The 52 Occupiers of the Ceramic Works v Bowmer & Kirkland Ltd & Anor

After expiry of the limitation period, substitution under CPR r. 19.5 requires proof that the named party was included by mistake for the intended party and that substitution is necessary. The mistake may concern the intended party’s name, rather than merely a typographical correction, but must not be a conscious decision to sue a different entity. The court must then exercise its discretion having regard to fairness, prejudice, party conduct and the overriding objective. Confusion between similar corporate names may justify substitution where the intended defendant understood the substance of the claim and suffers little material prejudice.

The claim concerned alleged defects in construction works. The claimants intended to pursue B & K Building Services Limited, the relevant contractor, but the claim form named Bowmer & Kirkland Limited, a non-existent entity with no connection to the project. The primary limitation period had expired before the claimants applied to substitute B & K as first defendant.

The application was brought under CPR rr. 17.4 and 19.5, but was pursued as an application for substitution under CPR r. 19.5. The issues were whether the original defendant had been named by mistake for B & K, whether substitution was necessary, and whether the court should exercise its discretion to permit it.

1. Application granted. B & K Building Services Limited was substituted for Bowmer & Kirkland Limited as first defendant.
2. CPR r. 19.5(2)(a) was satisfied because the limitation period was current when proceedings began. The remaining issue was whether substitution was necessary under r. 19.5(2)(b), because the original party had been named in mistake for the new party under r. 19.5(3)(a).
3. Applying Insight Group v Kingston Smith [2012] EWHC 3644 (QB), the court found that the mistake was made by those responsible for issuing the claim form; that B & K would have been named had the mistake not occurred; and that the mistake concerned the name of the intended defendant rather than a deliberate choice to sue another entity.
4. The evidence showed that B & K had been the intended contractor defendant throughout the relevant pre-action dealings. The later references to Bowmer & Kirkland Limited resulted from confusion between similar names and shorthand descriptions. The court rejected the contention that the claimants had consciously changed their intended defendant.
5. The discretion under r. 19.5(2) should be exercised in favour of substitution. B & K had been apprised of the material facts and could defend the claim on its merits. Any material prejudice was minimal. The parties’ conduct also had to be considered in light of CPR r. 1.3 and the overriding objective.