Parkinson Engineering Services Plc v Swan & Anor

This appeal raises again the scope of the court’s power to permit an amendment as regards parties outside a limitation period. The amendment in this instance was to substitute one claimant in place of another, namely the liquidator of a company instead of the company itself. The principles are well established. The difficulty is in applying them to a new situation. The resolution of the appeal was assisted not only by the clear and economical presentation of their arguments, in writing and orally, by both Counsel, but also by the exemplary preparation of the bundles, especially that containing the authorities relied on.

Parkinson Engineering Services plc was the subject of an administration order on 7 May 2003, made by Laddie J. The defendants were appointed as joint administrators. The purposes for which the order was made were (a) the survival of the company and the whole or part of its undertaking as a going concern (b) the approval of a voluntary arrangement and (c) a more advantageous realisation of the company’s assets than would be effected on a winding-up. On 14 November 2003 Park J discharged the administration order and ordered that the company be wound up. Under that order the administrators were to be released from liability under section 20 of the Insolvency Act 1986 with effect from 13 February 2004 except in relation to claims against them notified to them in writing by then.

The liquidator of the company is Mr Abdulali. On 17 April 2009 he caused the company to issue proceedings in the Chancery Division against the defendants, claiming damages for negligence in the performance of their duties as administrators, amounting to £1,968,780. By their Defence, served on 19 May 2009, the defendants pleaded, among other things, that the claim was barred by the effect of the statutory release under section 20 of the Insolvency Act 1986.

In order to overcome this plea, the liquidator then applied on 3 June 2009 for an order permitting the amendment of the existing proceedings by substituting himself as claimant, and an order under section 212 of the Insolvency Act 1986 permitting him to proceed against the defendants despite their release, and other relief. That application came before Floyd J on 12 June 2009. In substance he acceded to it, but he granted permission to appeal to the defendants. This is their appeal.

Section 35 of the Limitation Act 1980 deals with the effect of limitation as regards new claims in existing proceedings. By section 35(2), the liquidator’s claim under section 212 is a new claim, because it involves the addition or substitution of a new party. If it is permitted to proceed by way of an amendment of the existing proceedings, it is deemed to have been commenced on the same date as the original proceedings: section 35(1). For that reason, no limitation defence would be available, whereas if the liquidator had started fresh proceedings in June 2009, any claim based on breaches of duty committed before the corresponding date in June 2003 would be barred by limitation. Section 35(3) precludes the making of a new claim in such circumstances, unless permitted by section 33 (not now relevant) or by rules of court. By section 35(4) rules of court may allow a new claim to be made but only if conditions laid down in subsection (5) are satisfied.

The relevant condition is in section 35(5)(b):

“in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.”

In turn, subsection (6) provides (as relevant to this case) that the addition or substitution shall not be regarded as necessary for the determination of the original action unless “any claim already made in the original action cannot be maintained by or against an existing party unless the new party is joined or substituted as plaintiff or defendant in that action”. A determination of the original claim means its determination on the merits, however they may be found to be at trial.

The relevant rule of court is now CPR rule 19.5, of which the relevant provisions, paragraphs (2) and (3), are as follows:

“(2)

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.

(3)

The addition or substitution of a party 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.”

The text is not quite the same as that of the section, but the rule must be construed as being no wider than is permitted by the section. The effect, on the facts of this case, is that paragraph (3)(b) has to be satisfied, it being shown “that the claim cannot properly be carried on by or against the original party” without the substitution.

Mr Hough’s main point for the appellants can be put quite succinctly. He argued that the circumstances do not satisfy this test, or that in the section, because the original claim cannot be successfully maintained at all. It is doomed because of the statutory defence under section 20.

Mr Shaw’s principal response to this is based on the proposition that, although a proceeding under section 212 is distinct in a number of respects, it nevertheless asserts exactly the same cause of action as was set up in the original proceedings, and it is therefore the same claim, albeit made by a different claimant. Section 212(1) to (4) reads as follows:

“(1)

This section applies if in the course of the winding up of a company it appears that a person who –

(a)

is or has been an officer of the company,

(b)

has acted as liquidator, administrator or administrative receiver of the company, or

(c)

not being a person falling within paragraph (a) or (b), is or has been concerned, or has taken part, in the promotion, formation or management of the company,

has misapplied or retained, or become accountable for, any money or other property of the company, or been guilty of any misfeasance or breach of any fiduciary or other duty in relation to the company.

(2)

The reference in subsection (1) to any misfeasance or breach of any fiduciary or other duty in relation to the company includes, in the case of a person who has acted as liquidator or administrator of the company, any misfeasance or breach of any fiduciary or other duty in connection with the carrying out of his functions as liquidator or administrator of the company.

(3)

The court may, on the application of the official receiver or the liquidator, or of any creditor or contributory, examine into the conduct of the person falling within subsection (1) and compel him –

(a)

to repay, restore or account for the money or property or any part of it, with interest at such rate as the court thinks just, or

(b)

to contribute such sum to the company’s assets by way of compensation in respect of the misfeasance or breach of fiduciary or other duty as the court thinks just.

(4)

The power to make an application under subsection (3) in relation to a person who has acted as liquidator or administrator of the company is not exercisable, except with the leave of the court, after that person has had his release.”

Mr Shaw referred us to Re Eurocruit Europe Ltd [2007] EWHC 1433, a decision of Blackburne J. In that case the question was whether proceedings under section 212 brought by the liquidator against a former director of the company were barred by limitation, having been brought just within 6 years after the resolution for creditors’ voluntary liquidation, but more than 6 years after the last date on which any breach of duty relied on was alleged to have been committed. The judge held that the cause of action accrued on the date of the breaches, not when the company went into liquidation, so that the claim was brought too late. The judge said at paragraph 24:

“In my judgment, Mr Wilson’s submissions [for the liquidator] on this point do not pay sufficient regard to the significance of the fact, made clear by the authorities, that section 212 is procedural in nature. The true significance of that fact is that the section merely provides an alternative means, in terms of procedure, of enabling the company, to which the defaulting director’s duty was owed, to obtain recompense from the director for his breach of duty. If the liquidator chooses to name himself as the formal claimant in lieu of the company, his claim is by application, or (as appropriate) originating application, in the liquidation rather than by a claim form under CPR Part 7. The procedure is not available if it is intended to make someone other than a director (or other person falling within section 212) liable for the wrong to the company, for example a claim against a non-director (along with a director) for having conspired to harm the company; in such a case or where other claims not within section 212 are brought against a director, for example a straightforward claim in debt, the claim must be brought by the company. In each case, however, in substance the claimant is the company; the relief which is granted under section 212(3) is for the repayment, restoration or accounting (to the company) of the money or property of the company or for a contribution to be made “to the company’s assets by way of compensation” for the wrong in question. ... there is only a single cause of action, that of the company. All that section 212 does is give to the liquidator, if he wishes, the right to bring the claim in his own name.”

There is no doubt that the claim which the liquidator seeks to assert under section 212 is identical to that which he put forward in the name of the company by the original proceedings. The proposed amendments include no change to the allegations of duty, breach or loss. References to the company are substituted for the word “Claimant”, and reference to section 212 is added to the text as regards relief. Otherwise there is no change.

So Mr Shaw contended that the claim is one which can be maintained or carried on if, but only if, the liquidator is substituted for the company as claimant, so as to proceed under section 212. He accepted that leave to proceed was required under section 212(4) but, subject to that, he argued that the case was well within section 35 and CPR rule 19.5.

Mr Hough argued that the appeal should be allowed on three grounds. The first is that the substitution was not permitted by the Act and the rules, in support of which he argued that the section 212 claim was fundamentally different from the existing proceedings. The second was that leave should not have been given to bring proceedings under section 212(4), not least because the claim disclosed was not sufficiently arguable, and because of delay by the liquidator. The third was that leave should not have been given to bring the section 212 proceedings retrospectively. As to that, it is common ground that permission could not be, and was not, given to bring proceedings with effect from an earlier date than that on which they are issued. The retrospective effect arises under section 35, so this depends on the first ground of appeal. I can therefore consider the points under two headings: first whether the amendment was possible at all, and secondly whether the judge acted properly in exercising the discretion (a) to grant leave under section 212 and (if he had it) (b) to allow the substitution.

The starting point under the Act and the rule, as Mr Hough put it, is whether the substitution is necessary for the determination of the original proceedings or, in other words, whether the original claim could not be maintained or properly carried on without the substitution. It must be necessary for the maintenance of the existing action, not for the assertion of a new action. He contended that if any significant modification to the claim was necessary, the test would not be satisfied. It was not enough to show a claim against the same defendant based on the same cause of action; it must be the same claim, with no need to recast either the cause of action or the facts relied on. On the present facts he argued that the substitution did not meet those requirements; it was needed in order to assert a different claim, not to maintain the existing claim.

Mr Hough showed us a number of cases in which this power has been considered. In Merrett v Babb [2001] EWCA Civ 214 the claimant and her mother together bought a freehold property with an advance from a building society secured by a mortgage, the valuation necessary for the loan having been made by the defendant valuer. The claimant alone brought proceedings against the defendant claiming damages for negligence in relation to the valuation. The claim was brought within the limitation period, but the issue arose later (after that period had expired) whether the defendant was liable for damages in respect of only the claimant’s beneficial interest in the property, or as to the whole. The Court of Appeal held that, because the claim asserted was for the full amount of the loss, which had to be understood, on the facts, as a joint claim in respect of the loss suffered by both purchasers, the addition of the mother as claimant was necessary for the claim to be maintained or properly carried on. It would have been otherwise if the original claim had been merely for the claimant’s own loss.

A different situation, as regards adding a defendant, arose in Martin v Kaisary [2005] EWCA Civ 594, where the claimant had originally sued a surgeon for negligence and wished to add the hospital as an additional defendant as being responsible for the negligence of its employed staff (which did not include the surgeon). It was held that this addition was not necessary for the maintenance or carrying on of the original claim. A claim in respect of negligence on the part of the hospital staff would have been a different claim which had not been made.

Another variant, on remarkable facts, came before Sedley LJ and myself, with Hallett LJ, in Weston v Gribben [2006] EWCA Civ 1425. In a sense this was a converse of Merrett v Babb. Mr Weston had sued the Foreign and Commonwealth Office for negligence based on the alleged loss of a two thirds beneficial interest in a property whose legal owner was a company known as Grass. The judge below had struck this claim out on the basis that no duty of care was owed to Mr Weston, and this was not challenged on appeal. However the judge had ordered that Grass be substituted, but only so as to help Mr Weston assert his claim to the loss of his beneficial interest, not to assert its own loss of the whole beneficial interest. Mr Weston appealed against this limitation on the basis on which Grass was joined. That required the court to consider the provisions of section 35(6)(a) and rule 19.5(3)(a) which concern substitution in cases of mistake. In that context we looked at the test to be applied to decide whether the claimant or (more usually) the defendant has been named by mistake, and we made some observations about identifying the “claim made in the original action” as mentioned in section 35(6)(a). Although this arose in the different context of mistake as to the party, the use of the phrase “any claim [already] made in the original action” in each paragraph of section 35(6) suggests that it should mean the same in both paragraphs. The use of the word “already” in paragraph (b), absent from paragraph (a), does not seem to make a difference. We suggested at paragraph 41 that a convenient working test might be to ask whether you can change the identity of the relevant party without significantly changing the claim. We held that Grass could not properly be joined as claimant.

The suggested working test did not survive for long. In Adelson v Associated Newspapers Ltd [2007] EWCA Civ 701 the Court of Appeal held that an earlier decision which we followed had been wrong to reject the test set out in a yet earlier Court of Appeal decision, The Sardinia Sulcis [1991] 1 Lloyd’s Rep 201, where Lloyd LJ (as Lord Lloyd of Berwick then was) said:

“Thus if, in the case of an intended defendant, the plaintiff gets the right description but the wrong name, there is unlikely to be any doubt as to the identity of the person intended to be sued. But if he gets the wrong description, it will be otherwise.”

He applied the same principle to the actual case where the mistake was as to the name of the plaintiff, because of an assignment of the original ship owner’s interest. Mr Hough relied in particular on the Adelson case for the observation at paragraph 63:

“In principle we can see no reason why permission should not be given both to substitute a claimant under CPR rule 19.5 and to add new claims that fall within CPR rule 17.4(3). What is not permissible, however, is to rely on the new claims in order to assist in demonstrating that the action has been brought in the name of the wrong party.”

Mr Hough submitted that what the liquidator sought to do in the present case was analogous to what the Court of Appeal ruled out in that passage.

Most recently, in Roberts v Gill & Co [2008] EWCA Civ 803, the claimant started proceedings in his capacity as a beneficiary of a deceased’s estate claiming damages against firms of solicitors who had advised the personal representatives of the estate. After the limitation period had expired he sought to amend the claim so as to proceed on behalf of the estate as well, by way of a derivative action but without, initially, proposing the addition of the personal representatives as parties. The Court of Appeal held that it was necessary that the personal representatives should be parties and that therefore rule 19.5 had to be satisfied as regards the addition of the new parties. It could not be satisfied, however, because there was no obstacle to the claimant pursuing his existing personal claim, which was not defective for want of parties. The court rejected an argument on behalf of the claimant that it should apply the test of necessity immediately after having permitted him to add a different capacity, namely a representative capacity, to the personal capacity in which he had originally sued, at which stage he could say that the addition of the personal representatives was necessary. Arden LJ said at paragraph 36:

“It would be contrary to principle for the court to grant permission to amend the claim merely to reflect a change in capacity as that would not enable the claimant to proceed to judgment.”

So, Mr Hough submitted, it would equally be contrary to principle to grant permission to amend the existing proceedings so as to substitute the liquidator as claimant simply in order to get over the limitation defence which would otherwise defeat part of his section 212 claim, if that were brought by way of new proceedings, rather than in combination with the existing proceedings.

He further contended that significant change would be needed to the existing claim in order to bring it within section 212. He accepted, inevitably, that it would assert the same cause of action, but he pointed out that the existing proceedings were doomed to defeat, and that a claim under section 212 is a different procedural entity. It should be brought in the Companies Court, not the Chancery Division, and by originating application rather than by a Part 7 Claim Form, and the rules as regards quantum of relief are different. Above all, it requires leave under section 212(4). He also pointed out that proceedings under the section can only be brought by certain classes of person, only against a limited range of defendants, and not in respect of all types of claim, though he accepted that success on the part of any claimant under the section would be for the benefit of the company’s assets.

The distinctive feature of the present case is that, on the one hand, the original proceedings cannot succeed but, on the other, subject to getting leave under section 212(4) the liquidator can assert exactly the same cause of action, on behalf of the company, and can thereby overcome the defence under section 20 to the company’s own proceedings. It is therefore a case in which, if the court thinks it appropriate to give permission under the section, the cause of action of the company, which would otherwise be defeated, can be asserted against the same defendant relying on exactly the same facts. Section 212 clearly contemplates a situation such as the present, where a claim in the name of a company would fail because of section 20, but the same claim, on behalf of the company but in the name of the liquidator, can be asserted despite the release, if the court thinks fit to allow it.

Of course, section 212 has nothing to say about limitation defences, and the grant of permission by itself would only authorise proceedings which would be brought for the first time, which may or may not be subject to a limitation defence. If permission is given under section 212, and if it is open to the court to permit substitution under rule 19.5, it remains a matter of discretion as to whether the court should permit it, with the retrospective effect provided for by section 35(1).

However, on the question of jurisdiction, whether it is open to the court to permit the substitution, it seems to me that this is a case in which the substitution is necessary in terms of section 35(5)(b) as well as of CPR rule 19.5(3)(b). The original action, asserting the company’s claim against the former administrators, cannot be determined without the substitution of the liquidator whereas if brought by the liquidator under section 212 it can. Without that substitution it could only, and would be bound to be, determined in favour of the defendants because of the section 20 defence. The claim would be struck out, because of that defence, and it could not be decided on its merits, either way, as the proceedings stand. In terms of the rule, it cannot properly be carried on by the original party, the company, whereas it can be maintained and carried on if the liquidator is substituted. No more than minimal change is necessary to the statement of case: substitution of references to the liquidator as claimant and references to the company in the third rather than the first person, so to speak, together with consequential changes as regards the relief sought. It is the same claim, in every respect, despite the fact that it is asserted by the liquidator on behalf of the company, rather than in the name of the company itself.

It is true that proceedings under section 212 would normally be brought in the Companies Court rather than in the Chancery Division, and would be commenced by an application, or an originating application, not by a Part 7 Claim Form. The latter is a difference without any significance at all, because in a case of this kind statements of case would certainly be directed in proceedings under section 212. Nor is there any substance in the point as to forum. Proceedings under the section might well be directed to proceed in the Chancery Division if, for example, they were related to Chancery proceedings against a defendant who is not within the scope of the section, or for relief not permitted by the section. The only practical difference is as to the identity of the judge who will deal with procedural matters; is it to be a Master of the Chancery Division or a Registrar of the Companies Court? The fact that the rules as to quantum of compensation are different from those that would apply at large is not a valid distinction, since the rules under the section are, if anything, likely to be more favourable to the defendant.

So far as other objections are concerned, I do not regard what was said at paragraph 63 of Adelson or Arden LJ’s observations in paragraph 36 of Roberts v Gill & Co as pertinent to the present case. Every issue of discretion has to be considered separately, but the relevant difference between this case and what was said in each of those others is that here the new proceedings would assert the identical claim to that which is made in the existing proceedings. Mr Hough submitted that these observations show that it is not open to the court to grant permission under rule 19.5 if it is also necessary for the applicant to obtain the court’s permission in some other respect. That cannot be right as a general proposition. For example, it might be necessary to join as an additional defendant a company in liquidation, for which the court’s permission would be required under section 130 of the Insolvency Act 1986. So long as it is possible and appropriate to grant whatever other permission is needed, having regard to the terms of the relevant legislation (and without making any prior assumption as to how the discretion under rule 19.5 would be exercised, if it arises), then I see no reason in principle why the need for the other permission should be conclusive against the availability of the power under rule 19.5.

For those reasons, with the benefit of more time to receive argument and to reflect on the decision than was available to the judge, who gave an extempore judgment on what, I assume, was a day when he was hearing all and sundry interim applications before the Chancery Division, I have come to the same conclusion as he did, namely that the substitution was necessary because the original claim could not properly be carried on without it.

On the basis that the first ground of appeal fails, and the judge did have power to permit the substitution, Mr Hough then argued that he should not have done so, because he should not have granted permission under section 212(4) and he should also not have permitted the amendment under rule 19.5.

In this respect he faced the challenge that always arises on an appeal against the exercise by a judge of his discretion, of showing a misdirection or other error of law. He relied on several factors. One was the passage of time: over 4 years had gone by after the statutory release before the first letter before action, in September 2008, with no explanation for the delay. The proceedings were in the wrong forum, in the wrong form, brought by the wrong claimant and sought the wrong relief, again with no explanation for these errors. As regards the discretion under section 212, although he accepted that it was relevant to consider whatever intrinsic merit the claim might appear to have, he argued that the delay and the reasons (or absence of explanation) for it were also relevant. He also argued that the statement of case did not show a cogent claim against the defendants and, again, that the staleness of the claim was relevant. He submitted that the use of the application under rule 19.5 to circumvent the limitation defence was a factor pointing toward a refusal of permission, especially in the absence of any explanation for the delay.

The judge started by considering whether it would be appropriate to allow proceedings under section 212. It seems to me that this was the correct starting point. He had seen (as we did) the decision of Hart J in Brown v Beat [2002] BPIR 421, where the judge, considering the corresponding provision as regards bankruptcy, identified two criteria: whether or not a reasonably meritorious cause of action has been shown, and whether giving permission for its prosecution is reasonably likely to result in a benefit to the estate. Those are not exhaustive but they are certainly relevant and likely to be among the most important factors. They are relevant here, together with the question of delay.

At paragraph 6 of his judgment as transcribed Floyd J said:

“… I think that this is a case in which a reasonable litigant could be said to be justified in bringing litigation. Mr Hough … said that I should also take into account the delay in bringing these proceedings in the absence of any real explanation for that delay. I have taken that factor into consideration, but in the end it has not persuaded me this is not an appropriate case for the court to grant permission.”

Those are his reasons in relation to section 212. They are shortly expressed. Another judge might have come to a different conclusion, or might have said more about one factor or another. There is force in Mr Hough’s criticisms of the statement of case as not obviously very cogent, and in his comment as to the absence of explanation for the delay. However, it does not seem to me that this court would be justified in interfering with the judge’s exercise of the discretion under the section. The decision was not one which no reasonable judge could have come to, and although the reasoning is brief, it cannot be said that the judge has failed to take into account a factor which he ought to have considered, nor that he took into account any irrelevant matter.

Turning to the discretion under rule 19.5, the judge said this at paragraph 7, looking at the matter generally:

“7.

… I would for myself be surprised if a party who has properly alleged the facts on which he maintains a cause of action could, under the CPR, be entirely non-suited by his failure to adopt the correct procedure in bringing his claim. It seems to me that the purpose of requiring a party to set out his case at the outset is to ensure that he can allege sufficient facts on which to base his claim. If he does so and if he makes an error in the procedural manner in which he brings the case before the court, the court will normally allow him to bring the case in the proper way. So if the liquidator, instead of bringing the proceedings in the liquidation had for some reason issued the proceedings by way of a Part 7 claim and wished to have then transferred to the Companies Court to proceed under section 212 I would be inclined to think that that was possible subject, of course, to the other points that are made.”

He then referred to rule 19.5 and decided that substitution could be allowed under the rule. As regards the decision to allow it, he referred to the prejudice to the defendants by way of the loss of their limitation defence, and possible consequences as regards costs orders. On the other hand, he said, the defendants had been aware of the cause of action asserted since before the limitation period expired, and the procedural error should not “be allowed to result in a bonus to [the defendants] merely because the incorrect procedure has been adopted.” He struck the balance between those considerations in favour of the company and the liquidator.

The first notification of a claim to the former administrators was by a letter dated 15 September 2008 which, as was later confirmed, was intended to be the opening shot under the Professional Negligence Pre-Action Protocol. Correspondence ensued between solicitors, in accordance with that protocol. The defendants’ solicitors pointed out a number of errors in the claim as asserted, and criticised it in other respects. Curiously, in a letter dated 30 January 2009, the liquidator’s solicitors indicated that any proceedings would be under section 212. The defendants’ solicitors responded substantively under the protocol on 20 March 2009, denying liability. Proceedings followed on 17 April 2009, the point under section 20 and the need to use section 212 having presumably been overlooked.

In those circumstances, it seems to me that the judge was perfectly entitled to give the weight he did to the fact that issue had been joined under the protocol, and the Chancery proceedings issued, before the limitation period had expired, and that this qualified substantially the prejudice to the defendants of not being able to assert a limitation defence as regards the first month or so of the duration of the administration. His general observations at paragraph 7 were also relevant and apt. I would reject Mr Hough’s criticisms of the judge’s exercise of his discretion under the rule.

For the reasons which I have set out above, it seems to me that the judge was right to decide that he had power to allow an amendment to the existing proceedings to substitute the liquidator for the company under rule 19.5. He could not properly do so without having decided that he ought to permit the liquidator to proceed under section 212(4) notwithstanding the release, but I also conclude that his decision as to that cannot successfully be challenged. In turn, it seems to me that no error has been shown as regards his decision to allow the substitution of the liquidator in place of the company so as to assert the identical cause of action, despite its incidental effect of overriding the limitation defence that would otherwise be available if proceedings had been brought in June 2009 for the first time.

For those reasons I would dismiss this appeal.

I agree.

I also agree.