Lockheed Martin Group v Willis Group Ltd

Substitution after expiry of limitation under CPR 19.5 requires a genuine mistake as to the name of the intended party, rather than the party’s identity. The intended party must have been apparent to the defendant despite the wrong name, and the claimant must show that the new party would have been named had the mistake not occurred. A general description, such as a broker within a corporate group, may be insufficient where several entities answer that description. Even where the formal test is satisfied, discretion may be exercised against amendment where the defendant had no timely notice, the claimant delayed without explanation, or the claim could not be properly particularised when issued.

The claimant issued proceedings shortly before limitation expired against Willis Group Holdings Limited. It later sought substitution of Willis Group Limited and Willis Limited, contending that the original defendant had been misnamed. The defendant challenged the substitution order made by Master Fontaine under CPR 19.5(3)(a)(i). The claimant also applied for an extension of time to serve particulars of claim, but that application arose only if substitution failed. The central issues were whether the claimant had made a qualifying mistake as to name, whether the intended defendant was sufficiently identifiable from the claim form, and whether substitution should be allowed in the exercise of discretion.

1. The defendant’s application succeeded. Master Fontaine’s substitution order was set aside. The claimant’s application for an extension of time was therefore unnecessary.
2. Applying Adelson v Associated Newspapers [2008] 1 WLR 585, the court treated CPR 19.5 as requiring a genuine mistake as to the name of the intended party, not its identity. The person responsible for issuing the claim had to show that, absent the mistake, the proposed new party would have been named.
3. The claimant had made a qualifying mistake in relation to Willis Group Limited for the purposes of the assumption made by the court. It had not, however, made such a mistake in relation to Willis Limited. The evidence showed that there had been no intention to sue Willis Limited when the claim form was issued.
4. The description of the intended defendant as a broker did not identify a particular Willis entity. The claim form contained insufficient information to remove reasonable doubt about which company was intended. The defendant was therefore misled within the meaning of CPR 19.5.
5. The court also exercised its discretion against substitution. The defendant had received no notice before limitation expired. There was no explanation for the six-year period following the settlement, no pre-issue research to identify the correct defendant, and the claimant could not formulate proper particulars when the claim form was issued. That inability went to substance rather than mere formality. The procedural defects concerning service were treated as make-weight matters.

First-instance decision. The judgment set aside an order made without notice by Master Fontaine substituting defendants under CPR 19.5(3)(a)(i).