Er, who?

“I was talking to what's his name, Fred, is it? The plumber, the one who talks all the time.” If you, and the person you are speaking to, know who you are talking about, the fact that the plumber’s name is Ted is almost immaterial. The courts are prepared to adopt the same level of understanding in litigation if one side gets it wrong in naming one or more of the parties.

Companies, firms and even individuals can and do change their names frequently. It is an easy process. A company has to pass a resolution changing its name and file the name change at Companies House. A firm can change its name at will, although it may need to register the new name under the Business Registration arrangements. An individual may alter his or her name, or the name he or she goes under, even without going to a magistrate under the Deed Poll rules. The reasons for businesses to change their names are many and various, for instance a corporate rebranding or a company takeover.

The name changes of a company can become frequent, and are not necessarily linked to fraud or avoiding creditors. They can be accompanied by assignments and transfers of assets to other companies in the same group. The result is that people can forget all the twists and turns; even lawyers can go wrong when it comes to issuing proceedings in the wrong name or against the wrong party.

This was the scenario in the Court of Appeal case of Morgan Est (Scotland) Ltd vs Hanson Concrete Products Ltd. Miller Civil Engineering (“Company A”) built a tunnel using pipes supplied to it by, and purchased from, Hanson Building Products. The piping was damaged and sections had to be removed and replaced at a cost of about £500,000. Company A had assigned its right to sue Hanson to Miller Civil Engineering Services, which later changed its name to Morgan Est (Scotland) Ltd (“Company B”). Company B issued a claim, almost six years later, against Hanson alleging breach of the supply contract. Company B had assigned the right to sue to Morgan Est plc (“Company C”). There were thus two blunders by Company B in its claim against Hanson: it wrongly asserted that Company B had contracted with Hanson, and overlooked the fact that it had transferred the rights to sue Hanson to Company C. This was compounded by the fact that by the time Company B applied to amend its claim, the six-year limitation period had arguably expired.

The Civil Procedure Rules give the court discretion to allow these types of amendment and add or substitute parties even after the expiry of the limitation period where there has been a genuine mistake, which was “not one which would cause reasonable doubt as to the identity of the party in question”.

Even lawyers can go wrong in issuing proceedings in the wrong name or against the wrong party

Over many years the courts have had to consider these problems. When the CPR were introduced in 1998, the court rules were altered and questions arose as to whether the basic approach had changed. The practice of “right description/ wrong name” was illustrated by the example of accidentally “using the dog’s name when talking to your wife about your son – she knows who you really mean”.

The old approach probably would have led to the amendments being granted, but the Court of Appeal adopted a more generous approach. Emphasis must now be given to the “overriding objective” in the CPR with its concentration on “doing justice”. If things can be put right, they should be. There was no prejudice to Hanson if the right parties were added: as the court said, “they are deprived of an unmeritorious defence arising solely from a blunder by the other side”.

The courts still retain a discretion: for example, where the party applying for the amendments has behaved badly or has deliberately for tactical reasons named the wrong party, permission to amend will often be refused. So if you are referring to your child or plumber, try to get the name right to be on the safe side.

Robert Akenhead QC is a barrister specialising in construction law at Atkin Chambers and joint editor of Building Law Reports