Bowmaker Finance Limited v Buck (ZR 79) [1967] ZMHC 30 (14 June 1967)

BOWMAKER FINANCE LIMITED v BUCK (1967) ZR 79 (HC) HIGH COURT EVANS J 14th JUNE 1967 Flynote and Headnote [1] Civil procedure - High Court Rules - Rules applicable. 5 The High Court Rules are not intended to be a complete code for the practice and procedure of the High Court. [2] Civil procedure - Parties - Substitution - Rules applicable. Orders 12, 14 and 16 of the High Court Rules are not intended 10 to be a complete code governing change of parties. [3] Civil procedure - Parties - Substitution - Order 16, rule 1, construed. Order 16, rule 1, does not permit a change of parties (but does permit a change in the rate of interest under a hire purchase agreement). 15 [4] Civil procedure - Parties - Substitution - Section 10, High Court Ordinance construed. There is no rule dealing specifically with permission to change parties. The High Court Rules are, therefore, "in default" within the meaning of section 10 of the High Court Ordinance, and the Rules of 20 the Supreme Court (England) may be referred to in order to supply the deficiency. [5] Civil procedure - Parties - Substitution - When permitted. Order 15, rule 6, of the Rules of the Supreme Court (England) covers substitution of parties. An amendment to add or substitute 25 party may be made when: (i) the other party can be safeguarded as to costs; (ii) the addition or substitution is necessary so that the question at issue can be determined; (iii) there has been a genuine mistake; 30 (iv) the identity of the party is not in doubt; (v) the party applying is acting bona fide; and (vi) no injustice will result to the other party. [6] Civil procedure - Parties - Substitution of plaintiff - Consent as condition precedent to amendment. When a new plaintiff is to be substituted, his written consent to 35 the substitution must be filed. Cases cited: [1] Tildesley v Harper (1878), 10 Ch. D. 393; 48 LJ Ch. 495; 39 LT 552; 27 WR 249. [2] Clarapede v Commercial Union Association (1883), 32 WR 262. 40 Statute and rules construed: ZAMBIA: High Court Ordinance (Cap. 3), s. 10. High Court Rules (Cap. 3 subsid.), Orders 12, 14 and 16. EVANS J ENGLAND: Rules of the Supreme Court, Order 15, Rule 6. Platt, for the plaintiff Carruthers, for the defendant 5 Judgment Evans J: On the 14th December, 1966, a writ was issued, entitled "Bowmaker Finance Limited (Plaintiff) and George Buck (Male) (Defendant)", claiming money due under a hire-purchase agreement (hereinafter called "the agreement") said to have been made 1967 ZR p80 between the parties on the 21st May, 1964, and further claiming interest at 13.85 per cent per 10 annum. The defendant entered an appearance on the 22nd March, 1967. The next proceeding in the action was the issue, on the 17th April, of a summons by the plaintiff's solicitors, for leave to amend the writ by changing the plaintiff's name to "Bowmaker (CA) (Pvt) Ltd" and by changing the said rate of interest to 17.54 per cent. The summons was 15 heard on the 21st April by District Registrar Ryan, who refused leave to amend. On the 25th April, notice of appeal against that refusal was filed, returnable on the 4th May, when the hearing of the appeal was adjourned, apparently of a judge's own motion, to the 1st June, and thence to the 7th June, when the appeal was heard. The 20 plaintiff's solicitors admittedly erred in naming the plaintiff as Bowmaker Finance Limited. They mistakenly assumed that the defendant's said agreement was with that company, which is what I may term the Bowmaker organisation's company incorporated in Zambia; whereas the agreement was in fact made between the defendant and Bookmaker 25 (CA) (Pvt) Ltd. the said organisation's company incorporated in Rhodesia. In effect, therefore, the amendment sought is the substitution of a different plaintiff - a different legal entity - as the plaintiff's solicitor conceded in argument before me. In brief, the plaintiff's argument is that Order 16, rule 1, of the High Court Rules permits the grant of leave to amend in this case; alternatively 30 and if Order 16, rule 1, does not so permit, then Order 15, rule 6, of the English Rules of the Supreme Court apply by virtue of section 10 of the High Court Ordinance (Cap. 3), and it is submitted that the amendment should be made because the plaintiff's mistake was a genuine one, the defendant has not been misled or put in doubt as to the identity of the 35 company intending to sue and he can be safeguarded as to costs. The defendant's argument in my view is lacking in merit on the facts and purely technical. He submits that the amendment cannot be made under our Order 16 and that, because that Order and Orders 12 and 14 are the only orders in the High Court Rules dealing with changes in 40 parties, these three Orders are intended to be a complete code upon the subject and that, therefore, our rules are not "in default" (section 10 of the High Court Ordinance) and accordingly one cannot pray in aid the English rules. The defendant does not allege that he has been misled or prejudiced or that he cannot be compensated by an order as to costs if 45 the amendments sought are made. 1967 ZR p81 EVANS J [1] Our High Court Rules are not intended to be a complete code governing the practice and procedure in this court: were they so intended, the words (in the said section 10) "and in default thereof in substantial conformity with the law and practice for the time being observed in England in the High Court of Justice" would be otiose. [2] In particular 5 I take the view that our Orders 12, 14 and 16 are not intended to be a complete code dealing with changes in parties. [3] I am satisfied that the amendment concerning the rate of interest may properly be made under our Order 16, rule 1, but I do not think that that rule, read as a whole, permits the substitution of a different plaintiff from the one named in the 10 writ. That rule is based on the old Order 28, rule 1, of the Rules of the Supreme Court, and, when that was in force, there was also operative in England Order 16, rule 2, which specifically authorised the addition or substitution of a plaintiff. [4] There is no similar specific rule here, and I consider that our rules are "in default" in this respect and that the 15 present Order 15, rule 6, of the Rules of the Supreme Court may properly be involved as the successor to the said Order 16, rule 2. [5] The note to that rule on page 158 of the Supreme Court Practice 1967, under the rubric "Adding or Substituting Plaintiffs", commences: "The tendency of modern practice is to allow the amendment where the defendant can be 20 safeguarded as to costs, and the addition or substitution is necessary to enable the question at issue to be determined." The following is an extract from page 163 of the same book, under the rubric "Mistake as to Plaintiff or Defendant - Misnomer or Substitution": "The question is no longer whether the amendment sought is the 25 correction of a mere misnomer or the substitution of a new party, but whether in all the circumstances of the case the mistake was genuine and was not misleading or raised any reasonable doubt as to the identity of the proposed plaintiff or defendant. Each case must depend upon its own facts. The principles apply equally to 30 a plaintiff and a defendant." Generally, as to the giving of leave to amend, I refer to the oft quoted and approved words of Bramwell, LJ, in Tildesley v Harper [1]: "My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, 35 by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise." Again, Brett, M. R, in Clarapede v Commercial Union Association [2] at page 263, said (and his words have been quoted with approval time and again): 40 "However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs." In all the circumstances, I am abundantly satisfied that the plaintiff 45 should be given leave to amend in both respects as prayed. The position might have been otherwise if the application for leave had been made 1967 ZR p82 EVANS J after the expiry of any relevant period of limitation (although leave can be given in such circumstances under Order 20, rule 5, of the Rules of the Supreme Court), but it is, I think, common ground in this case that the appropriate limitation period under section 27 of the Hire Purchase Act 5 (Cap. AL 5) had not expired when the writ was issued or when the application to amend was made to the learned District Registrar, since when time has not run against the plaintiff. [6] Since the plaintiff has successfully invoked Order 15, rule 6, of the Rules of the Supreme Court, it seems that it cannot actually make the 10 amendment in respect of its name until it has filed the written consent of Bowmaker (CA) (Pvt) Ltd to be substituted as plaintiff, because para. (2) of rule 6 concludes with the words: "but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised", and the notes on page 159 of the Supreme Court 15 Practice 1967, under the rubric "Consent of Person added as Plaintiff", state: "The Rule appears to apply if the new plaintiff is substituted under rule 2." I allow this appeal, but I order that the amendments be not made until the said consent has been filed and until all the costs (to be taxed in 20 default of agreement) occasioned by the amendments have been paid by the plaintiff. Subject to argument, I propose to make no order as to the costs of this appeal. Appeal allowed 1967 ZR p82