Best Friends Group & Anor (t/a Best Friends) v Barclays Bank Plc

Once the relevant limitation period has expired, an amendment substituting a claimant under Civil Procedure Rules Part 17.4(3) is available only if the mistake was genuine and would not cause reasonable doubt about the claimant’s identity. The court must then decide whether to exercise its discretion.

The enquiry is fact-sensitive. Confusion between a trading name and a separate legal person, combined claims for different businesses, lack of evidence from the intended claimant and conduct keeping options open may defeat the application. Delay and repeated procedural failures may justify refusal, although the discretion must not be punitive. An appellate court should respect an evaluative case-management decision unless it is wrong in principle or plainly wrong.

Mr Bennett entered interest rate swaps with Barclays in his own name. After the Bank paid compensation for the swap losses, proceedings for consequential loss were issued in the name of Best Friends Group after limitation had expired for one swap and shortly before expiry for the others. The pleadings included losses of a separate unlimited company, Best Friends Veterinary Group.

The claim form was purportedly amended to name Mr Bennett, without permission under Civil Procedure Rules Part 19.5. The Mercantile Court refused the later application under Part 17.4 to correct the claimant’s name and struck out the claim. The appeal challenged the findings that there was no genuine mistake, that the naming caused reasonable doubt as to identity, and that discretion should be refused.

The appeal was dismissed. Phillips J was entitled to refuse permission to correct the claimant’s name and to strike out the claim.

1. Three-stage enquiry. Under Civil Procedure Rules Part 17.4(3), the court must ask whether there was a genuine mistake; whether the mistake would cause reasonable doubt as to the identity of the claimant; and, if those requirements are satisfied, whether the court should exercise its discretion to allow the amendment.
2. Genuine mistake and identity. The first two questions were fact-sensitive and could be considered together. Although the swaps were entered into by Mr Bennett personally, the evidence showed that Best Friends and BFG were manifestations of Best Friends Veterinary Group, a separate legal person. The pleaded losses included combined losses of Mr Bennett and that company, including the £212,000 lost-profit claim and losses relating to the Peterborough premises. Mr Bennett did not give evidence, and the claims were not confined to his own losses. The Judge was entitled to find both that the mistake was not shown to be genuine and that the naming of Best Friends Group caused reasonable doubt as to the claimant’s identity.
3. Discretion. The discretion was not a power to punish a party for a harmless solicitor’s error. It could nevertheless properly be exercised against the amendment. The claim had been issued at or near the end of the limitation periods, the error was known by March 2015, and no prompt application was made even after the Defence expressly raised the ineffective joinder. Instead, an unjustified allegation of deliberate concealment was pursued and substantial unnecessary costs were incurred. The absence of a proper explanation for repeated failures justified refusal.
4. Appellate review. The Judge’s decision was an evaluative case-management decision. Applying the approach restated in Barton v Wright Hassall LLP, [2018] 1 WLR 1119, the Court of Appeal would not interfere absent an error of principle or a plainly wrong conclusion. Neither was established.

1. Court of Appeal (Civil Division) dismissed the appeal in [2018] EWCA Civ 601.
2. Queen’s Bench Division, London Mercantile Court, on 9 September 2016, refused the application to correct the claimant’s name under Part 17.4 and struck out the claim.