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Case No: B3/2000/0371/QBENI
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
Mr. Justice Morland
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:Tuesday 11 July 2000
B e f o r e :
LORD JUSTICE PETER GIBSON
LORD JUSTICE MAY
|
GREGSON
|
Claimant/Respondent
|
|
-
and -
|
|
|
CHANNEL
FOUR TELEVISION CORPORATION
|
Defendant/Appellant
|
- - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - -
Mr. Patrick Moloney Q.C. and Miss Catrin Evans (instructed by Messrs
Russell Jones and Walker of London for the Claimant/Respondent)
Mr. Michael Tugendhat Q.C. (instructed by Messrs D J Freeman of London
for the Defendant/Appellant)
Judgment
As Approved by the Court
Crown Copyright ©
MAY L.J.
1 David Gregson, the respondent to this appeal, issued a claim form on 23rd
June 1999 claiming damages for libel. The claim form misstated the name of the
defendant. It was issued within a few days of the expiry of a three year
limitation period. Mr Gregson's solicitors served the claim form on 22nd
October 1999, the last day of the four month period for service prescribed by
CPR rule 7.5(2). The defendant's solicitors promptly pointed out the mistake
in the name of the defendant. By application notice dated 5th November 1999,
the claimant applied for permission to correct the mistake and, if it were
necessary, for an extension of time for serving the amended claim form. On
21st December 1999, Morland J. acceded to the application. This is the
defendant's appeal against Morland J's order.
2 The court has to consider the application of, and the relationship between,
CPR rule 17.4(3) and rule 19.5(2) and (3) (as they are now numbered). Morland
J. decided that the application came within rule 17.4(3). He also decided that
the claim form had already been served on the defendants, and that therefore an
extension of time for its service was not necessary. The essential grounds of
appeal are that the claimant's application also had to come within rule 19.5.
An extension of time for service of the amended claim form was needed.
Permission to correct the mistake by substituting a new defendant for the
defendant named in the original claim form should be refused. Alternatively, a
necessary extension of time for serving the amended claim form on the
substituted defendant should be refused by analogy with rule 7.6(3), because
the claimant's conduct of the litigation should be seen as an abuse, and
because the effect of giving an extension would be to deprive the defendants of
an accrued limitation defence.
3 Morland J. refused permission to appeal. I gave permission on paper on 4th
April 2000. In doing so, I indicated that I was inclined to think that Morland
J. was correct to decide that the application came within rule 17.4(3) alone
and that accordingly the discretionary decision was obvious. If that was
correct, the appeal had no real prospect of success. On the other hand, I
considered that the appellant's abuse argument was fit for consideration by the
Court of Appeal.
4 The publications which are the subject of these proceedings were in a
television broadcast on Channel Four on 26th June 1996 and in an Internet
website published between about 26th June 1996 and 22nd October 1999. The
publisher of each of these was Channel Four Television Corporation. The name
of the defendant in the claim form as it was originally issued was by mistake
Channel Four Television Company Limited, a dormant wholly owned subsidiary of
Channel Four Television Corporation. No one was misled by the mistake, since
it was obvious that the intended defendant was the broadcaster of the programme
and the publisher of the website and not an inactive subsidiary.
5 The claimant is a policeman. The television broadcast on 26th June 1996
and the publication on the website concerned the death of Paula Gilfoyle and
the subsequent conviction of her husband, Eddie Gilfoyle, for her murder. The
claimant says that the television broadcast and the material on the website
referred to him and were defamatory of him. The meaning complained of is that,
in the course of the police investigation into the suspicious death of Paula
Gilfoyle, the claimant corruptly planted a vital piece of evidence and
improperly suppressed a potentially crucial statement from an alibi witness,
and thereby knowingly helped to bring about the wrongful conviction of Eddie
Gilfoyle for the murder of his wife; and that he was therefore guilty of
attempting to pervert the course of justice.
6 Eddie Gilfoyle was convicted of his wife's murder on 4th July 1993. On
23rd October 1993, representations were first made to the Home Office about the
safety of the conviction. On 22nd April 1994, disciplinary proceedings were
started against the claimant to consider an allegation that he had attempted to
pervert the course of justice in the investigation into the death of Paula
Gilfoyle by suppressing evidence that tended to show that Eddie Gilfoyle was
not guilty of an offence. Eddie Gilfoyle appealed against his conviction. His
appeal was dismissed by the Court of Appeal on the 20th October 1995. On 5th
February 1996, disciplinary charges were made against the claimant. The
claimant's evidence is that he was anxious to get the disciplinary matters
resolved and was chasing his solicitors to have the disciplinary case heard at
the earliest possible moment.
7 The television broadcast which is the subject of the present proceedings
was, as I have said, on 26th June 1996. At that time, the relevant limitation
period for a defamation claim was three years. The Defamation Act 1996 reduced
this period to one year for causes of action arising after 3rd September 1996,
subject to a discretionary extension of the time limit. On 17th July 1997,
Channel Four rebroadcast the 1996 programme. The primary limitation period for
this broadcast would be one year from that date. The claim form in these
proceedings issued on 23rd June 1999 did not complain of this rebroadcast.
8 On about 25th May 1998, the claimant was cleared of disciplinary charges.
He did not issue his claim form until more than a year later. He explains the
delay since the 1996 broadcast - almost three years - by saying, firstly, that
he was not able to contemplate taking defamation proceedings until the
disciplinary proceedings had been successfully resolved; and, secondly, that it
took time to arrange financial support from the Police Federation. The
defendants do not accept that this is the true explanation for the claimant's
delay.
9 The misnaming of the defendant in the claim form was a silly mistake by the
claimant's solicitors. The details of how this came about are not, I think,
material, since it is explicitly accepted by Mr Tugendhat Q.C. on behalf of the
defendants that it "was a mistake as to the name of a party, which was genuine
and not one which would cause reasonable doubt as to the identity of the party
in question." (see paragraph 12 of Mr Tugendhat's skeleton argument.)
10 The claim form was served on the 22nd October 1999 by a process server who
went to 124 Horseferry Road, London, SW1. In his affidavit, he described this
as the premises of Channel Four Television Co. Limited. It is in fact the
registered office of both Channel Four Television Corporation and its dormant
subsidiary. Apart from that technicality, it is no doubt in reality the
premises of Channel Four Television Corporation. The process server served the
claim form and other documents personally on Andrew Baxter, whom the process
server described as a Senior Business Advisor authorised to accept service of
documents on behalf of the Company Secretary. The uncontradicted evidence of
the claimant's solicitor is that Andrew Baxter is in fact employed by the
Corporation as a Senior Business Executive. In my view, this was personal
service on "a company or other corporation" under CPR rule 6.4(4). Mr Baxter
was a person holding a senior position within the Corporation and, if the point
were raised, the list of persons holding a senior position to be found in
paragraph 6.2(1) of the Part 6 Practice Direction is not exclusive. In my
judgment, Morland J. was correct to hold that this was service of the claim
form on Channel Four Television Corporation.
11 In reaching this conclusion, I take account of what Donaldson L.J. said in
Evans Constructions Co. Ltd v. Charrington [1983] 1 Q.B. 810 at 823C.
This was a decision under the former Rules of the Supreme Court. Donaldson
L.J. said that the incorrect naming of a respondent would not necessarily
affect service, but might well do so. He gave examples of possible mistakes
where the person to be served was a natural person. He said that, for
companies, the likelihood of the wrong person being served was greater. If
there was service by post addressed to the wrong member of a group of companies
at the registered office of each of the companies in the group, that would
inevitably lead to service on the wrong company rather than the intended
company. In the present appeal, the question arises under the Civil Procedure
Rules, which are a new procedural code with the overriding objective of
enabling the court to deal with cases justly. The court has to give effect to
this objective when it exercises any power given to it by the Rules and when it
interprets any Rule - see rule 1.2. The claim form in the present case was
served, not by post, but personally on Andrew Baxter, who was a person employed
by the Corporation in a senior position. No one was misled by the misnaming of
the defendant. As a matter of fact, this was, in my view, service on the
Corporation. The suggestion that the court should hold that it was not, on the
basis that Andrew Baxter might also be regarded as authorised to accept service
on behalf of the dormant subsidiary, is at best a technical quibble unrelated
to substantial justice.
12 CPR rule 17.4 applies where a party applies to amend his statement of case
in one of the ways mentioned in the rule and after a period of limitation has
expired under the Limitation Act 1980. Rule 17.4(3) provides:
"The court may allow an amendment to correct a mistake as to the name
of a party, but only where the mistake was genuine and not one that would cause
reasonable doubt as to the identity of the party in question."
13 As I have said, it is conceded on behalf of the defendants that the
misnaming of the defendant in the claim form was a genuine mistake as to the
name of a party and not one which would cause reasonable doubt as to the
identity of the party in question. Thus rule 17.4(3) applies. In substance,
the correct and intended party was named in the claim form but there was a
mistake as to the name. Morland J. was correct so to decide. That is quite
sufficient to enable the discretion which he exercised to be exercised. There
is no need to travel on to rule 19.5.
14 In deference, however, to Mr Tugendhat's submission, it is necessary to
look at the relationship between rule 17.4(3) and rule 19.5. Rule 19.5 applies
to a change of parties after the end of a limitation period. Rule 19.5(2)
provides:
"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.
15 Rule 19.5(3) relevantly provides that the addition or substitution of a
party is necessary only if the court is satisfied that the new party is to be
substituted for a party who was named in the claim form in mistake for the new
party. In the present case, the relevant limitation period was current when
the proceedings were started and there was a mistake as to the defendant's
name.
16 There were provisions in the former Rules of the Supreme Court providing
for cases where an application was made to correct a mistake in the name of a
party or to substitute a new party for one who had been joined by mistake. The
Civil Procedure Rules are a new procedural code and there is, in my view, no
basis for supposing that these new rules were intended to replicate, or for
that matter not to replicate, the former provisions. It is not generally
appropriate to refer to authorities decided under the former rules to determine
what the new rules mean or how they should be applied.
17 It is evident that rule 19.5 is made under and for the purposes of Section
35 of the Limitation Act 1980, which limits the circumstances in which a court
may allow by amendment a new claim. After the amendment, the new claim is
treated for limitation purposes as having been started on the date on which
the original action was started. For present purposes, a new claim includes
the addition or substitution of a new party. The section enables rules of
court to be made for allowing such a new claim upon conditions which are in
substance reproduced in rule 19.5. As Mr Tugendhat correctly submits, the
statute and rule 19.5 enable the court to make orders whose effect will be to
overcome a limitation defence which would be available to the defendant if the
order was not made.
18 Rule 19.5 applies where the application is to substitute a new party for a
party who was named in the claim form in mistake for the new party. By
contrast, rule 17.4(3) applies where the intended party was named in the claim
form but there was a genuine mistake as to the name of the party and no one was
misled. As Mr David Foskett Q.C., sitting as a Deputy High Court Judge, said
in International Distillers and Vintners Ltd v. Hillebrand and Others
(17th December 1999):
"Part 19.4 [now 19.5] deals with cases where the Claimant mistakenly names the
wrong party as Defendant. Part 17.4 deals with cases where the Claimant
misnames the Defendant."
19 Mr Foskett did not see any significant conflict between the two rules.
Neither do I. Mr Foskett also referred - but not so as to affect his
conclusion - to consideration of the relationship of these two rules by the
Civil Procedure Rule Committee, of which both he and I are members. For my
part, I have little immediate recollection of the Committee's intentions which
are, in my view, irrelevant to this court's interpretation of the rules now
that they have been made.
20 Mr Tugendhat submits that there are three possible kinds of mistake in
naming a party to litigation. Firstly, there may be a mistake as to identity.
A wrong party is named and it is necessary to substitute the right party. He
concedes that there was no mistake as to identity in this case. Secondly,
there may be a mistake as to the name where the name is not the correct name of
the intended defendant, nor is the name of any other person. Thirdly, there
may be a mistake as to the name where the mistaken name is the name of some
other person. He submits that the present case is an example of the third of
these, not the second, since Channel Four Television Company Limited is the
name of a company, although a dormant one. Mr Tugendhat then submits that,
since a wrong person was originally named in the claim form, it is necessary to
substitute the correct person and rule 19.5 applies. I accept that it is
possible in the abstract to identify the three kinds of mistake to which Mr
Tugendhat refers. But I do not accept that every case in Mr Tugendhat's third
category comes within rule 19.5 to the exclusion of rule 17.4(3). For the
reasons which I have already given, in my judgment on the facts of the present
case the mistake was one to which rule 17.4(3) applies and to which rule 19.5
does not apply. The correct and intended party was named in the claim form,
but there was a mistake as to the name. There is no requirement to substitute
a new party. In the light of the overriding objective of the CPR, rule 17.4(3)
is not to be interpreted in so rigid a way that it would produce a result that
was neither sensible nor, on the facts of the case, just.
21 Mr Tugendhat's struggle to squeeze this case into rule 19.5 and out of rule
17.4(3) had two purposes. Firstly, if it were necessary to substitute a new
party, the claim form would have to be served on the new party and an extension
of time would be necessary for that purpose. Rule 7.6(3) would, it is
suggested, apply and the court could not, or would not, give the necessary
extension. Secondly, Mr Tugendhat submits that under rule 19.5 the court's
discretion whether to allow the substitution or not would extend to a general
consideration of the claimant's conduct of the proceedings, and particularly
what Mr Tugendhat submits should be seen as intentional and abusive delay in
bringing and progressing them. The effect of the conduct and delay was to
provide the defendants with a limitation defence which the court should not
take away.
22 Since, as I consider, the application is not one to which rule 19.5
applies, this court does not need to reach a decision on these two submissions,
but I will briefly consider them. It is convenient to take the second of them
first. Mr Gregson began these proceedings very shortly before the expiry of
the three year limitation period applicable to the 1996 broadcast. Mr
Tugendhat submits that it should be regarded as an abuse to delay bringing
proceedings to the very last moment when there is no proper reason for doing
so. This applies particularly to defamation claims whose main purpose is the
vindication of a person's reputation. For this and other reasons, the
statutory limitation period for these claims has been reduced to one year. He
submits that, not only has Mr Gregson been warehousing his claim, but that his
explanation for the delay should be seen as disingenuous. The court is invited
to conclude that Mr Gregson made a deliberate decision to delay bringing libel
proceedings to the very last moment, and that a reason for this was that Eddie
Gilfoyle's murder conviction was again being referred to the Court of Appeal by
the Criminal Cases Review Commission. The review is expected to be heard later
this year. It is suggested that Mr Gregson wanted to delay as long as possible
the risk of having to give evidence in the libel proceedings in the light of
his potential continued involvement in the criminal appeal. The time came,
however, when he had to make up his mind in October 1999 whether to abandon the
libel proceedings. He in fact chose to keep them alive by serving the claim
form at the very last moment. No letter of complaint was written before the
claim form was issued or served. None of the steps which may be expected to
feature in a pre-action protocol were taken.
23 If it were necessary to make a decision on this point, I would not be
persuaded to draw the inferences adverse to Mr Gregson which Mr Tugendhat
suggests. There seems to me to be no proper or sufficient basis on the
evidence before the court to reject Mr Gregson's explanations for why the
proceedings were delayed as long as they were. Nor do I consider that this was
warehousing a claim in the sense in which that phrase was used in cases decided
under the former Rules of the Supreme Court. That expression referred to not
progressing a claim once it had been started, not to the mere fact of
refraining from starting proceedings until near the end of the limitation
period. It remains the case that a party is entitled to start proceedings
within, but towards the end of, a statutory limitation period. On the other
hand, it is clear that the overriding objective of the CPR requires all
litigants, especially those who have delayed starting the proceedings, to
progress the litigation with all proper speed. If they do not, and if,
further, they need the court's permission to substitute or add a new party,
delay will be a relevant consideration in the exercise of the court's
discretion. The fact that an application may be made after the four month
period for serving the claim form has expired may be a relevant circumstance
but would not, I think, necessarily be determinative. Generally speaking,
there are no abstract circumstances in which the court necessarily will, or
will not, allow the addition or substitution of a new party. It depends on the
circumstances and justice of a particular case. This necessarily includes
consideration of statutory limitation provisions, since the premise of rule
19.5 is that the application is made after a limitation period has expired.
24 If, in all the circumstances, the court decides to allow a new party to be
added or substituted, I do not presently consider that a consequential order
for the service of the claim form on the new party has to be rigidly confined
by rule 7.6(3). I say this for three reasons. Firstly, until the court has
permitted the new party to be added or substituted, there was no question of
that party being served simply because, until then, they were not a party. It
is not, therefore, a question of extending time for serving the claim form, but
of giving directions as to its service. Secondly, the sense of my first reason
is recognised in paragraph 3.2 of the Part 19 Practice Direction, by which the
court may direct the amended claim form to be served on the new defendant.
Thirdly, if considerations such as those referred to in rule 7.6(3) are
relevant to a particular application, they will come into play when the court
decides whether or not to allow the new party to be added or substituted. If,
having taken those considerations into account, the court decides to allow the
addition or substitution, it would make no sense if the order were ineffective
because the amended claim form could not be served.
25 Rule 17.4(3) also gives the court a discretion. There may possibly be
cases in which, although the conditions of rule 17.4(3) are fulfilled, the
court might exercise its discretion not to permit the mistaken name to be
corrected. But I accept Mr Moloney's submission that, since the mistake has to
be genuine and not one which would cause reasonable doubt as to the identity of
the party in question, it is rather difficult to think of circumstances in
which the discretion would be exercised against allowing the amendment. After
all, the right party has been named in the claim form and no one has been
misled. In the present case, the order would not deprive the defendants of a
limitation defence, since, on the facts, the claim form was issued within the
limitation period and served on the correct defendants within the 4 month
period provided by the rules. I have no doubt but that Morland J. came to the
right discretionary conclusion in this case. As he said:
"It would, in my judgment, be a gross miscarriage of justice if this trivial
error between "Corporation" and "Company Limited" were to have a quite huge
adventitious advantage to the defendant and a corresponding huge disadvantage
to the claimant."
If the mistake had not been made, and notwithstanding Mr Gregson's delay in
starting the proceedings, an application by the defendants in early November
1999 to strike the proceedings out as an abuse would have had no proper basis
whatever. It would simply be that Mr Gregson had started his proceedings
within the limitation period and served them within the four month period
allowed by the rules. Granted that a litigant in his position is obliged to
progress his proceedings with all due expedition, abuse in this context would
have to depend in the first instance on his conduct of the proceedings once
they are started.
26 For these reasons I would dismiss this appeal.
Peter Gibson L.J.:
27 The Civil Procedure Rules recognise that after a period of limitation has
expired justice may be frustrated unless a mistake relating to the naming of a
party is corrected in two distinct sets of circumstances.
28 One set of circumstances is that addressed in r. 17.4 (3). There must
be:
(i) a mistake as to the name of a party,
(ii) the mistake must be genuine, and
(iii) the mistake must not be one which could cause reasonable doubt as to the
identity of the party in question.
The correction which the court is given a discretion to make is the amendment
of the statement of case by correcting the name.
29 The second set of circumstances is that addressed by r. 19.5(3). (Although
at the end of r. 17.4 it is stated "(Rule 19.4 specifies the circumstances in
which the court may allow a new party to be added or substituted after the end
of a relevant limitation period)", the reference to r. 19.4 would appear to be
in error for r. 19.5.) The circumstances are that a party has been named in
the claim form in mistake for another person. Nothing more is said about the
mistake, but it is clear from the rule as a whole that the relevant mistake is
one necessitating a change of parties. By comparison and contrast with r. 17.4
(3) that mistake is not a mere mistake as to a name such as causes no
reasonable doubt as to the identity of the party in question but is something
more fundamental which can only be cured if a new party is substituted.
30 The circumstances of the present case are a good example of the type of
mistake to which r. 17.4 (3) was intended to apply. It was obvious from the
proceedings served that the intended defendant was the person responsible for
broadcasting the programme and operating the website and that they were not
intended to be served on a long dormant subsidiary of Channel Four Television
Corporation. As was stated in the Corporation's skeleton argument for the
court below and repeated in the skeleton argument for this court:
"It is accepted that this was a mistake as to the name of a party, which was
genuine and not one which could cause reasonable doubt as to the identity of
the party in question."
31 By reason of that concession, therefore, the judge had a discretion under
r. 17.4(3) which he chose to exercise, thereby correcting the mistake as to the
name. The person intended, and understood by the Corporation to have been
intended, as the Defendant continues to be the Defendant but with the name
corrected. It is no different from the correction of a spelling mistake in the
name.
32 But it is submitted by Mr. Tugendhat Q.C. in his closely reasoned argument
that where there is a mistake as to the name of a party, not being a mistake as
to identity, the mistaken name given may either be the name of no other
existing person or the name of an existing person. In the latter case, he
argued, it is necessary to apply for substitution under r. 19.5. I do not know
how the court would ever know that there was no other existing person, natural
or corporate, of the mistaken name somewhere and in practical terms it may be
that, if Mr. Tugendhat's submissions were correct, the court would always have
to go to r. 19.5 where there was a mistake as to a name. But I can see no
justification in the rules for his submission. On the contrary, it seems to me
inconsistent with the scheme of the rules and the distinction between r.
17.4(3) and r. 19.5 to which I have referred.
33 I do not find assistance from a comparison between the new rules and the
Rules of the Supreme Court and the cases decided thereunder. We can and should
decide this case on the new rules, interpreting both r. 17.4 and r. 19.5 having
regard to the overriding objective. The judge, in my view, dealt with the case
justly under r. 17.4(3) by correcting the erroneous name. For these as well as
the reasons given by May L.J. I would dismiss this appeal.
Order: Appeal dismissed. By consent Respondent's costs agreed.
(Order does not form part of approved judgment.)
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