Mistakes in Litigation

The recent case of Best Friends Group v Barclays Bank PLC has shown the importance of getting the basics right from the beginning and highlights the necessity of compliance with the Civil Procedure Rules (CPR).

Best Friends Group and another v Barclays Bank plc [2018] EWCA Civ 601: Facts

The Claimant's solicitors issued proceedings against a bank using a trading name rather than correctly identifying the legal entities entitled to make the claim. The Claimant was the owner of a veterinary practice called Best Friends Veterinary Group which also traded as Best Friends Group and Best Friends. The claim was for consequential loss against the bank for swap transactions the owner had entered into with the bank. The claim form was issued in the name of Best Friends Group.

It was brought to the Claimant's attention that the claim had not been issued in the correct name. An attempt was made to amend the claim form prior to service, but only the claim form was amended, and on receipt of the claim form and particulars of claim bearing different names, the bank complained about the inadequacies of the particulars of claim and the amendment and/or joinder of the owner in his personal capacity. This issue was then not addressed promptly.  

Eventually, after a number of other procedural steps, the solicitors for the Claimant formally applied for permission to add the owner as a claimant after expiry of limitation.

In accordance with CPR 17.4(3) the Court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.

At first instance, the judge held that there was insufficient evidence to conclude that there had been a genuine mistake and that there could be reasonable doubt as to the identity of the claimant, and that even if that had not been the case, he would not have been minded to exercise his discretion due to what he regarded as unnecessary delay, costs and the particular background resulting in the incorrect naming of the Claimant at the outset.

On appeal the Court of Appeal agreed with the Judge's decisions and confirmed that it would not disturb discretionary case management decisions unless the Judge had erred in principle or reached a plainly wrong conclusion. The Court of Appeal did not think that had occurred in this case, and particularly noted that no evidence had been provided by the Claimant himself in relation to the application to amend the name and that a prompt application had not been made.

Comment

Had a prompt application to amend the claim form been made as soon as the error was discovered with a justifiable reason for the mistake the decision may have been different.

The decision shows the importance of ensuing the correct entity is listed on the claim form and emphasises the importance of bringing a claim within a reasonable amount of time, avoiding mistakes made because of a rush to ensure limitation has not expired.