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Whose claim is it anyway?

05 December 2012


In London Borough of Hounslow v Cumar [2012] EWCA Civ 1426, the Court of Appeal considered the court's powers to substitute parties to proceedings before the end of a relevant limitation period.

The underlying claim was for possession of residential premises due to rent arrears.  That claim was brought by Hounslow Homes, a limited company wholly owned by the London Borough of Hounslow.  But the company only acted as the managing agent of the property, and had no interest in it and so no right to possession.

CPR 19.2 allows the court to add a party (CPR 19.2(2)); remove a party (CPR 19.2(3)); and to substitute a party (CPR 19.2(4)).  Substitution is provided for where "the existing party’s interest or liability has passed to the new party".  Whilst this hadn't occurred here, at first instance it was held that there was nothing to stop the court from first adding the new party under (2) and then removing the old party under (3) – rules which did not have the same requirement for a transferred interest.

On appeal, the appellant argued that the trial judge had erred in law.  The Court of Appeal dismissed the appeal, finding the language of CPR 19.2(4) to be "permissive", not precluding "consideration of the application under any other provision".  There was case law in support of a wide interpretation of the court's powers, and such an interpretation was in line with the broad wording of paragraph 1.1 of Practice Direction 19A:

Parties may be removed, added or substituted in existing proceedings either on the court’s own initiative or on the application of either an existing party or a person who wishes to become a party.

This result is unsurprising, particularly if read in light of the court's powers once a relevant limitation period has ended, which one would expect to be more restrictive: CPR 19.5(3) allows for the addition or substitution of a party where the court is satisfied that it is necessary, ie that:

  • the original party was named in mistake on the claim form;
  • the claim cannot properly be carried on without the substitution or addition; or
  • the original party's interest has passed to the new party (through death or bankruptcy).