Giles v Polarcus DMCC

Applications to strike out or obtain summary judgment must be considered with the overriding objective. A procedural defect should not normally defeat a potentially valid claim where it can be cured by amendment.

After limitation has expired, a change of defendant is permitted only if the conditions in CPR Parts 17.4 and 19.5 are satisfied. A mistake of name is different from a mistake as to identity. The intended defendant must be identifiable despite the incorrect name, and the mistake must be genuine. Where the claim form accurately identifies the defendant by its operative role, substituting another company is ordinarily a mistake of identity rather than nomenclature.

The claimant, a trainee mechanic injured aboard the vessel Polarcus Adira, brought proceedings against Polarcus DMCC. The vessel was operated by Polarcus DMCC but the claimant’s written employment agreement was with Polarcus Ltd.

After the limitation period had expired, Polarcus DMCC applied to strike out the claim or obtain summary judgment. The claimant sought to correct or substitute the defendant under CPR Parts 17.4 and 19.5. The issues were whether the claim disclosed an arguable claim against Polarcus DMCC and whether Polarcus Ltd could replace it.

1. Strike-out and summary judgment. The application by Polarcus DMCC was dismissed. The claim form described the defendant as owner and/or operator of the vessel. Although that description was partly inaccurate, Polarcus DMCC operated the vessel and there was an arguable claim against it in tort and for breach of statutory duty. The claim was therefore not bound to fail.
2. The procedural irregularity in serving Particulars of Claim naming Polarcus Ltd did not require strike-out. Until permission was granted, Polarcus DMCC remained the defendant. The Particulars could be treated as referring to Polarcus DMCC for present purposes, subject to amendment.
3. Substitution. The claimant’s application to substitute Polarcus Ltd was dismissed. Adelson v Associated Newspapers Ltd [2007] EWCA Civ 701; [2008] 1 WLR 585 required Parts 17.4 and 19.5 to be read together. The relevant mistake must be a genuine mistake as to nomenclature, not identity. The description in the claim form identified Polarcus DMCC as the vessel’s operator, so it did not demonstrate that the wrong name had been used for the intended defendant.
4. There was also no evidence from the person who issued the claim form explaining that a genuine naming mistake had occurred. Further, the claim could properly continue against Polarcus DMCC, so substitution was not necessary under Part 19.5.
5. The claimant was given the opportunity to amend the Particulars of Claim to plead more fully the case against Polarcus DMCC. Any application to amend would be considered separately.