Cunningham v Albany Construction Company Ltd

J U D G M E N T

1. LORD JUSTICE DYSON: This application was listed for 10 o'clock this morning. It is now 2 o'clock. The applicant has not appeared, nor has he communicated with the court to indicate that he had any difficulties about appearing. In my view this application should be dismissed. But it seems appropriate to indicate shortly why, in any event, I am of the view that there is no merit in this application and that it should be for that reason as well.

2. This is an application for permission to appeal against the order of HHJ Kay QC of the 3 December 2004, whereby the applicant's appeal against the order of District Judge Eynon of 3 June 2004 was dismissed. It is therefore a second appeal.

3. The proceedings arise out of a contract to build a boundary wall between the appellant's land and adjacent land partly owned by Albany Properties (Enfield) Limited ("Properties"), and partly owned by a sister company, Albany Construction Limited ("Construction"). The claim was for the balance of the purchase price for the building of the wall. The claim form was issued in the name of a company called Albany Construction (Enfield) Limited ("Enfield"). There is no such company, nor, so far as I am aware, has there ever been such a company.

4. Enfield purported to obtain a judgment in default of defence in November 2003. An application to set aside the judgment was made. On 19 March 2004, prior to the hearing of that application, the solicitor acting for Mr Cunningham made a witness statement in which he said that Enfield did not exist. Construction then issued an application for its substitution as claimant, for service of an amended claim form and particulars of claim to be dispensed with.

5. On 24 March 2004, District Judge Eynon struck out Construction's application. On 30 March, Construction issued a second application for its substitution for Enfield. This came before District Judge Eynon on 3 June 2004. The district judge permitted the substitution. Mr Cunningham appealed that decision and that appeal was, as I have said, dismissed on 3 December.

6. In short, the argument being advanced on behalf of the appellant was that there had been no good service as the claimant had been served by a non-existent entity; that because there had been no good service, there was no jurisdiction to amend the form; and the four-month time period for service had expired and could not be the subject of an extension of time: see CPR 7.6. In a word, therefore, it was submitted that it would be wrong or, alternatively, futile to exercise the discretion given by CPR 19.4 to substitute Construction for Enfield because it would not be possible to serve the claim form after the expiry of the four-month period.

7. The judge rejected that argument and considered that, despite the obvious mistake as to the naming of the claimant in the claim form, it was clear that the intended claimant was Construction. The defendant had suffered no prejudice as a result of this obvious mistake and the judge could see no reason why the defendant did not simply accept that the proceedings should continue in the name of Construction. There was no limitation point.

8. In my judgment, the judge reached the right conclusion, although I would not express it in quite those terms. It seems to me that the relevant authority is the decision of this court in Fielding v Rigby [1993] 1 WLR 1355 at 1359, where Sir Thomas Bingham MR referred to a decision of the House of Lords in Lazard Bank v Midland Bank Ltd [1933] AC 289, and in particular some dicta of Lord Wright, which stated that:

"... a judgment must be set aside and declared a nullity by the court in the exercise of its inherent jurisdiction if and as soon as it appears to the court that the person named as the judgment debtor was at all material times at the date of writ and subsequently non-existent."

9. That decision was distinguished by the Court of Appeal in Fielding v Rigby on the grounds that, in that case, there was at all material times a party in whom the cause of action was vested. Elaborating on that distinction, the Master of the Rolls said that:

"... the cause of action was vested in Mr Fielding when the writ was issued and there has never been a stage at which the cause of action has not been vested in a living and existing party. The defect which did take place was that, at the date of service, the name of the action had not been amended so as to show the plaintiff as the party upon whom the right of action of the deceased had devolved.

That, as it seems to me, is an irregularity which is well within the powers of the court to make good under RSC, Ord 2, r 1(2). In other words there was, I think, a departure from the correct procedure in this case, but not one which went to the root of the proceedings so as to render them a nullity, simply an irregularity which is well within the powers of the court to rectify."

10. It is true that the present proceedings are governed by the CPR, but it seems to me that the principle stated in Fielding v Rigby applies with equal force to the present situation. The proceedings were not a nullity. There was merely an irregularity which it is open to the court to correct under a combination of CPR rules 3.10 and rule 19.4.

11. In my judgment, there is no substance in this application and I would refuse it on the merits as well as on the grounds that the applicant has not appeared to present it.

12. LORD JUSTICE WALLER: I agree.

Order: application refused