In battle, it is somewhat difficult to advance an attack when your soldiers are mistaken as to who is their adversary. So, too, in law, where one’s lawyer is mistaken as to whom (or who) their claim is against.

Most of us are aware that Bermuda operates under an inherited structure of law widely known as the Common Law system.

Within this system, attorneys take an adversarial approach in the way they represent their clients. Hence, the case is always described as: A v B, A versus B, or A against B. It is a contest; adversarially seeking a winner and a loser.

Accordingly, the analogy of battle is aptly applied — if one does not know who his adversary is, surely, he has already lost.

This concept could not have been more clearly captioned than in a recent judgment from Bermuda’s Supreme Court Chief Justice Ian Kawaley.

On the face of it, the Plaintiff engaged a law firm (the “Partnership”) to undertake a series of legal transactions.

Somewhere, during the course of the transactions, things went awry, leaving the Plaintiff aggrieved at the Partnership he had hired. He sought subsequent counsel to settle his grievance by suing the Partnership.

In 2013, the Plaintiff’s counsel filed a Generally Endorsed Writ of Summons (the “Writ”) against the Partnership. The Writ was filed just as the time allotted for him to sue the Partnership was coming to an end, which would have been perfectly fine had his counsel: a) named the correct Defendants in the Writ, and b) served the Writ appropriately.

In 2009, the Bermuda Bar Act was amended to allow law firms to incorporate themselves and become limited liability companies.

The Partnership that the Plaintiff had grievances against incorporated in December 2009.

This had the effect of altering the legal identity of the Partnership to that of a limited liability company (the “Company”). And, given that companies are regarded as separate legal entities, under the law, the Partnership effectively ceased to exist and was replaced by the Company.

However, in his Writ, the Plaintiff’s attorneys named the Company as the Defendant, instead of naming the Partnership with which his grievances lay.

Of course, the name of the Partnership and the name of the Company bore the same name, but for the word “Limited” appearing in the title of the Company.

Naturally, when counsel for the Company raised this point with the Court — ie, that the Plaintiff’s attorneys had named the wrong Defendant — counsel for the Plaintiff argued that it was purely a mistake in the name.

However, Chief Justice Kawaley found, among other things, that the mistake went beyond that of nomenclature (the name), and held that the wrong defendants had been named and, therefore, the Plaintiff’s suit would not be successful.

In the same case, the Plaintiff’s attorneys named two other Defendants. However, in serving the Writ on the third Defendant (a Trust), the Plaintiff failed to deliver the Writ at the Trust’s Registered Office, thereby failing to effect proper service. Accordingly, counsel for the Trust successfully argued that service on the Trust was invalid and the Plaintiff’s claim should fail.

Because the Writ had been filed on the expiration of the time limit within which a claim against all three Defendants could have been brought, the Plaintiff was not allowed to correct the mistakes.

That has meant that the “battle” is now engaged against just one defendant, both to the disadvantage of the Plaintiff and of that Defendant.

The moral of this tale is: know who your “battle” is against, and make sure they know about it, or you will have lost before you’ve begun!

•Paul Wilson is an associate at Trott & Duncan law firm