UK: Changing the Parties to Proceedings Following the Expiry of a Limitation Period

In a recent decision¹, the Court of Appeal has determined that, under certain circumstances, proceedings may be amended to change the identity of parties following the expiry of a statutory limitation period.

Mrs. Stedman had granted a Lease dated 12^th July 1991 to the Claimants. The premises were used as a school and the Lease enjoyed security of tenure pursuant to Part II of the Landlord and Tenant Act 1954 ("the 1954 Act"). Mrs Stedman died in August 1998 and following the expiry of the 12 year term of the Lease, the tenancy continued pursuant to Section 24(1) of the 1954 Act. Solicitors acting for the executors of Mrs. Stedman’s Will served a Notice pursuant to Section 25 of the 1954 Act dated 26^th March 2003. The Notice terminated the Claimants’ tenancy on 4^th October 2003. By a letter dated 28^th April 2003 the Executors’ solicitors informed the tenants that by a Transfer dated 23^rd April 2003 the freehold had been transferred by the Defendants to another party. On 25^th June 2003 the Claimants issued a Claim Form applying for a new tenancy under Section 29 of the 1954 Act. The Defendants were stated to be the Executors of Mrs. Stedman. The Executors objected to a new tenancy stating that they were not the competent landlord as defined by Section 44(1) of the 1954 Act. They asked the Claimants to confirm that the claim would be discontinued as they were the wrong Defendants.

Subsequently, on 15^th September 2003, the Claimants applied for an Order that the purchaser, Mrs. Purcell, be substituted for the Defendants because the Executors of Mrs. Stedman’s Will had been named in error as the Defendants. The Judge at first instance held that the period prescribed by the 1954 Act for the commencement of proceedings was "a relevant limitation period" within the meaning of Part 19.5 of the Civil Procedure Rules 1998. However, he determined that Part 19.5 was not engaged because the 1954 Act was not an enactment as defined by the Rule as it contains no provision allowing or disallowing the substitution or addition of parties.

The key issue in the case was whether the only enactments which fell within the Court Rule were those which expressly allowed a change of parties after the end of a relevant limitation period.

Prior to the coming into force of the reforms to the 1954 Act, on 1^st June 2003, Section 29(3) of the 1954 Act provided that no application for a new tenancy would be entertained unless it was made not less two nor more than four months after the giving of the Landlord’s Notice under Section 25 of the 1954 Act. Following the reforms the application must be made not later than the date for termination given in the Landlord’s Notice or the day before the date specified in the Tenant’s Section 26 Request.

Part 19.5 of the Civil Procedure Rules 1998 applies to a change of parties following the expiry of a period of limitation under the Limitation Act 1980, the Foreign Limitation Periods Act 1984 or any other enactment which allows such change, or under which a change is allowed. The Rule provides that the Court may add or substitute a party only if the relevant limitation period was current when the proceedings were started and the addition or substitution is necessary.

In order for it to be deemed necessary, the Court must be satisfied that:

• the addition or substitution of a party is to correct a mistake in the Claim Form
• the claim cannot be carried on by or against the original party without the addition or substitution

• the original party has died or been made bankrupt and his interest or liability has passed to the new party.

The Court of Appeal allowed the appeal finding that it was possible to apply an interpretation to Part 19.5 as referring to any enactment which allowed or did not prohibit the change of a party after the end of a relevant limitation period. The 1954 Act envisaged applications for a new tenancy but did not regulate the manner in which they might be made, except for stipulating the period in which those claims must be brought. However, from time to time Claimants applying for a new tenancy will, in practice, apply for permission to change the parties after the end of a limitation period. In the absence of a specific prohibition on the right of a party to apply for permission to substitute another party to the proceedings, the Court of Appeal found that such applications were allowed outside the limitation period as far as 1954 Act proceedings were concerned if the relevant limitation period was still running when the proceedings were commenced. As far as the question of mistake was concerned, this was clearly relevant as the Defendants must have understood that the Claimants were seeking a new tenancy from the party who was the competent landlord and that the Defendants were named by mistake.

The case establishes that a Court has jurisdiction to permit a tenant making an application for a new tenancy under the 1954 Act to amend his Claim Form after the statutory period for the making of an application had expired if he wishes to add or substitute a party to the proceedings. It also represents a practical application of the Civil Procedure Rules and illustrates the tendency of the Courts towards reasonableness when interpreting and applying Court Rules and statutory provisions.

© RadcliffesLeBrasseur

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