Commencing a claim - Adding, removing, or substituting parties

Learning Outcomes

This article outlines the rules and procedures under the Civil Procedure Rules (CPR) Part 19 concerning the addition, removal, and substitution of parties to a civil claim. It explains the court's discretion in managing parties and the specific requirements when making such changes, particularly concerning limitation periods. After studying this article, you should understand the key principles governing changes to parties and be able to apply them to SQE1 assessment scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the procedural rules for altering the parties to a claim after proceedings have commenced. This involves applying the provisions of CPR Part 19 effectively. Your revision should focus on:

  • The court's general powers to add, remove or substitute parties.
  • The procedure for making an application to change parties.
  • The specific considerations and stricter requirements when seeking to change parties after the expiry of a relevant limitation period.
  • The concept of the court's discretion and the overriding objective in managing parties.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Under which part of the Civil Procedure Rules are the rules for adding, removing, and substituting parties primarily found?
    1. CPR Part 17
    2. CPR Part 19
    3. CPR Part 20
    4. CPR Part 23
  2. Can a claimant be added to existing proceedings after the relevant limitation period has expired?
    1. Yes, with the consent of all existing parties.
    2. Yes, but only with the court's permission and if specific conditions under CPR 19.5 are met.
    3. No, adding a claimant is never possible after the limitation period.
    4. No, unless the defendant agrees in writing.
  3. Which of the following is a key consideration for the court when deciding whether to add a new party under CPR 19.2(2)?
    1. Whether the new party can afford legal representation.
    2. Whether adding the new party is desirable to resolve all matters in dispute.
    3. Whether the new party has previously been involved in litigation.
    4. Whether the existing parties have sufficient funds to cover potential costs.

Introduction

Ensuring the correct parties are involved in a claim is fundamental to civil litigation. Sometimes, circumstances change after proceedings have started, necessitating the addition, removal, or substitution of a party. CPR Part 19 provides the court with powers to manage the parties involved in a claim, aiming to ensure all matters in dispute can be resolved effectively and justly. This article explores these powers and the procedures involved.

Key Term: Parties
The individuals, companies, or other legal entities who are directly involved in a legal claim as claimants, defendants, or other participants (e.g., Part 20 parties).

The court's approach is guided by the overriding objective (CPR 1.1) to deal with cases justly and at proportionate cost. This includes ensuring that cases are managed efficiently and that all necessary persons are party to the proceedings to enable the court to resolve the real issues.

ADDING, REMOVING, AND SUBSTITUTING PARTIES: CPR PART 19

CPR Part 19 contains the main rules governing changes to parties after proceedings have commenced. The court has wide discretionary powers under this part.

Adding Parties (CPR 19.2(2))

The court may order a person to be added as a new party to the proceedings.

Key Term: Joinder
The process of adding a person as a party (claimant or defendant) to existing legal proceedings.

This power can be exercised if either:

(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

The term 'desirable' gives the court flexibility, but the addition must be linked to resolving the substantive issues. An application is usually made by an existing party, supported by evidence explaining why the addition is desirable.

Worked Example 1.1

Scenario: P sues D1 (a driver) for negligence following a road traffic accident. During disclosure, evidence emerges suggesting D2 (another driver) may also have been partially at fault for the collision. P wishes to add D2 to the claim. Assume the limitation period has not expired.

Question: On what basis might the court add D2?

Answer: The court might add D2 under CPR 19.2(2)(b). There is an issue (liability for the accident) involving the proposed new party (D2) and an existing party (P) which is connected to the matters in dispute (D1's liability). Adding D2 is likely desirable so the court can resolve the issue of liability concerning all potentially responsible drivers in one set of proceedings.

Removing Parties (CPR 19.2(3))

The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings.

Key Term: Misjoinder
The incorrect inclusion of a person as a party to legal proceedings, where they should not have been joined.

This might occur if a party has been incorrectly joined (misjoinder) or if their involvement is no longer necessary (e.g., due to settlement or a change in the issues).

Substituting Parties (CPR 19.2(4))

Substitution involves replacing an existing party with a new party. The court may order this if:

(a) the existing party’s interest or liability has passed to the new party (e.g., due to death, bankruptcy, or assignment); and
(b) it is desirable to substitute the new party so that the court can resolve the matters in dispute.

Key Term: Substitution
The replacement of one party in legal proceedings with another party, typically because the interest or liability has transferred.

Procedure for Changing Parties

Generally, an application to add, remove, or substitute a party must be made under CPR Part 23, supported by evidence setting out the reasons for the change. The application notice must be served on all existing parties and any person proposed to be added or substituted.

Exam Warning

Pay close attention to the specific requirements for adding claimants versus defendants, especially regarding consent. CPR 19.4(4) states that no person may be added or substituted as a claimant unless their written consent is filed with the court.

CHANGES AFTER THE LIMITATION PERIOD (CPR 19.5)

Adding or substituting a party after the relevant limitation period has expired is more difficult and is governed by the specific, stricter requirements of CPR 19.5. The court's permission is always required.

Adding or Substituting a Claimant After Limitation

The court may only add or substitute a claimant after the limitation period has expired if:

(a) the limitation period was current when the proceedings were started; and
(b) the addition or substitution is necessary.

Substitution is deemed 'necessary' only if the new party is to be substituted for a party named in the claim form in mistake. Addition is 'necessary' only if the claim cannot properly be carried on by or against the original party unless the new party is added.

Adding or Substituting a Defendant After Limitation

The court may only add or substitute a defendant after the limitation period has expired if:

(a) the limitation period was current when the proceedings were started; and
(b) the addition or substitution is necessary.

For defendants, 'necessary' means one of the following conditions applies:

  • The new party is substituted for a party named in the claim form in mistake for the new party.
  • The claim cannot properly be carried on by or against the original party unless the new party is added or substituted as defendant.
  • The original party has died or had a bankruptcy order made against them and their interest or liability has passed to the new party.

Key Term: Limitation Period
The statutory time limit within which legal proceedings must be commenced. Failure to start a claim within this period generally provides the defendant with a complete defence.

Worked Example 1.2

Scenario: Claimant Ltd issues proceedings against ABC Builders Ltd for defective construction work just before the limitation period expires. It later transpires that the work was actually carried out by ABC Construction Ltd, a related but separate company, and naming ABC Builders Ltd was a genuine mistake.

Question: Can Claimant Ltd substitute ABC Construction Ltd as the defendant after the limitation period has expired?

Answer: Yes, potentially. Under CPR 19.5(3)(a), the court may permit substitution if the limitation period was current when proceedings started (which it was) and the substitution is necessary because the new party (ABC Construction Ltd) is being substituted for a party named in mistake (ABC Builders Ltd). The claimant would need to apply to the court and provide evidence of the mistake.

Revision Tip

When faced with a scenario involving changing parties after limitation, always identify: (1) whether the original claim was issued in time, and (2) which specific limb of CPR 19.5(2) (for claimants) or CPR 19.5(3) (for defendants) applies. The mistake category (CPR 19.5(3)(a)) is frequently tested.

Key Point Checklist

This article has covered the following key knowledge points:

  • CPR Part 19 governs the addition, removal, and substitution of parties after proceedings have commenced.
  • The court has discretion, guided by the overriding objective and whether the change is desirable for resolving the issues.
  • An application under CPR Part 23 is usually required, supported by evidence.
  • Adding or substituting a claimant requires their written consent.
  • Stricter rules under CPR 19.5 apply if the relevant limitation period has expired; the change must be 'necessary' under specific defined circumstances (e.g., mistake, claim cannot be carried on, transfer of interest/liability).

Key Terms and Concepts

  • Parties
  • Joinder
  • Misjoinder
  • Substitution
  • Limitation Period
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