Office: +44 203 968 0500
24/7 Emergency Response: +44 7887 710 950
Select Page

Suing in the wrong name – can you correct the mistake after the time bar has expired?

Suing in the wrong name – can you correct the mistake after the time bar has expired| BDM Blog| BDM Law

In the case of Rosgosstrakh Ltd v Yapi Kredi Finansal Kiralama AO & Another [2017] EWHC 3377 (Comm), the Court considered whether the claimant’s name could be amended in a claim form after expiry of the limitation period, pursuant to CPR 17.4 or CPR 19.5. In essence, the Court will allow a name to be corrected provided there is no basis to say that there is another such company in existence.  If it is clear that you intended to name company x then the fact that its name changed does not matter. However, if you intended to name x when the claimant was y then you will be time barred.

On the facts, insurer Rosgosstrakh Limited (“RL”), paid a claim to their assured in 2010 but they later sought to claim back the payment based on a material non-disclosure. Eventually RL issued a claim in the Court in August 2016. At the time that the claim was issued RL had ceased to exist as the business of that company had been subsumed into Rosgosstrakh Insurance Company (Public Joint Stock Company) (“RIC”). The lawyers representing RL knew nothing of this change as they were only informed in September 2016 and even then they did nothing prior to the expiry of the limitation period in 2017. Eventually, the significance of the change was noticed and an application was filed to change the claimant’s name to RIC.

The relevant test for substitution in these circumstances was that in the case of The Sardinia Sulcis, which provided that substitution should be allowed if the mistake was one as to the name and not as to the identity of the party. The Defendants submitted that the Claimant could not show the existence of a mistake of the kind required to engage CPR 17.4 or CPR 19.5. CPR 17.4 deals with amendments where the mistake was genuine and not one which would cause doubts as to the identity of the party and CPR 19.5 deals with cases only where it is necessary to make an addition or substitution and when the relevant limitation period was current when the proceedings were started.

The judge held that CPR 17.4 did not apply here, however, CPR 19.5 did.  The full case can be found at: http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Comm/2017/3377.html&query=(yapi)+AND+(kredi)

BDM is a specialist shipping law firm offering high quality legal advice and representation at a reasonable price. Please follow us on social media by clicking below.

Other Recent Blogs

  • Tendering NOR does wirelessinclude email | BDM Blog | BDM Law
    November 21, 2022

    Tendering NOR – does “wireless” include email?

    In a recent arbitration under the LMAA Small Claims Procedure (1) the Tribunal had to determine the validity of a Notice of Readiness (“NOR”) which had been tendered by email. The NOR is one of the most important documents for ship owners because it acts as a trigger to [...]

    Read more >
  • Delivery without original bills – an example of what can go wrong | BDM Blog | BDM Law
    November 7, 2022

    Delivery without original bills – an example of what can go wrong

    Readers of our blog may recall an article we released back in November 2020 in which we highlighted the risks that a ship owner is required to undertake when accepting a letter of indemnity (LOI) in exchange for releasing the cargo without the production of an original bill [...]

    Read more >
  • Supreme Court gives permission to appeal in The Polar | BDM Blog | BDM Law
    October 31, 2022

    Supreme Court gives permission to appeal in “The Polar”

    We previously reported on the High Court and Court of Appeal’s decisions in one of the last Somali ransom cases still in the Court system. The Court of Appeal held that a war risks provision in a charterparty did not constitute an agreement that the owners would not claim [...]

    Read more >
+44 203 968 0500
+44 7887 710 950