reasoning concerned the distinct and exceptional error of treating a partnership as liable for acts done by administrative receivers, an office which a partnership could not hold.
5. The respondents accepted that, once the rule applied, there was no basis to refuse relief in discretion. The Court ordered substitution of Mr Kundert and Miss Roughley. Sedley LJ also observed that withholding the point until limitation had expired was inconsistent with the overriding objective. The Court made consequential costs orders.

• Court of Appeal (Civil Division): Allowed the claimant’s appeal and ordered substitution of the former Kundert and Co partners.
• Redditch County Court (HHJ Geddes): Upheld the Deputy District Judge’s refusal to substitute the proposed defendants.
• County Court (Deputy District Judge Morgan): Refused the claimant’s application under Civil Procedure Rules r 19.5(3)(a).