It is fairly common to amend claim forms and other statements of the case when the need arises. This is often the case where instructions are received late on in the day and the claim form is issued just before limitation, when all the information may not be available or in cases where details of other/correct defendants come to light at a later date. A party may need to be added or to be substituted with another.
The general rules governing such amendments are set out in part 17 of the Civil Procedure Rules. Where a claim form requires amending before service, this can generally be done without the permission of the court. In cases where it becomes necessary to amend after service, this can be done with the written consent of all the parties involved or with the court’s permission. R.17.4 applies in circumstances where the amendments are sought after the end of the relevant limitation period.
The procedure for adding or substituting a party is set out in rule 4 of part 19. Special provisions exist in rule 5 and section 35 of the Limitation Act 1980 (“the Limitation Act”), for making such an addition or substitution after the end of the relevant limitation period.
Whilst these rules and provisions exist to enable mistakes to be corrected (e.g. changing the defendant’s name to the correct company), these do not allow an entirely new party or parties to be added after the expiry of limitation deadline
In the recent case of Godfrey Morgan Solicitors v Armes, the Court of Appeal held It was not permissible to join a party to a claim form after the expiry of limitation. This was a professional negligence claim that arose after the injury claim brought by the respondent (claimant), was inadvertently compromised by his solicitors during the settlement of an employment claim. This was done by a partnership called Godfrey Morgan Solicitors (“the Firm”). However, protective proceedings were issued against a company, Godfrey Morgan Solicitors Ltd (“the Company”) just before limitation and were amended before service without the court’s permission, to include the Firm, an entirely separate entity (though the correct defendant) as the second defendant, “jointly or in the alternative” to meet the claim.
It later transpired there was no contractual agreement between the claimant and the Company and all work done on his behalf (including the mistake) was undertaken by the Firm.
Unsurprisingly, the Firm made an application for the amendment to be disallowed, but rather surprisingly, their application was dismissed as was their first appeal. They were given permission to bring a second appeal at which, the judge identified the question to be determined as “If one amends to add a claim against D2 in the alternative is one adding a defendant, or substituting one?”
By reference to section 35 of the Limitation Act and rule 19.5, the Court of Appeal held it was the addition of a new defendant and the amendment and claim against the Firm could not be allowed because it was tantamount to the bringing a new claim against a new party after limitation.
Therefore, unfortunately, for the claimant, he had been a victim of solicitors’ negligence for a second time, which happily is not a common occurrence. Whilst issuing at the 11th hour is not uncommon for litigators, most often for reasons beyond their control, it can be disastrous when proceedings are issued against the wrong defendant. This case serves a lesson to us all.