TRW Pensions Trust Ltd & Anor v Indesit Company Polska SP Z.O.O & Anor

After expiry of the limitation period, substitution of a claimant is governed by Civil Procedure Rules 1998 Part 19.5 where the proposed claimant is a different legal entity. Part 17.4(3) applies only to correcting the name of the existing party. Under Part 19.5(3)(a), substitution for mistake requires proof that the person responsible for issuing the claim form made the mistake, that the proposed party would have been named absent the mistake, and that the mistake was as to the party’s name applying the generous Sardinia Sulcis test. Once jurisdiction is established, the court retains a discretion. Relevant considerations include prejudice, delay, the nature of the mistake and the surrounding litigation context. A simple mistake within a corporate group, causing no forensic prejudice, justified substitution.

The claimants brought subrogated claims concerning fire damage allegedly caused by a defective dishwasher. The second claimant was named as TP ICAP plc, but the leaseholder of the relevant premises was in fact TP ICAP Group Services Ltd, a separate company in the same corporate group.

After expiry of the limitation period, the second claimant applied either to amend its name under Civil Procedure Rules 1998 Part 17.4(3), or to substitute TP ICAP Group Services Ltd under Part 19.5(3)(a) or (b). The central issues were whether the mistake concerned the name or identity of the party, whether the statutory and procedural conditions for substitution were met, and whether substitution should be permitted in the court’s discretion.

1. Application granted. TP ICAP Group Services Ltd was substituted for TP ICAP plc as the second claimant under Civil Procedure Rules 1998 Part 19.5(3)(a).
2. The application was not one to correct the name of an existing party under Part 17.4(3). The claim form correctly identified TP ICAP plc by its name and company number. The mistake was that TP ICAP plc was not the entity holding the lease. The intended claimant was the company within the group that held the lease, namely TP ICAP Group.
3. Part 19.5(2) requires proceedings to have been commenced within the limitation period and the substitution to be necessary. The alternatives in Part 19.5(3)(a) to (c) are exclusive. Where the case is one of mistake, Part 19.5(3)(a) is the appropriate gateway and Part 19.5(3)(b) cannot be used as a more generous alternative.
4. Applying Adelson and Las Vegas Sands Corp v Associated Newspapers Ltd [2007] EWCA Civ 701 and Insight Group Ltd and Insightsoftware.Com Ltd v Kingston Smith [2012] EWHC 3644 (QB), the three requirements for mistake-based substitution were satisfied. The responsible solicitor had made the mistake; TP ICAP Group would have been named had it not occurred; and the mistake was one as to the name of the intended party applying the generous test in The Sardinia Sulcis [1991] 1 Lloyd's Rep 201.
5. The proposed substitution did not change the essential causes of action. The claim remained one brought by the leaseholder for losses arising from the fire. The reasoning in Nemeti v Sabre Insurance Co Ltd [2013] EWCA Civ 1555 supported that conclusion.
6. The court’s discretion should be exercised in favour of substitution. The defendants knew from the claim form and pleadings that the intended second claimant was the leaseholder. They suffered no prejudice, and delay was materially explained by consensual stays and attempts to obtain consent. A loss of a limitation defence was not, by itself, prejudice. The subrogated nature of the claim did not alter the position: the insurers stood wholly in the position of the insured.