Kesslar v Moore & Tibbits

Kesslar v Moore & Tibbits

The claimant's mistake was as to the identity of the proper party to sue for the alleged negligence, not merely as to legal liability. The intended defendants (Miss Roughley and Mr Kundert) can be substituted under CPR 19.5(3)(a) because the claim was always directed at those responsible for the 1997 conveyance, and the error was in naming Moore & Tibbits. The appeal is allowed and substitution ordered.

Parties
Appellant/claimant: Beverley Kesslar; Respondents/defendants: Moore & Tibbits
Jurisdiction
England and Wales
Judgment Date
03 November 2004
Procedural Posture
Civil Appeal / Appeal From County Court Decision
Outcome
Appeal allowed
Legal Topics
Substitution of Parties, Mistake in Party Identity, Limitation Period, Professional Negligence
Civil Procedure Limitation of Actions Substitution of Parties Mistake in Party Identity Limitation Period Professional Negligence

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Parties

Beverley Kesslar

Appellant/claimant

Moore & Tibbits

Respondents/defendants

Procedural Posture

Civil Appeal / Appeal From County Court Decision

Legal Issues

  1. 1 Whether CPR 19.5(3)(a) permits substitution of defendants after expiry of limitation period due to mistake as to proper party
  2. 2 Whether the mistake was as to identity or legal liability of the party sued

Ratio Decidendi

The claimant's mistake was as to the identity of the proper party to sue for the alleged negligence, not merely as to legal liability. The intended defendants (Miss Roughley and Mr Kundert) can be substituted under CPR 19.5(3)(a) because the claim was always directed at those responsible for the 1997 conveyance, and the error was in naming Moore & Tibbits. The appeal is allowed and substitution ordered.

Court Disposition

Appeal allowed

Orders

  • Order to substitute Mr Kundert and Miss Roughley as defendants in place of Moore & Tibbits.
  • Repayment of costs incurred and paid by the appellant for hearings on 29th September and 20th November 2003 (£3,491.06) and 21st May 2004 (£4,303.64).