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26 January 2010
Supreme Court decision
The Supreme Court recently considered the basis upon which, depending on the circumstances, the name of a party to proceedings can be changed. This arose in the context of an appeal in Sandy Lane Hotel Limited v Times Newspapers Limited ( IESC 75) against a High Court order granting the application of the plaintiff to substitute "Sandy Lane Hotel Co Limited" for "Sandy Lane Hotel Limited" in the proceedings.
The High Court made the order pursuant to Order 63, Rule 1(15) of the Rules of the Superior Courts, which provides that the court may make "an order for the correction of clerical errors or errors in the names of parties in any proceeding, whether on consent or not, but subject to re-service when not on consent".
The underlying cause of action was libel arising from an article published in March 1998, in respect of which proceedings were issued in the name of Sandy Lane Hotel Limited in June 1998. The proceedings, after discovery, went dormant between 2001 and 2004 and, in June 2004, a notice of intention to proceed and a notice of trial were served. The present application was subsequently brought pursuant to Order 63, Rule 1(15), objected to by the defendants, but acceded to by the High Court on the basis that the defendants were at all times aware that the person taking the case was the owner of the Sandy Lane Hotel and that justice would not be served if the position adopted by the defendants on the application were to succeed.
On appeal, the plaintiff claimed that the application was within Order 63, Rule 1(15). However, the defendants argued that the application should more properly be brought under other rules – either Order 15, Rule 2 or Order 15, Rule 13 of the rules.
Order 15, Rule 2 provides that:
"Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the court may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as a plaintiff upon such terms as may be just."
Order 15, Rule 13 provides that:
"No cause or matter shall be defeated by reason of the mis-joinder or non-joinder of parties, and a court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and the names of any parties, whether plaintiffs or defendants who ought to have been joined or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the cause or matter, be added."
The defendants contended that if the plaintiff were to bring an application under those rules, not only was there no mistake for the purposes of Order 15, Rule 2, but that under either rule the cause of action in the proposed plaintiff was statute barred.
The Sandy Lane Hotel in Barbados was operated and owned by the Sandy Bay Hotel Limited, a Barbados company, since 1961. In 1996 this company was bought by the Sandy Lane Hotel Limited, a St Lucian company. On April 22 1997 Sandy Bay Hotel Limited, the company which both owns and operates the Sandy Lane Hotel, changed its name to the Sandy Lane Hotel Co Limited, which is how and when the proposed plaintiff came into being.
As part of the application pursuant to Order 63, Rule 1(15), it was put on affidavit by the plaintiff's company secretary that:
"when the article appeared in the Sunday Times, and when proceedings were subsequently issued, I understood the name of the plaintiff company was Sandy Lane Hotel Limited. It was only when the issue was recently drawn to my attention that I recalled that the word 'Co' had in fact been included in its title on the initiative of [a Barbados lawyer] as set out above... the reason the error [ie, the alleged error in the name of the plaintiff] occurred is that the inclusion of the word 'Co' in the name of the plaintiff was not originally intended."
The plaintiff further submitted that, in making the application pursuant to Order 63, Rule 1(15), it:
"was not seeking to add a new party or to substitute a different party for the party who instituted the proceedings. It was simply seeking to correct an error in the name of the plaintiff as appearing in the title of the proceedings… this is not a case of the wrong plaintiff suing the defendant. The proceedings were issued on behalf and with the instructions of Sandy Lane Hotel Co Limited through administrative inadvertence, the plaintiff was named as 'Sandy Lane Hotel Limited' in the title to the proceedings."
The Supreme Court decision was delivered by Justice Hardiman, who noted that in the context of the plaintiff's submissions regarding Order 63, Rule 1(15), the term 'clerical error' has been the subject of judicial decisions. He cited Commissioner of Patents, ex parte Martin  89 CLR 381, to the effect that:
"the characteristic of a clerical error is not that it is in itself trivial or unimportant, but that it arises in the mechanical process of writing or transcribing."
He also cited the subsequent decision in Re Meres Application  RPC 182, where it was stated that:
"the words 'clerical error' must, I think, be taken to mean a mistake made in the course of a mechanical process such as writing or copying as distinct from an order arising, for example, from lack of knowledge, or wrong information, in the intellectual process of drafting language to express intentions."
Ultimately, the Supreme Court held that, having regard to the structure of Order 63, Rule 1(15), the phrase "errors in the names of parties" must be construed in the same sense as the proceeding phrase, with which it is eiusdem generis (of the same kind). That phrase is 'clerical errors'. The court ruled that either category of error must be construed in contradistinction from other kinds of error arising from "lack of knowledge or wrong information". Based on the affidavit in support of the application, it considered that the mistake made in this case was not one which could be described as a clerical error or similar. The deponent conceded that the name 'Sandy Lane Hotel Co Limited' was not originally intended to be used in the proceedings because, although he was aware of the history of the companies, it was not present to his mind, or to the mind of the lawyers, that the company actually operating the hotel was the Sandy Lane Hotel Co Limited.
In Hardiman's view, this was not a clerical error. Rather, he was of the opinion that the error arose due to a mistaken belief and a failure to ascribe any significance to the 1997 change of name. On that basis, the court allowed the appeal by the defendants and set aside the High Court order. Moreover, it also noted that, because of the delay in prosecuting the claim, the defendants might be able to object to the substitution of a new party on the grounds that the statute of limitations had run as against that party. However, since that was a separate issue that might come before the courts, no further comment was made.
The Supreme Court decision has clarified that Order 63, Rule 1(15) is narrow in its focus and, to the extent that an error cannot properly be said to be 'clerical' in nature, no application to change a party to proceedings based on that rule should be brought. Rather, other rules may be more appropriate upon which to bring an application to substitute new parties, but such substitution has potential implications for a plaintiff in respect of applicable limitation periods. In many ways, the case highlights the basic principle that great care should be taken in identifying and referring to parties in proceedings, as opportunities to correct such errors subsequently may be both limited and costly.
For further information on this topic please contact Gearoid Carey at Matheson Ormsby Prentice by telephone (+353 1 232 2000), fax (+353 1 232 3333) or email (firstname.lastname@example.org).
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