Godfrey Morgan Solicitors (A Firm) v Armes

After expiry of a limitation period, a proposed defendant may be introduced only within the strictly defined conditions in Limitation Act 1980, section 35 and CPR rule 19.5. A substitution for a party named by mistake requires a true replacement: the wrongly named party must ordinarily leave the action and the correct party take its place.

Joining a second defendant in the alternative, while retaining the original defendant so that liability can later be determined between them, is an addition, not a substitution. It is therefore impermissible after limitation has expired unless another rule expressly permits it. The limited cause-of-action-specific substitution recognised where distinct causes of action are involved does not alter that conclusion.

The claimant alleged that his former solicitors had negligently compromised his personal-injury claim. He issued the professional-negligence claim against Godfrey Morgan Solicitors Ltd on the final day of the six-year limitation period. Before service, but after limitation had expired, he amended the claim form to join Godfrey Morgan Solicitors, a firm, as a second defendant.

The claimant wished to sue the Company and the Firm jointly or in the alternative because he had not established which legal entity was responsible for the solicitor's conduct. District Judge Rogers dismissed the Firm's application to disallow the amendment. His Honour Judge Moloney QC dismissed the Firm's appeal, holding that the amendment was a substitution in the alternative, although he disallowed any joint claim.

The Firm's second appeal raised whether an alternative claim against a newly joined defendant was a substitution within section 35 of the Limitation Act 1980 and CPR rule 19.5, or an impermissible addition of a new party after limitation.

1. Appeal allowed. The amendment joining the Firm was disallowed. The claimant had added, rather than substituted, a new defendant after expiry of the limitation period.

2. Section 35 of the Limitation Act 1980 treats a claim involving the addition or substitution of a party as a new claim. CPR rule 19.5 exhaustively identifies when a post-limitation change of party is necessary. Under rule 19.5(3)(a), the new party must be substituted for a party named in the claim form by mistake.

3. Substitution has its ordinary meaning of replacement. As explained in Davies v Elsby Brothers [1961] 1 WLR 170, it entails adding a party in place of a party removed. The misnomer jurisdiction corrects a claimant's mistaken description or naming of the person intended to be sued. It does not permit a claimant who is uncertain which of several distinct legal persons is responsible to retain the original defendant and add another after limitation.

4. The judge's proposed “substitution in the alternative” had no basis in rule 19.5(3)(a). The purpose of the amendment was to keep both entities in the action until responsibility for the alleged negligence could be resolved. That was an addition of the Firm, even though the claim was pleaded in the alternative.

5. Adelson v Associated Newspapers Ltd [2007] EWCA Civ 701 did not assist the claimant. It concerned separate causes of action held by different claimants, allowing substitution to be considered cause of action by cause of action. This case concerned one cause of action and did not fall within that limited situation.

6. It was unnecessary to decide whether there had been a qualifying mistake. The respondent's request that the Court of Appeal permit a new amendment replacing the Company with the Firm was a fresh application, not a basis to uphold the order below. The court expressed no view on any future application of that kind.

• Court of Appeal (Civil Division) Allowed the Firm's second appeal and disallowed the amendment: [2017] EWCA Civ 323.
• Norwich County Court (His Honour Judge Moloney QC) On 6 November 2015, dismissed the Firm's appeal from the district judge, while disallowing the joint aspect of the amended claim.
• County Court (District Judge Rogers) On 8 June 2015, dismissed the Firm's application under CPR rule 17.2 to disallow the amendment.