Learning Outcomes
This article outlines the rules and procedures under the Civil Procedure Rules (CPR) Part 19 concerning the addition, removal, and substitution of parties to a civil claim. It explains the court's discretion in managing parties and the specific requirements when making such changes, particularly concerning limitation periods. After studying this article, you should understand the key principles governing changes to parties and be able to apply them to SQE1 assessment scenarios. You should also be able to identify who may make an application to change parties, the documentation and evidence typically required under CPR Part 23, the consent requirement for adding claimants, and how the stricter “necessary” test under CPR 19.5 operates (including the significance of genuine mistake and transfer of interest or liability). Finally, you should be confident in addressing case-management consequences (including costs and directions), and dealing with service (including where a new defendant is out of the jurisdiction).
SQE1 Syllabus
For SQE1, you are required to understand the procedural rules for altering the parties to a claim after proceedings have commenced, applying the provisions of CPR Part 19 effectively, with a focus on the following syllabus points:
- The court's general powers to add, remove or substitute parties.
- The procedure for making an application to change parties.
- The specific considerations and stricter requirements when seeking to change parties after the expiry of a relevant limitation period.
- The concept of the court's discretion and the overriding objective in managing parties.
- The written consent requirement when adding or substituting a claimant (CPR 19.4(4)).
- Who may apply (an existing party or a person wishing to become a party), and the need for supporting evidence and draft amended statements of case.
- The relationship between CPR 19.5 and the Limitation Act 1980 (including the “mistake” and “claim cannot properly be carried on” limbs).
- Practical service considerations where the proposed party is outside England and Wales (including permission, methods, and time limits under CPR Part 6).
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Under which part of the Civil Procedure Rules are the rules for adding, removing, and substituting parties primarily found?
- CPR Part 17
- CPR Part 19
- CPR Part 20
- CPR Part 23
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Can a claimant be added to existing proceedings after the relevant limitation period has expired?
- Yes, with the consent of all existing parties.
- Yes, but only with the court's permission and if specific conditions under CPR 19.5 are met.
- No, adding a claimant is never possible after the limitation period.
- No, unless the defendant agrees in writing.
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Which of the following is a key consideration for the court when deciding whether to add a new party under CPR 19.2(2)?
- Whether the new party can afford legal representation.
- Whether adding the new party is desirable to resolve all matters in dispute.
- Whether the new party has previously been involved in litigation.
- Whether the existing parties have sufficient funds to cover potential costs.
Introduction
Ensuring the correct parties are involved in a claim is fundamental to civil litigation. Sometimes, circumstances change after proceedings have started, necessitating the addition, removal, or substitution of a party. CPR Part 19 provides the court with powers to manage the parties involved in a claim, aiming to ensure all matters in dispute can be resolved effectively and justly. This article explores these powers and the procedures involved.
Key Term: Parties
The individuals, companies, or other legal entities who are directly involved in a legal claim as claimants, defendants, or other participants (e.g., Part 20 parties).
The court's approach is guided by the overriding objective (CPR 1.1) to deal with cases justly and at proportionate cost. This includes ensuring that cases are managed efficiently and that all necessary persons are party to the proceedings to enable the court to resolve the real issues. A central practical concern is identifying the correct legal entity early, particularly where businesses operate under trading names, or where a corporate group contains several similarly named entities. Misidentifying a defendant can necessitate corrective applications under Part 19, with potential costs consequences and time implications.
ADDING, REMOVING, AND SUBSTITUTING PARTIES: CPR PART 19
CPR Part 19 contains the main rules governing changes to parties after proceedings have commenced. The court has wide discretionary powers under this part. These powers are exercised in line with the overriding objective and, crucially, the stage of proceedings (for example, before or after limitation has expired), which affects the applicable tests.
Adding Parties (CPR 19.2(2))
The court may order a person to be added as a new party to the proceedings.
Key Term: Joinder
The process of adding a person as a party (claimant or defendant) to existing legal proceedings.
This power can be exercised if either:
(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.
The term 'desirable' gives the court flexibility, but the addition must be linked to resolving the substantive issues. An application is usually made by an existing party, supported by evidence explaining why the addition is desirable. In practice, a claimant seeking to add a co-defendant will explain the connected issue (e.g., concurrent liability) and why resolving it within the existing proceedings promotes efficiency and proportionality. If joinder is sought to add a claimant, written consent of the person to be added must be filed (see CPR 19.4(4)).
Where a proposed defendant is domiciled or located outside England and Wales, adding them may require follow-on steps under CPR Part 6 to obtain permission to serve out of the jurisdiction (or to use a permitted gateway), and the time limit for service will be six months from issue for service out, rather than four months for service within the jurisdiction.
Worked Example 1.1
Scenario: P sues D1 (a driver) for negligence following a road traffic accident. During disclosure, evidence emerges suggesting D2 (another driver) may also have been partially at fault for the collision. P wishes to add D2 to the claim. Assume the limitation period has not expired.
Question: On what basis might the court add D2?
Answer:
The court might add D2 under CPR 19.2(2)(b). There is an issue (liability for the accident) involving the proposed new party (D2) and an existing party (P) which is connected to the matters in dispute (D1's liability). Adding D2 is likely desirable so the court can resolve the issue of liability concerning all potentially responsible drivers in one set of proceedings.
Worked Example 1.2
Scenario: C sues “ABC Builders Ltd” for negligence in installing defective windows. After issuing, C learns that the windows were in fact supplied and installed by “ABC Windows Ltd”, a sister company, and the original defendant neither contracted with C nor performed the work. Limitation has not expired.
Question: Can C add ABC Windows Ltd as a defendant within the existing claim?
Answer:
Yes, the court is likely to permit joinder under CPR 19.2(2)(a) or (b). Adding ABC Windows Ltd is desirable to resolve all matters in dispute and because there is a connected issue (installation and liability) involving ABC Windows Ltd and C. Joinder addresses the real dispute efficiently and avoids parallel proceedings. C should file evidence explaining the corporate structure and the factual basis for joinder.
Removing Parties (CPR 19.2(3))
The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings.
Key Term: Misjoinder
The incorrect inclusion of a person as a party to legal proceedings, where they should not have been joined.
This might occur if a party has been incorrectly joined (misjoinder) or if their involvement is no longer necessary (e.g., due to settlement or a change in the issues). Removal can streamline proceedings and reduce unnecessary costs. If a defendant has settled and there is no remaining issue related to them (for example, no contribution claim), the court may approve their removal, often with an order dealing with costs thrown away and directions to tidy up the pleadings.
Worked Example 1.3
Scenario: C sues D1 (main contractor) and D2 (architect) for defective works. During the proceedings, C settles fully with D2, and D1 does not pursue any contribution claim against D2.
Question: Should D2 remain a party?
Answer:
No. Under CPR 19.2(3), it is not desirable for D2 to remain a party once settlement is reached and no live issue remains. The court may order D2 to cease to be a party, adjust directions, and deal with any costs consequences of removal.
Substituting Parties (CPR 19.2(4))
Substitution involves replacing an existing party with a new party. The court may order this if:
(a) the existing party’s interest or liability has passed to the new party (e.g., due to death, bankruptcy, or assignment); and
(b) it is desirable to substitute the new party so that the court can resolve the matters in dispute.
Key Term: Substitution
The replacement of one party in legal proceedings with another party, typically because the interest or liability has transferred.
Common scenarios include substituting personal representatives when a claimant dies, substituting a trustee in bankruptcy, or replacing a company where its rights or obligations have been assigned. Substitution ensures the proceedings continue against or by the party with the current legal interest, avoiding the need to issue fresh proceedings.
Worked Example 1.4
Scenario: C (an individual claimant) dies during ongoing proceedings for personal injury. A grant of probate is obtained in favour of C’s daughter as personal representative.
Question: How should the proceedings continue?
Answer:
The court may order substitution under CPR 19.2(4), replacing C with the personal representative. Substitution is desirable because the claim survives to the estate and the interest has passed. Written consent for a claimant being added/substituted must be filed, and directions will follow for amending and serving the statements of case.
Procedure for Changing Parties
Generally, an application to add, remove, or substitute a party must be made under CPR Part 23, supported by evidence setting out the reasons for the change. The application notice must be served on all existing parties and any person proposed to be added or substituted.
In practice:
- The applicant should file an application notice, a draft order, and a witness statement explaining the factual background and why the test under CPR 19.2 or 19.5 is satisfied.
- Draft amended statements of case (e.g., amended claim form and particulars of claim) should be prepared for the court to approve, reflecting the change and clarifying allegations against or by the new party.
- Upon order, the amended claim form and statements of case must be served on the newly added or substituted party, who will then have the usual time to acknowledge service and file a defence.
- Where the proposed party is outside England and Wales, steps under CPR Part 6 must be addressed (permission, service method, and time limits); if service out is needed, ensure you engage the appropriate gateway and comply with any local service rules via the foreign authority or other authorised method.
- The court often gives directions dealing with consequential matters, including a revised timetable, disclosure adjustments, and case management to avoid prejudice and keep the proceedings proportionate.
Exam Warning
Pay close attention to the specific requirements for adding claimants versus defendants, especially regarding consent. CPR 19.4(4) states that no person may be added or substituted as a claimant unless their written consent is filed with the court.
A further practical point: costs can follow these applications. If a party has caused misjoinder through error, the court may order them to pay the costs of the application and any “costs thrown away” by others.
Worked Example 1.5
Scenario: A claimant company adds a second claimant (its insurer exercising subrogation rights) after discovering the insurance policy requires the insurer to be joined to recover indemnified losses. Limitation has not expired.
Question: What procedural condition must be satisfied?
Answer:
The insurer’s written consent must be filed with the court (CPR 19.4(4)). The application should include evidence explaining the subrogation basis and why joinder is desirable to resolve all matters in dispute.
CHANGES AFTER THE LIMITATION PERIOD (CPR 19.5)
Adding or substituting a party after the relevant limitation period has expired is more difficult and is governed by the specific, stricter requirements of CPR 19.5. The court's permission is always required. CPR 19.5 operates alongside the Limitation Act 1980, and the policy is to allow late changes only in defined circumstances that avoid injustice (for example, correcting a genuine mistake as to name or identity).
An essential threshold is that the limitation period must have been current when the proceedings were started. If the original claim form was itself issued out of time, Part 19.5 cannot assist.
Adding or Substituting a Claimant After Limitation
The court may only add or substitute a claimant after the limitation period has expired if:
(a) the limitation period was current when the proceedings were started; and
(b) the addition or substitution is necessary.
Substitution is deemed 'necessary' only if the new party is to be substituted for a party named in the claim form in mistake. Addition is 'necessary' only if the claim cannot properly be carried on by or against the original party unless the new party is added.
“Necessary” is a stricter test than “desirable”. It will not suffice that adding the party would be convenient or helpful; it must be essential to carry on the claim or correct a genuine mistake. A genuine mistake may include misnomer (wrong name for the correct entity) or mistaken identity (suing the wrong entity altogether) where the error was honest and the correct party was identifiable from the original documents.
If permission is granted under CPR 19.5 in respect of a claimant, the change will generally take effect as if the new party had been named when the claim was issued, for limitation purposes, avoiding prejudice caused by the expiry in the interim.
Adding or Substituting a Defendant After Limitation
The court may only add or substitute a defendant after the limitation period has expired if:
(a) the limitation period was current when the proceedings were started; and
(b) the addition or substitution is necessary.
For defendants, 'necessary' means one of the following conditions applies:
- The new party is substituted for a party named in the claim form in mistake for the new party.
- The claim cannot properly be carried on by or against the original party unless the new party is added or substituted as defendant.
- The original party has died or had a bankruptcy order made against them and their interest or liability has passed to the new party.
These categories are exhaustive. They do not permit addition simply because a claimant discovers a better defendant after expiry, unless the claim cannot properly be carried on without them, or the initial naming was by mistake. Evidence of mistake should be clear and supported, for example showing why the naming error occurred (similar corporate names, internal document references, pre-action correspondence indicating the correct entity), and that it was genuine.
Key Term: Limitation Period
The statutory time limit within which legal proceedings must be commenced. Failure to start a claim within this period generally provides the defendant with a complete defence.
Worked Example 1.6
Scenario: Claimant Ltd issues proceedings against ABC Builders Ltd for defective construction work just before the limitation period expires. It later transpires that the work was actually carried out by ABC Construction Ltd, a related but separate company, and naming ABC Builders Ltd was a genuine mistake.
Question: Can Claimant Ltd substitute ABC Construction Ltd as the defendant after the limitation period has expired?
Answer:
Yes, potentially. Under CPR 19.5(3)(a), the court may permit substitution if the limitation period was current when proceedings started (which it was) and the substitution is necessary because the new party (ABC Construction Ltd) is being substituted for a party named in mistake (ABC Builders Ltd). The claimant would need to apply to the court and provide evidence of the mistake.
Worked Example 1.7
Scenario: C sues D Ltd for negligent electrical works. After expiry of limitation, C discovers the works were performed by E Ltd, a subcontractor, and that D Ltd’s role was only supply of materials.
Question: Can E Ltd be added after limitation?
Answer:
Only if CPR 19.5’s necessity test is satisfied. If the claim cannot properly be carried on against D Ltd alone (for example, if the pleaded negligence concerns workmanship exclusively attributable to E Ltd), addition/substitution of E Ltd may be “necessary”. If, however, the claim can proceed against D Ltd (e.g., on a different pleaded basis, such as supply or vicarious liability), addition may fail. The application must show that, without joining E Ltd, the claim cannot properly be carried on.
Worked Example 1.8
Scenario: A claimant issues in time against an individual defendant for defamation. After limitation expires, the defendant is adjudged bankrupt and the claim must proceed against the trustee in bankruptcy for certain relief.
Question: What is the correct approach?
Answer:
CPR 19.5 permits substitution where the original party has had a bankruptcy order made and their interest or liability has passed to a new party. Substitution is “necessary” under the rule, and the court may order the trustee to be substituted to allow the court to resolve the dispute.
Revision Tip
When faced with a scenario involving changing parties after limitation, always identify: (1) whether the original claim was issued in time, and (2) which specific limb of CPR 19.5(2) (for claimants) or CPR 19.5(3) (for defendants) applies. The mistake category (CPR 19.5(3)(a)) is frequently tested.
In addition, be clear whether the change sought is an addition or a substitution. Substitution generally involves replacing the wrongly named party with the correct one or replacing a party whose interest has passed. Addition implies that the original party remains, and the claim cannot properly be carried on unless the added party joins. The “necessary” test is applied strictly.
Practical Considerations and Case Management
- Evidence: Prepare a detailed witness statement explaining the history, how the error or change came to light, why the test under CPR 19.2 or 19.5 is satisfied, and exhibit key documents (correspondence, invoices, contracts, company searches).
- Drafting: Provide clean draft amended statements of case to ensure clarity about allegations as against the new party; this supports the court’s case-management aims.
- Directions: Expect the court to give consequential directions (service on the new party, revised timetables, disclosure adjustments, and, where appropriate, permission to rely on additional expert evidence if joinder changes issues significantly).
- Costs: The court retains broad discretion over costs. A party causing misjoinder or late applications may face adverse costs. Conversely, if joinder streamlines resolution, the court may treat the costs as “in the case”.
- Service: Ensure prompt and valid service of the amended claim and particulars on the new party; if service out is needed, comply with CPR 6.32/6.33 and PD 6B, noting the six-month time limit for completing the relevant step to serve out.
Worked Example 1.9
Scenario: A claimant issues in time against X Ltd. After expiry, C discovers the invoice and site reports are in the name of “X Services Ltd”, and all pre-action correspondence from X’s brokers referred to “X Services”. The claimant seeks substitution.
Question: How should the application be approached?
Answer:
The application should rely on CPR 19.5(3)(a) and show a genuine mistake, supported by company searches, invoices, and broker correspondence. The court may treat this as necessary substitution due to mistaken identity or misnomer. Draft amended particulars identifying “X Services Ltd” clearly and serve the amended claim promptly if the order is granted.
Key Point Checklist
This article has covered the following key knowledge points:
- CPR Part 19 governs the addition, removal, and substitution of parties after proceedings have commenced.
- The court has discretion, guided by the overriding objective and whether the change is desirable for resolving the issues.
- An application under CPR Part 23 is usually required, supported by evidence.
- Adding or substituting a claimant requires their written consent.
- Stricter rules under CPR 19.5 apply if the relevant limitation period has expired; the change must be 'necessary' under specific defined circumstances (e.g., mistake, claim cannot be carried on, transfer of interest/liability).
- Distinguish clearly between “joinder” (addition) and “substitution” and between the pre‑limitation “desirable” test (CPR 19.2) and post‑limitation “necessary” test (CPR 19.5).
- Consider service and jurisdiction issues for newly added defendants, including permission and methods for service out of the jurisdiction and the six‑month time limit for the relevant service step.
- Expect consequential directions and cost orders; ensure draft amended pleadings and evidence are prepared to facilitate efficient case management.
Key Terms and Concepts
- Parties
- Joinder
- Misjoinder
- Substitution
- Limitation Period