Civil procedure — writ — amendment — writ mistakenly issued against company with same name as defendant but separate legal entity with different address — amendment of address on writ — was clarification as to identity of defendant and not substitution of new party — amendment allowed
In an action brought by Ps against the contract carrier under bills of lading, Ps mistakenly issued the writ against CM, a company with the same name as D but which was a separate legal entity incorporated in Malta (the Malta Address), instead of the BVI. Service on CM at the Malta Address failed. After the limitation period under the Hague-Visby Rules expired, Ps obtained leave to issue a Concurrent Amended Writ of Summons correcting D’s address to a BVI address (the Writ) and to serve it on D out of the jurisdiction in the BVI (the Order). Service was duly effected on D. D applied to set aside the Writ, discharge the Order and dismiss the action, arguing that the amendment of the Writ amounted to the substitution of a new party; and was made after the limitation period had expired which extinguished Ps’ causes of action against D.
Held, dismissing the application, that:
- The provisions relied on by D on limitation were of limited assistance. Inter alia, s.35 of the Limitation Ordinance (Cap.347) did not apply where, as here, the limitation period had expired under the Hague-Visby Rules. Nor did O.20 r.5(3) of the Rules of the High Court (RHC) apply since the amendment to the Writ was not to correct the name of D (The Jay Bola  3 All ER 329 applied). (See paras.22–23.)
- Substitution or amendment was only permitted where the true identity of the person intended to be sued was apparent from a description which was essentially specific to the particular case. Here, in view of the general endorsement of the Writ, which identified Ps’ causes of action as those against the contract carrier under the bills of lading, there could be no doubt that the party intended to be sued was D (The Sardinia Sulcis  1 Lloyd’s Rep 201 applied). (See paras.35–36.)
- Further, given that there was no ambiguity as to the name of the intended defendant, the amendment of the address in the Writ was one only to clarify its identity. Such amendment did not substitute a new party for an existing one and should be allowed (The Anna L  2 Lloyd’s Rep 379 applied). (See paras.37–41.)
This was an application by the defendant to set aside a writ of summons on which the address of the defendant had been amended. The facts are set out in the judgment.