Cunningham v Albany Construction Company Ltd

A claim issued in the name of a non-existent company is not necessarily a nullity. Where the cause of action was vested in an existing party and the incorrect claimant name resulted from an obvious mistake, the defect may be treated as an irregularity. The court may correct it under the combined effect of CPR rules 3.10 and 19.4. The identity of the intended claimant and absence of prejudice are material. Permission for a second appeal was refused because the applicant failed to attend and because the proposed appeal had no merit.

The applicant contracted for a boundary wall to be built between his land and adjoining land. The claim for the balance of the price was issued in the name of Albany Construction (Enfield) Limited, a company which did not exist. Albany Construction Limited later applied to be substituted as claimant and for amendment and service requirements to be dispensed with.

District Judge Eynon permitted the substitution on 3 June 2004. HHJ Kay QC dismissed the applicant’s appeal on 3 December 2004. The applicant sought permission for a second appeal, arguing that service by a non-existent claimant was ineffective, that the court lacked jurisdiction to amend the claim form, and that the four-month service period under CPR rule 7.6 could not be extended. The central issue was whether the naming error made the proceedings a nullity or a curable irregularity.

1. Application refused. The applicant’s non-attendance was sufficient ground for dismissal. The court also considered the merits and found no substance in the application.
2. The proposed appeal concerned a second appeal from HHJ Kay QC’s dismissal of the appeal against the substitution order. The argument was that the claim had been served in the name of a non-existent entity, so there had been no good service or jurisdiction to amend, and the four-month period in CPR rule 7.6 had expired.
3. Lord Justice Dyson held that the proceedings were not a nullity. The relevant principle from Fielding v Rigby, [1993] 1 WLR 1355, was applicable: where the cause of action was vested in an existing party, a defect in the claimant’s name could be an irregularity capable of correction.
4. The court applied that principle under the CPR. The error was correctable through the combined operation of rules 3.10 and 19.4. The intended claimant was clear, and the defendant suffered no prejudice from the mistake. The court rejected the contention that correction was wrong or futile merely because the service period had expired.
5. Lord Justice Waller agreed. The order was: application refused.

• Court of Appeal (Civil Division): permission for a second appeal from the order of HHJ Kay QC was refused on 14 November 2005.
• Luton County Court: HHJ Kay QC dismissed the appeal from District Judge Eynon’s order on 3 December 2004.
• Luton County Court: District Judge Eynon permitted Albany Construction Limited to be substituted as claimant on 3 June 2004.