Civil action dismissed for misjoinder of defendant where name difference exceeds mere misnomer.

[*328] 1985 Jan. 31

(MILTIADOU, D.J.)

IN THE DISTRICT COURT OF PAPHOS

Georghios Evripides,

Plaintiff,

v.

Chrysanthos Elia Demetriou,

Defendant.

(Action No. 663/83).

Civil Procedure - Parties - Misjoinder - A matter quite different from that of a misnomer - Review of English Authorities relating to the distinction - Misnomer of defendant - If the latter enters an unconditional appearance, his right to object is waived - Defendant described in the writ of summons as Chrysanthos Elia Demetriou - Appearance entered by Elias Demetriou Chrysanthou - A case of misjoinder - Therefore, the appearance does not operate as a waiver - Action dismissed.

A. Evzonas, for the Plaintiff.

A. Andreou for P. Sivitanides, for the Defendant.

JUDGMENT

The following judgment was delivered by:-

MILTIADOU, D.J.:- Before proceeding to examine the evidence adduced on its merits, I decided, that, it is proper to proceed and consider first, the question whether the proper parties are before the Court, because, during the hearing of the above action, D.W.1, the purported defendant, said that, his name is Elias Demetriou Chrysanthou and not Chrysanthos Elia Demetriou as described in the title of the action. [*329]

It is an overriding principle governing parties to an action that all necessary and proper parties, but no other, should be before the Court. At Common Law, the law relating to parties was complex and technical and often led to difficulties and hardship. The strict rule of law was that an action should only be brought in the name of a person or persons in whom the right to sue was legally vested and only against the person or persons in whom the liability to be sued legally existed. Hence, the non-joinder or misjoinder of parties, whether as plaintiffs or defendants could be fatal. This strict rule of law has been removed by the Supreme Court of Judicature Acts 1973 and 1975 and later contained in the Rules of the Supreme Court, 1883. The rule relating to the misjoinder or non-joinder of the parties is Order 16, rule 11, which is identical with our Order 9, rule 10, of the Civil Procedure Rules.

The cardinal importance of the rule is that, the misjoinder or the non-joinder of any party, whether plaintiff or defendant, shall not operate to defeat any cause or matter, and the Court may determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter, but its main object is to prevent justice being defeated for want of parties, by the misjoinder or non-joinder of parties as happened under the [*330] common law, and to provide for any necessary amendment in respect of the parties to an action to be made at any stage of the proceedings to enable an effectual adjudication to be made by the Court of all matters in dispute.

A distinction must, however, be made from a misnomer of a party, for a misjoinder of a party. Misnomer is, where the party is misnamed, and, to use what in the Annual Practice 1958, p.13, under the heading “Misnomer of Defendant” is stated, a defendant is misnamed either, e.g. by being described as “John” when his real Christian name is “William” or as “Smith” when his real name is “Smythe”.

Where there is an inaccuracy in the statement of the name of the defendant on the writ, the defendant may either by his appearance to correct any such mistake, so long as it is clear that he is the defendant sued, but, such a correction does not relieve the plaintiff from the necessity of amending his writ, if the alteration is material, or, if he wishes, may take advantage of it and apply either before entering his appearance or after entering a conditional appearance to have the service of the writ set aside. In the event the defendant elects to enter an appearance then it is too late to object as having waived such a right. [*331]

The question which needs consideration in the present action is whether the description of defendant’s name is a misnomer and, therefore, the defendant by entering appearance, on the 24th September, 1983, he waived his right and as such, in no circumstances can affect the substantive judgment which the Court is called upon to pronounce or there is a misjoinder of a party and independantly of the fact that no objection was taken by the defendant, this action cannot proceed and is bound to fail as the proper parties are not before the Court.

Unfortunately, there is no authority on the matter of our Supreme Court. In England, however, there is a volume of authority, mainly, in cases where there is a motion to amend the parties, and such amendment applied for, would defeat vested rights, such as a defence under the Limitations Act, and, the Courts were called to decide, whether the proposed amendment was an addition, or, a substitution of an existing party, in which case such an amendment was disallowed, or it was a correction of the name of the party, whose name was inaccurately stated on the writ, in which case it was easily granted.

In Mabro

v. Eagle Star and British Dominions Insurance Co. Ltd., (1932) ALL E.R. Rep. 411 - An action was commenced by two persons

named Marbo on a policy. Two years after an application was [*332] made under order 16, rule 2, that a person named Zak should be added as plaintiff as the person interested in the insurance. Held: The amendment applied for is an addition of a new party and the Court will not allow such amendment joining a new plaintiff to the writ the effect of so doing would be to deprive the defendants of a defence under the Statute of Limitations.

In Hill and Son v. Tannerhill,

(1944) 113 L.J.K.B. 456 - In this case W. Hill, an individual trading alone and without partners as W. Hill & Son, issued a writ in the firm name, contrary to the Rules of the Supreme Court, 1883, Order 48A, rule 1, requiring that an action can be brought in a firm’s name only where there are two or more partners. The Court of Appeal held that the plaintiff was entitled to the order. The words “& Son” were struck out as a misnomer and the action was allowed to remain as though the proper plaintiff Walter Hill, had been substituted.

In Alexander Mountain & Co. v. Rumere Ltd., (1948) 2 ALL E.R. p.482, A.M. was the sole proprietor of a business which he carried on, in the name of “A.M. & Co.”. By R.S.C., Order 48A, r.1, an action can be brought in a firm’s name only where there are two or more partners. After the death of A.M. his executrix, who continued to carry on the business [*333] under the same trading name brought an action in the name of “A.M. & Co. (trading as a firm)”, the action being in respect of a contract made by A.M. during his lifetime. On an application to amend the writ by substituting the executrix as plaintiff, Held: While the action did not fall within R.S.C. Order 16, r.2, as having been “commenced in the name of the wrong person as plaintiff”, the case might properly be treated as one of misnomer and the writ amended by substituting the executrix as plaintiff.

In Re Nos.

55 and 57, Holmes Road, Kentish Town, (1958) 2 ALL E.R. 311, on April 16, 1957, landlords, B.B. (Properties) Ltd., who were assignees of the freehold reversion on a lease of business premises originally granted by another company, B.B. Ltd., served a notice, under s.25 of the Landlord and Tenant Act, 1954, on their tenants terminating the tenancy at Christmas, 1957. Though the two companies, B.B. (Properties) Ltd., and B.B. Ltd. were closely related and had the same directors, secretary and office, neither company was a subsidiary of the other. The tenants knew that B.B. (Properties) Ltd. were their landlords and duly gave notice to them that they would not be willing to give up possession. On July 30, 1957, the tenants issued an originating summons, applying under s. 24(l) of the Act of 1954 for a new tenancy. B.B. Ltd., was [*334] made respondent to the summons, which was served on the secretary of the two companies on August 8, 1957. On October 17, 1957, leave was granted to amend the summons by altering the name of the respondents to B.B. (Properties) Ltd. That company having subsequently taken objection to the amendment having been allowed held: Leave to amend the summons should not have been granted for the following reasons:

(i) As the tenants knew of both the two companies and that their landlord was B.B. (Properties) Ltd., naming the wrong company as respondent was not a mere misnomer.

(ii) ……………………………………………………………………………………

In Davies v. Elsby Brothers, Ltd., (1960) 3 ALL E.R.p.672 - The facts were the following: Until 1955 the plaintiff had been employed by a firm called Elsby Brothers. In 1955 the business of the firm was taken over by a company called Elsby Brothers, Ltd., which continued plaintiff’s employment. On March 20, 1956, the plaintiff was injured in an accident which he alleged was due to the negligence of his employers, and on March 18, 1959, the plaintiff’s solicitors issued a writ for him against “Elsby Brothers (a firm)”, claiming “damages for injuries and loss sustained by the plaintiff while an employee of the defendants by the negligence of the defendants and/or their servants”. On March 17, 1960 (i.e. after the period of limitation had [*335] expired) the plaintiff’s solicitors applied for and were granted leave to amend the writ by changing the name of the defendants from “Elsby Brothers (a firm)” to “Elsby Brothers, Ltd.,”- Held: - The amendment should not be granted after the expiry of the period of limitation. The amendment involved the addition of a new defendant, the limited company, and was not merely the correction of a misnomer …… and, dealing with the matter, Pearce, L.J. in his judgment at p.

674 said : -

“In my opinion the addition of a defendant is governed by the same considerations as the addition of a plaintiff. Therefore, the principle of Marbo’s case prevents the amendment in this case if the amendment involves the addition of a party and not the mere correction of a misnomer. That principle also applies to the substitution of a party, since substitution involves the addition of a party in replacement of the party that is removed”.

Devlin, L.J. on the other hand, in his judgment at p.676 said:-

“It is a general principle of English Law, not merely applicable to cases of misnomer, that the intention which the framer of the document has in mind when he brings it into existence is not material. In that, we differ from many continental systems. In English law as a general [*336] principle the question is not what the writer of the document intended or meant, but what a reasonable man reading the document would understand it to mean; and that is the test which ought to be applied as a general rule in cases of misnomer which may embrace a number of other situations apart from misnomer on a writ, for example, mistake as to identity in the making of a contract. The test must be: How would a reasonable person receiving the document take it? If in all the circumstances of the case and looking at the document as a whole, he would say to himself: ‘Of course it must, mean me, but they have got my name wrong’, then there is a case of mere misnomer. If, on the other hand, he would say I cannot tell from the document itself whether they meant me or not and I shall have to make inquiries’, then, it seems to me that one is getting beyond the realm of misnomer”.

Guided by the above authorities and having given the matter the necessary consideration, I am of the opinion that, no reasonable person reading the said writ would mean that Chrysanthos Elia Demetriou is Elias Demetriou Chrysanthou; this is not a case where the Christian name of the defendant is misdescribed, and, therefore, is beyond the realm of misnomer. [*337]

In my judgment in the above action, there is a misjoinder of party and quite independently of the fact that an appearance was entered and no objection was taken by the defendant, the action can not proceed without the necessary amendment being made for the substitution of the defendant’s name and since no order to that effect was obtained by the plaintiff, the Court cannot proceed to pronounce judgment.

In the result, the above action is dismissed for want of the proper parties before the Court. This will not be a bar for the plaintiff to institute afresh new proceedings against the proper defendant. As regards the question of costs, taking into consideration the attitude of the defendant in dealing with the above case and in the exercise of my discretion, I make no order as to costs.

Action dismissed with no order as to costs.