Substitution of Defendant

International Distillers and Vintners Ltd v J F Hillebrand (UK) Ltd and others (QBD TLR 25 January)

CPR rule 19.4 provides that after the end of a period of limitation the court may add or substitute a party only if (a) the relevant limitation period was current when the proceedings were started and (b) the addition or substitution is necessary. The additional substitution 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. CPR rule 17.4(3) provides ‘The court may allow an amendment to correct a mistake as to the name of the party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question’. Although rule 19.4 contains no formal requirement for the mistake to have been genuine or for the new defendant not to have been prejudicially misled, it could not be imagined that an application to substitute would succeed in the absence of a genuine mistake and without taking into account whether the defendant had been prejudicially misled. Consistent with the need to make the new rules simple and simply expressed, this was, perhaps, a simpler formula governing this particular type of application than there had been hitherto, but the matters which govern the actual decision of the court on any such application remain much as before.