Parsons & Anor v George & Anor

The Court of Appeal held that a tenant applying for a new tenancy under Part II of the Landlord and Tenant Act 1954 may be permitted to amend the claim form to add or substitute a party after the expiry of the period specified by section 29(3) of the 1954 Act, by virtue of CPR 19.5, where the statute governing the limitation period does not prohibit such applications. The court interpreted CPR 19.5(1)(c) broadly to include enactments which either expressly allow a change of parties or do not prohibit it, and concluded that the 1954 Act falls within that wider meaning.

The court applied the tests in CPR 19.5(2)–(3) and held that substitution was "necessary" because the claimants had intended to sue the person who answered the statutory description of "the landlord" and had named the wrong party by mistake; the identity of the intended defendant was ascertainable. The court exercised its discretion to allow substitution because the mistake was obvious, the correct party had not been misled and would suffer no prejudice.

Background and facts:

• The claimants were tenants under a lease subject to Part II of the Landlord and Tenant Act 1954. After the freehold was transferred on 23 April 2003, the claimants issued proceedings on 25 June 2003 for a new tenancy under section 29 of the 1954 Act but named the transferor executors as defendants. The transfer to Mrs Pamela Audrey Purcell had occurred before the claim was issued; the defendants were executors of the lessor and solicitors for both the executors and Mrs Purcell acted in the matter.
• The defendants (the executors) opposed the application on the ground that they were not the "competent landlord" under section 44 of the 1954 Act. The claimants applied on 15 September to substitute Mrs Purcell as defendant, explaining that the naming of the executors was a mistake.

Procedural posture:

• The application for substitution was refused by Deputy District Judge Lawrence, who held no power under CPR 19.2, 19.5 or 3.10 to allow the change after the expiry of the period in section 29(3). Permission to appeal was given and the case was transferred to the Court of Appeal.

Nature of the relief sought:

• The tenant claimants sought an order substituting the correct landlord as defendant so that the court could entertain their application for a new tenancy under Part II of the 1954 Act despite the expiry of the statutory four-month limit in section 29(3).

Issues framed by the court:

• Whether the court has power under the Civil Procedure Rules to permit addition or substitution of a party after the expiry of the period prescribed by section 29(3) of the 1954 Act; specifically whether CPR 19.5(1)(c) applies to the Landlord and Tenant Act 1954.
• Whether, on the facts, the conditions in CPR 19.5(2)–(3) were satisfied and whether substitution should be allowed in the exercise of the court's discretion.

Reasoning and disposition:

• The court reviewed the pre-CPR law (RSC Ord 20 r 5 and Limitation Act 1980 s35) and concluded that the Civil Procedure Rule Committee did not intend to deprive courts of the pre-existing jurisdiction to allow substitution after expiry of a statutory limitation period where the statute does not prohibit such a change.
• The court interpreted CPR 19.5(1)(c) broadly to include enactments which either expressly permit a change of parties or do not prohibit it, holding that applications to substitute a landlord in proceedings under section 29(3) are an incident of those statutory proceedings and therefore permitted unless prohibited.
• Applying CPR 19.5(3)(a) in light of authorities such as Evans and Signet, the court concluded the claimants had intended to sue the person who answered the statutory description of "the landlord" and had genuinely misnamed the party; the substitution therefore met the "necessary" test. The court exercised its discretion to allow substitution because no prejudice or unfairness would result.

Subsidiary findings and implications:

• The court indicated that the same result would have been reached under CPR 19.2 or CPR 3.10 if those rules had been thought to apply. The decision preserves the pre-CPR approach to similar statutory limitation periods that do not expressly forbid substitution.

Appeal allowed. The Court of Appeal held that CPR 19.5(1)(c) can be read to cover enactments which do not prohibit a change of parties after the end of a statutory limitation period; the Landlord and Tenant Act 1954 therefore falls within CPR 19.5. On the facts substitution of the correct landlord under CPR 19.5 was "necessary" because the claimants had intended to sue the person answering the statutory description of "the landlord" and the mistake was obvious; the court exercised its discretion to allow substitution since no prejudice would be caused.

Appeal from Romford County Court (Deputy District Judge Lawrence RM304205). Permission to appeal was given by the Deputy District Judge; on 14 January 2004 HH Judge Richardson ordered transfer to the Court of Appeal. Determined by the Court of Appeal, neutral citation [2004] EWCA Civ 912.