A judge has departed from the normal rule that the applicant pays for amendments to a claim by ordering that the Defendant, Boots Opticians Professional Services Ltd (BOPSL), pay the Claimant's, Manorshow Ltd's costs: BOPSL were to blame for Manorshow bringing a dilapidations claim against the wrong defendant.
The need to amend was due to an apparent assignment of a tenancy by EVL, the correct defendant, to BOPSL in September 2009. After informing Manorshow that EVL would be assigning the lease to BOPSL, BOPSL took over occupation of the property and began paying rent to Manorshow. When Manorshow served a Section 25 notice terminating the tenancy in 2014, they served it on both EVL and BOPSL. Only BOPSL responded, with BOPSL's solicitors dealing with the continuation of the lease and the negotiation of a new lease. The new lease expressly recorded that BOPSL were surrendering their existing lease.
The dilapidations claim concerned the old lease. In May 2016, before proceedings were commenced, Manorshow requested evidence of the assignment from BOPSL. They were told by BOPSL's solicitors that the documentation related to a historic assignment and that they were having trouble locating the documents. In June 2016 BOPSL wrote to say that they were unable to find an assignment and therefore Manorshow had served the wrong party. Following this, Manorshow obtained judgement in default. This was later set aside, and the claim stayed. Following the failure of negotiations an application to substitute EVL was made in July 2017.
Defendant to pay
The judge granted the substitution under CPR 19.2(4)(b) on the basis that BOPSL's conduct had led Manorshow to believe there had been an assignment of the lease and that BOPSL was therefore the correct party. The judge pointed out that BOPSL's solicitors had never, either before or after proceedings were commenced, suggested that the assignment had not taken place. On the contrary, they said there had been one. For the same reasons, the judge ordered that BOPSL pay Manorshow's costs of the application.