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TMI Blog1961 (10) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... urred on September 10, 1957; so that the limitation period would expire on September 10, 1960. The writ, however, was issued in her name against "W.J. Daniels Co. (a firm)." The amendment which Master Clayton allowed was to strike out that description of the defendants and to substitute " W.J. Daniel Co. Ltd.," and that amendment was allowed on October 12, 1960; that is to say, just after the three-year limitation had expired. Elwes J. took the view, contrary to that adopted by Master Lawrence, that the effect of that amendment was to substitute a new defendant and to deprive that defendant of the right to rely upon the Statute of Limitations, which it would have enjoyed had the action been started on October 12, 1960. The appeal before us is based upon the argument that in reality the defendant in this case could have been under no doubt that it was this limited company which was the intended defendant, and that the description of the defendant as "W. J. Daniels Co. (a firm) " was a mere misnomer; and, as there was no such firm in existence, and as the defendant company could have been under no doubt that it was the intended defendant, therefore this (unlike Davies v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il some time in 1936. On September 10, 1957, she was an infant employed by this limited company, and it was on that day that she suffered an accident. There was correspondence about the liability for that accident, but, as she could get no satisfaction, she sought legal aid and that was granted by a certificate dated September 5, 1960. That certificate states that Mrs. Norma Gillian Whittam-by this time she had married-was granted legal aid "in connection with the following proceedings, to bring an action for damages for personal injuries sustained in an accident on September 10, 1957, against Messrs. W. J. Daniels Co., limited to further inquiries, counsel's opinion and the issue of a writ." Now, time was running short by September 6, 1960. There were only a few more days within which to issue a writ, if one was to be in time. Mr. Ackner points out that if there had been another "Limited" added after the words "W. J. Daniels Co." in the legal aid certificate, this case would never have arisen; it may well be that there was " W. J. Daniels Co. Ltd." on the draft which the typist copied and she just omitted one of them by accident. Be that as it may, that apparently was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 mean me or not and I shall have to make inquiries,' then it seems to me that one is getting beyond the realm of misnomer. One of the factors which must operate on the mind of the recipient of a document, and which operates in this case, is whether there is or is not another entity to whom the description on the writ might refer." Applying that test, there could have been no doubt in the mind of the present company when they got the writ that it was they whom the plaintiff intended to sue, and that she had simply got the name wrong. But one now has to deal with the much wider point which is taken by Mr. Ormrod, that the word "Limited" is an essential part of the name of a company and that unless the word "Limited" is added, nobody is sued. He therefore says: I was never sued in this case at all until my name was put on the writ by the amendment, and that was too late." That argument was, it seems, one of those advanced on behalf of the company in Elsby Brothers Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew it was not possible for them to say that the writ must have been intended for the company. The date of the accident is not specified in the writ. It was possible that the accident referred to in the writ was one which had occurred while the firm was still carrying on the business. Therefore, their being the two definite, separate entities, the firm and the company, it is not possible to say that the inclusion of the firm on the writ was a mere misnomer for the inclusion of the limited company." So there in that passage he gives the reason for his judgment. If he had intended to say that the omission of the word "Limited" by itself is fatal, of course he could easily have done so, and that would have been the end of the matter, but that he does not say; and, from the passages I have quoted, I do not think it is possible to say that Pearce L. J. approved or assented to the argument which is now being put before us. It begins, for its support, with a quotation from section 2 of the Companies Act, 1948, dealing with the requirements of the memorandum of association of companies. Section 2 provides that the memorandum of every company must state the name of the company, with "Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in fact the business had been carried on by Alexander Mountain simply under the style of "Alexander Mountain and Co." and there really was no partnership firm: accordingly, the writ had been issued in the wrong name. The plaintiff's solicitors then notified the defendant's solicitors that they proposed to apply to amend the writ when the action came on by substituting the name "Doris Mountain, Executrix of Alexander Mountain, deceased." The defendants objected that there was no power to make the amendment. Lord Goddard C.J. decided that that was so, and dismissed the action, not allowing the amendment which was sought; but the plaintiff's appeal was allowed. Cohen L.J., giving judgment, referred [1948] 2 K.B. 436, 441 to D. Glanville Co. Ltd. v. Lyne [1942] WN 65 in which a writ had been issued on behalf of a corporation in a wrong name and judgment had been entered for the defendant on the ground of the non-existence of the plaintiffs. It was a case, therefore, like the present except that the name of the plaintiffs was wrong. There was an article in the Law Journal on May 9, 1942, vol. 92, p. 150, commenting upon that decision, and I had better read what was said, because C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter, nor do the rules of court deal with misnomers in any way. It therefore appears that Order 72, rule 2, applies ; i.e ., ' the present procedure and practice ' (that is, the practice in force when the Rules of 1883 were framed) remains in force, and the defendant by summons, supported by affidavit, could compel the plaintiff to amend. If he does not do so, and the matter proceeds to trial, it is submitted that the misnomer can then be amended, and that in no circumstances could the misnomer affect the substantive judgment which the court is called upon to pronounce." Then Cohen L.J. said [1948] 2 KB 436,442: "With that statement of the law I respectfully agree. It was not brought to the attention of Lord Goddard C. J. and, if it had been, it is possible that his decision might have been different. Having regard to the facts in the present case I think we can treat it as one of misnomer and allow the plaintiff on terms to make the amendment for which she asks. The appeal will therefore, be allowed." Scott L.J. agreed. By parity of reasoning, I think it follows in this case that the mere omission of the word "Limited" is not fatal, in the sense that no person is described a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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