Suing the wrong defendant
Many scenarios that arise whereby the wrong defendant is sued can be avoided through a combination of active case management allied to careful checks and experience. In many cases the correct defendant is often actually known. The origin of the problem lies in the fact that the case is issued with the wrong name for the defendant upon the claim form and particulars of claim. Experience suggests that the likelihood of pursuing inadvertently the wrong defendant often has its origin in last-minute litigation and specifically the almost perennial problem of the limitation period. A fundamental step at the commencement of the case is to think of a potential trial. You want to ensure you do not experience the sinking feeling of being told the wrong party has been invited to the court! It’s an expensive mistake. An amendment to correct the name of a party may be allowed, even if made after the expiry of a relevant limitation period provided the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not mis-leading, or such as to cause any reasonable doubt as to the identity of the person intending to sue or to be sued.(CPR Pt 17.4.5) Transposition of the names of the parties from defendant to claimant and vice versa is an irregularity but does not render the claim form a nullity. If made by a genuine mistake and it is is not misleading, permission to amend may be given, even beyond the passing of the relevant limitation period. See Teltscher Brothers v London & India Dock Investments limited 1989 1 W.L.R. 770 Prevention is cheaper than a cure In first instance it is important to ensure that comprehensive instructions are taken and the client is effectively “mined” for as much information as is possible to identify any defendants that may be relevant. Subsequently the pre-action personal injury protocol notification letter concentrates the fee earners mind in relation to the potential defendant not least because it has to be addressed them! It is better to send out letters of claim to a multitude of potential defendants when one is uncertain of the correct defendant than to the dispatch a single letter of claim await the result and then proceed down the chain of blame whereby each subsequent defendant blames the next one down the line.
Further clues as to whether you are on track to sue the correct defendant will derive from the reply of the insurer. However, care still needs to be taken to ensure there is clarity. If not, the time to check is on the receipt of the first letter and not on the last day of the limitation period. This is why in the majority of personal injury claims there is compelling reason to issue proceedings not less than six months before limitation to ensure there is potential to put things right if they've gone wrong. We shall return to this point later. It is important that you remember as a general rule; “all persons to be sued should be sued at the same time and in the same action” Morris V Wentworth-Stanley. 1999 QB 1004
Some specific considerations In Road Traffic Cases. On first notification of a claim routine checks of the motor insurers’ database will highlight whether the vehicle is insured. A request for limited particulars from the police will provide crucial information as to the identity of the driver. DVLA enquiries will also assist in providing details as to the registered owner of the vehicle. It is important to ensure you are proceeding against the driver and not the registered owner of the vehicle. If the vehicle is obviously commercial or there is compelling evidence that the driver of the vehicle was using the vehicle in the course of employment and not on a “frolic of his own” there will of course be potential to involve the employees themselves on the basis of their vicarious liability for the acts and omissions of the employee. Unless there is compelling reason it is the driver and not the policy holder who should be the defendant. In Employment Cases. Claimant's representatives need to be alive to the difference between a sole trader, partnership and limited company. Past experience suggests the biggest area of confusion lies in the distinction between a limited company and other forms of business enterprise. For example, were you to commence proceedings against Paul Smith when the intended defendant was Paul Smith Ltd you would find your claim would fail. You would incur a legal bill, embarrassment and possibly a negligence claim. This is because a company has a separate legal personality and can bring an action and be sued in its own right.
Because commerce has become more international companies trading in the United Kingdom may in fact be registered offshore and again particular care has to be taken to make certain you have identified the correct company. For example were you to bring a claim against Airtours UK you would find that the company was dormant. Confusion at the correct defendant can be eliminated by visiting Companies House which provides a free online Web resource. Partnerships are not legal persons. If partners carry on business in England or Wales they may sue or be sued in the names of their firm which will be treated as a collective description. For example Lee & Co (a firm). It is possible to compel all members constituting that firm to disclose the names and addresses of all members. The pre action disclosure application being the mechanism to achieve this. The Business Names Act of 1985 provides that the person or persons carrying on business in another name must give an address service on all business letters, written orders, the goods or services to be supplied to the business, invoices and receipts. However, professional partnerships of more than 20 persons are subject to slightly different rules. By suing partners in their firm's name creates entitlement to judgement against partnership property. Section 23 of the partnership act 1890 refers. In relation to sole traders the search of the bankruptcy register will assist in identifying whether the correct defendant has been pursued insofar as the ability to pay when no insurer appears on the radar. A search of the register of judgements similarly assists in research as to the potential economic viability of the prospective defendant. Particular care has to be taken when dealing with a company which has gone into liquidation. If the company has been removed from the company register it becomes necessary to request that the company be reinstated upon the company register before issue. Hence the need to be proactive especially where even a hint of these problems are identified. In Highway Claims. In cases of this nature the location of the accident will be of utmost importance. Where accidents occur upon the Highway the appropriate defendant will be the body with responsibility to repair the Highway concerned. By section 41 (1) of the Highways act 1980 “the authority which is the time being the Highway authority for the Highway maintainable at the public expense” is under a statue duty to maintain the Highway. Where accidents occur upon a road designated a trunk road pursuant to the Highways act 1980 section 41 (2) indicates orders designating a particular road as a trunk road may have particular directions as to the duty to maintain both the truckload and any part of the Highway which crosses the trunk road.
Privately maintained footpaths or bridleways may also be highways maintainable at public expense by operation of the Highways act 1980 section 36. A road not shown upon the tithe map and not showing evidence of being repaired at public expense will invariably be inferred as a private street. In most cases outside London the county council automatic policy district Council is usually the correct defendant. However the Secretary of State for transport or in the case of Wales Secretary of State for Wales has responsibility to any trunk road. Any road in respect of which he is appointed Highway authority by statutory instrument and any other Highway constructed by him except where the local highway authority is designated as the Highway authority for the road. Within London the situation is slightly different. With the City of London the common Council is the Highway authority unless specifically reasons set out previously the Minister is responsible. The Council of the London Borough will ordinarily be a prospective defendant and inquiry of them in any accident upon the Highway within the Borough will be the first port of call. Independent contractors who repair the Highway cannot alleviate the statutory responsibility of the authority. Section 41 of the highways act refers. As a result any claimant who sustains personal injury as a result of the failure by subcontractor to do the works necessary to discharge section 41 may not be required to sue the subcontractor.. Fatal Cases The estate should be represented by the deceased's personal executors (or administrators) and they ought to be joined in their capacity as this. Where the defendant dies before proceedings are commenced and a grant of probate or administration has been made the claim must be made by issuing and naming as defendant “the personal representatives of” the deceased. Within four months after issue the claimant must apply to the court to appoint someone to represent the estate. Failure to do so causes the claim form to become invalid for service. If probate or letters of administration have not been granted by the time proceedings are issued the claim must be brought against “the estate of “ the deceased and the claimant must again within four months of issue apply for an order appointing a person to represent the estate of the deceased in the claim. Failure to do so may again render the claim form invalid for service. If the claimant in error has issued a claim against the personal representatives of the deceased but a grant of probate or administration has not been made then by rule 19.8.3 such claims are treated as having been brought against the “estate of the deceased.”
CPR 19.8A.2 sets out the procedure agreed between the official Solicitor and the motor insurers bureau. It applies when no grant of probate or administration of the estate of the deceased has been obtained on the claimant contends that the motor insurers bureau is interested under its uninsured drivers agreement. Immediately following the issue of a claim form pursuant to CPR 19.8(2)(b)(1), brought against the estate of the deceased the claimant should write to the MIB enclose a copy of the issued claim form and enquiring if the MIB is willing to be appointed to represent the estate of the deceased in the claim pursuant to CPR19.8.2.b.(ii). If the MIB agrees their letter to that effect should be produced to the court in support of an application to give effect to that agreement. In certain circumstances the MIB may feel unable to accept such appointment. In that case the Official Solicitor should be approached. It is usual he will be willing to accept appointment in such circumstances subject to payment of his proper costs. His involvement will usually be limited to the acceptance of service only and he will not take any subsequent part in the proceedings. Putting it right See CPR part 19. Any number of claimants or defendants may be joined as parties to a claim. It is possible to add to or substitute parties but there is a distinction between scenarios where limitation has not expired and where it has. Change of parties – general 19.2 (1) This rule applies where a party is to be added or substituted except where the case falls within rule 19.5 (special provisions about changing parties after the end of a relevant limitation period. (2) The court may order a person to be added as a new party if – (a)it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue. (3) The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings. (4)The court may order a new party to be substituted for an existing one if –
(a) the existing party’s interest or liability has passed to the new party; and (b)it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings Procedure for adding and substituting parties 19.4 (1) The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served. (2)An application for permission under paragraph (1) may be made by – (a) an existing party; or (b) a person who wishes to become a party. (3)An application for an order under rule 19.2(4) (substitution of a new party where existing party’s interest or liability has passed) – (a)may be made without notice; and (b)must be supported by evidence. (4) Nobody may be added or substituted as a claimant unless – (a) he has given his consent in writing; and (b) that consent has been filed with the court. (4A) The Commissioners for HM Revenue and Customs may be added as a party to proceedings only if they consent in writing. (5)An order for the removal, addition or substitution of a party must be served on – (a) all parties to the proceedings; and (b)any other person affected by the order. (6)When the court makes an order for the removal, addition or substitution of a party, it may give consequential directions about – (a)filing and serving the claim form on any new defendant; (b)serving relevant documents on the new party; and (c)the management of the proceedings. Special provisions about adding or substituting parties after the end of a relevant limitation period
19.5 (1) This rule applies to a change of parties after the end of a period of limitation under – (a) the Limitation Act 1980(1); (b) the Foreign Limitation Periods Act 1984(2); or (c) any other enactment which allows such a change, or under which such a change is allowed. (2) The court may add or substitute a party only if – (a)the relevant limitation period (GL) was current when the proceedings were started; and (b)the addition or substitution is necessary. (3)The addition or substitution of a party is necessary only if the court is satisfied that – (a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party; (b)the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or (c)the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party. (4) In addition, in a claim for personal injuries the court may add or substitute a party where it directs that – (a)(i)section 11 (special time limit for claims for personal injuries); or (ii)section 12 (special time limit for claims under fatal accidents legislation), of the Limitation Act 1980 shall not apply to the claim by or against the new party; or (b)the issue of whether those sections apply shall be determined at trial. (Rule 17.4 deals with other changes after the end of a relevant limitation period)