Parsons & Anor v George & Anor

Where a statutory time limit governs an application for a new business tenancy, CPR r 19.5 is the exclusive regime for adding or substituting parties after its expiry. CPR r 19.5(1)(c) includes an enactment which does not prohibit such a change; it is not confined to an enactment which expressly permits it.

A party is named in mistake for another within CPR r 19.5(3)(a) where the claimant intended to sue a person identifiable by a specific description, such as the competent landlord, but named the wrong person. The court may substitute the correct party if the limitation period was current when proceedings began and the conditions for necessity are met. The discretion should ordinarily be exercised where the error is apparent, the intended defendant was not misled, and no prejudice arises beyond loss of a limitation defence.

The claimants, tenants of premises used as a school, applied for a new tenancy under Part II of the Landlord and Tenant Act 1954. Before they issued their claim, the former landlords had transferred the freehold to Mrs Purcell. The claim form nevertheless named the former landlords as defendants.

After the time limit in section 29(3) had expired, the claimants sought to substitute Mrs Purcell, who was then the competent landlord. The Deputy District Judge at Romford County Court held that he lacked power under CPR rr 19.2, 19.5 and 3.10, although he would have allowed the substitution if he had possessed jurisdiction.

The appeal concerned whether CPR r 19.5 permitted the substitution after expiry of the statutory time limit and, if so, whether its conditions and the discretionary requirements were satisfied.

1. Appeal allowed unanimously. Lord Justice Dyson gave the reasons, with whom Lord Justice Clarke and the Vice-Chancellor agreed.

2. The time limit in section 29(3) of the Landlord and Tenant Act 1954 was a limitation period. CPR r 19.5, rather than the general provision in CPR r 19.2, governed an application to change parties after its expiry. The rules form two distinct codes: CPR r 19.5 addresses changes after relevant limitation periods, while CPR r 19.2 addresses other changes of parties.

3. CPR r 19.5(1)(c) was construed broadly. It covers an enactment under which a change of parties is allowed because the enactment does not prohibit it. Part II of the 1954 Act contemplated applications for new tenancies and did not prohibit a post-expiry substitution. The rule therefore applied. This construction preserved the pre-CPR jurisdiction and avoided the arbitrary result of applying different tests to different statutory limitation periods.

4. The claimants met CPR r 19.5(2) and (3)(a). The phrase named in the claim form in mistake for the new party was not confined to strict misnomer. Following the approach adopted in Horne-Roberts v SmithKline Beecham plc [2001] EWCA Civ 2006, it covered a claimant who intended to sue the person answering a specific description but mistakenly named another. Here the claimants intended to sue the competent landlord and mistakenly named the former landlords.

5. Substitution was just. The error was obvious to the solicitors acting for both the former landlords and Mrs Purcell. Mrs Purcell was not misled and would suffer no prejudice. Mrs Purcell was substituted for the original defendants.

• Court of Appeal (Civil Division): Allowed the tenants’ appeal in [2004] EWCA Civ 912 and held that Mrs Purcell could be substituted under CPR r 19.5.
• Romford County Court: Deputy District Judge Lawrence held that the court had no power to substitute the competent landlord after expiry of the section 29(3) period, while indicating that he would have exercised any available discretion in the claimants’ favour.