The appellant pedestrian was struck by a motor vehicle and commenced an action against 'John Doe' within the limitation period.
After the limitation period expired, the appellant successfully moved to substitute the respondent's name for 'John Doe' on the basis of misnomer.
The respondent subsequently brought a successful motion for summary judgment dismissing the action on the basis that the limitation period had expired and the appellant had not exercised due diligence.
The Court of Appeal allowed the appeal, holding that where a true defendant would know on reading the statement of claim that they were the intended defendant, due diligence is not required, and the summary judgment motion was an impermissible indirect attack on the misnomer order.
