COUNSEL: S. T. Evans, K.C., and R. E. L. Vaughan Williams, for the defendants.

Bankes, K.C., and L. M. Richards, for the plaintiff.

 

SOLICITORS: For plaintiff: Patersons, Snow, Bloxam & Kinder, for Hadley & Dain, Birmingham.

For defendants: G. J. Vanderpump & Son, for Daniel Evans, Brecon.

 

JUDGES: Collins M.R. and Cozens-Hardy L.J.

 

DATE: 1902 July 21.

 

 

Practice – Parties – Adding or substituting Plaintiff – Order XVI., rr. 2, 11.

 

Where an action has, through a bon‰ fide mistake, been commenced in the name of the wrong person as plaintiff, the fact that the original plaintiff has no cause of action does not take away the jurisdiction of the Court to order the substitution of another person as plaintiff.

 

APPEAL from an order of a judge at chambers ordering that Lloyd’s Bank, Limited, should be substituted as plaintiffs in the action for the original plaintiff Hughes.

 

Hughes was a contractor who had done work for the defendants under a contract, and, a dispute having arisen, he brought an action to recover the amount alleged to be due to him under the contract. A question of law was raised in the action as to whether there had been an absolute assignment by Hughes of the debt, within s. 25, sub-s. 6, of the Judicature Act, 1873, to Lloyd’s Bank, and on argument Wright J. decided that the assignment made by Hughes was by way of charge only. This decision was reversed by the Court of Appeal (1), and the plaintiff thereupon applied for an order for the substitution of Lloyd’s Bank as plaintiffs. A master made an order to that effect, which was affirmed on appeal by Channell J.

 

The defendants appealed.

 

S. T. Evans, K.C., and R. E. L. Vaughan Williams, for the defendants. The decision of the Court of Appeal shews that Hughes has no cause of action against the defendants. Under these circumstances neither rule 2 nor rule 11 of Order XVI. applies, for a plaintiff cannot be introduced so as to make a new cause of action against a defendant and keep the action alive for the benefit of the new plaintiff: New

 

(1) Ante, p. 190. [*486]

 

Westminster Brewery v. Hannah (1); Clowes v. Hilliard (2); Walcott v. Lyons. (3) The rules apply where there has been a bon‰ fide mistake, such, for example, as the use of a wrong name, and not to such a case as this, where the plaintiff intentionally instituted the action in his own name. The class of mistake that can be dealt with under these rules is illustrated by the case of The Duke of Buccleuch (4), where the action was brought in the name of an agent instead of in that of the owner of the cargo.

 

Bankes, K.C., and L. M. Richards, for the plaintiff. There has been a bon‰ fide mistake as to a matter of law, and that is sufficient to enable the rule to be applied: Duckett v. Gover. (5) There is no distinction in principle between adding and substituting a plaintiff, and the proper course in this case is to substitute the assignees. In Ayscough v. Bullar (6) the case of Walcott v. Lyons (3) was distinguished, on the ground that in that case the question between the parties was not whether there had been a breach of trust, but whether the original plaintiff was an assenting party. The Duke of Buccleuch (4) is clearly a case of the substitution of a person who had a right for a plaintiff who had no right.

 

S. T. Evans, K.C., in reply.

 

COLLINS M.R. This is an appeal from an order of a master which has been affirmed by Channell J.

 

The plaintiff commenced an action against the defendants, and a question arose whether the plaintiff had made an absolute assignment of his claim against the defendants, or only an assignment by way of charge only, and on the decision of that point depended the plaintiff’s right to bring an action. Wright J. took one view of the case, and the Court of Appeal took another, and that in itself is evidence that the plaintiff had made a bon‰ fide mistake in commencing the action in his own name. That lets in the jurisdiction of the Court under Order XVI., r. 2, to order that another person should be substituted or added as plaintiff upon such terms as may be just. So long as the doubt as to who should bring the action was bon‰

 

(1) W. N. (1877) 35.

 

(2) (1876) 4 Ch. D. 413.

 

(3) (1885) 29 Ch. D. 584.

 

(4) [1892] P. 201.

 

(5) (1877) 6 Ch. D. 82.

 

(6) (1889) 41 Ch. D. 341. [*487]

 

fide, there can be no question as to the jurisdiction of the Court, and on the facts it is plain that it was a genuine doubt. The two cases of Duckett v. Gover (1) and Ayscough v. Bullar (2) are clear authorities on the point raised before us. In each case the right asserted by the new plaintiff excluded that of the original one. In those cases plaintiffs were added, but there can be no difference in principle whether a plaintiff is added or substituted, and both adding and substituting are specifically mentioned in the rule. I think, therefore, that the objection raised by the defendants fails, and that the order was rightly made.

 

COZENS-HARDY L.J. This case seems to me to fall clearly within the words of Order XVI., r. 2. There has been a bon‰ fide mistake of law as to whether there had been an absolute assignment of the plaintiff’s claim, or an assignment by way of charge only. It is said that the rule does not apply where it is shewn that the plaintiff has no right of action; but there are abundant authorities to the contrary effect. In Carswell v. Hyland (3) there was an addition of a plaintiff in a case in which the original plaintiff was heir-at-law of a deceased trustee, and had no right of action, the right being vested in the added plaintiff as legal personal representative; and in others of the cases which have been cited the failure of the right of the original plaintiff to bring the action was the reason for the addition of another person as plaintiff. There is no difference, as was suggested, between the addition and the substitution of a plaintiff. When once the case is shewn to be within the rule, there is jurisdiction to add or to substitute. I think, therefore, the order appealed from was right.

 

Appeal dismissed.

 

(1) 6 Ch. D. 82.

 

(2) 41 Ch. D. 341.

 

(3) (1887) 3 Times L. R. 708.