Cheung v Southwark London Borough Council & Ors

Where a claimant has deliberately brought proceedings in the wrong name, the Court of Appeal may refuse to join the controlled company which should have been claimant at the appeal stage without the respondents’ agreement. A proposed appeal may be dismissed summarily where the standing defect remains and the proposed amendment cannot properly be made.

The appellant sought to appeal a Chancery Division decision that she had no title to bring proceedings in her own name, rather than in the name of Capital Direct Management Ltd, a company she controlled.

At a renewed application, the Court of Appeal adjourned the matter to allow the respondents to consider whether they would agree to an amendment enabling the substantive issues to be tried. They declined. The appellant had deliberately chosen not to join the company earlier, despite legal advice and a warning from Master Teverson about the standing problem. The central issue was whether the company could be joined at the appeal stage without agreement.

1. Application dismissed. The proposed appeal was without merit because the appellant had no title to pursue the action in her own name, while the company which she controlled had not been joined as claimant.
2. The appellant had deliberately declined to join the company at an earlier stage, despite contrary legal advice and the Master’s careful warning about the potential standing problem. Those circumstances materially weakened any application to cure the defect on appeal.
3. Lord Justice Carnwath was not persuaded that the company could be joined at the appeal stage other than by agreement. The respondents had considered the proposed course and had good reasons for refusing consent.
4. The application was dismissed forthwith. The stay on execution of the costs orders made on 9 January 2008 was lifted. The application dated 9 September 2008 to substitute the company as a party to the appeal was also dismissed.
5. Any application by the respondents for costs was to be made in writing within fourteen days, with fourteen days for the appellant’s written response. The court indicated that it was unlikely to allow more than one set of costs for the three respondents without explanation.

• High Court of Justice, Chancery Division: held that the appellant had no title to bring the action in her own name rather than in the name of Capital Direct Management Ltd. The citation of that decision is not stated in the judgment.
• Court of Appeal (Civil Division): dismissed the proposed appeal and the application to substitute the company as a party; the stay on execution of the costs orders was lifted.