Adcamp LLP (formerly known as Pitmans LLP) v Office Properties PL Limited & Ors [2026] EWCA Civ 50
In two appeals heard together, the Court of Appeal considered the issue of the correct interpretation of CPR rule 19.6(3)(b), which empowers the court to add or substitute a party after the expiration of a relevant limitation period where it is necessary to do so because “the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant”.
The Court of Appeal overturned the first instance decisions, holding that the gateway in CPR rule 19.6(3)(b) did not permit the substitution and/or addition of the Appellants as defendants in two professional negligence cases.
However, the Lord Justices alluded to the need for a reconsideration by the Supreme Court of previous Court of Appeal authority on the interpretation of CPR rule 19.6(3)(a), which provides for a new party to be substituted for a party who was named in the claim form in mistake for the new party.
Background
In 2018, the partnership business of a firm of solicitors then known as Pitmans LLP (“Pitmans”) was acquired by Birchham Dyson Bell LLP, which then changed its name to BDB Pitmans LLP (“BDB”). There was, however, no novation of liabilities from Pitmans to BDB.
Two different sets of claimants issued initial claims against BDB in the mistaken belief that such a novation of liabilities had taken place.
Both the first appeal (the “Office Properties Appeal”)and the second appeal (the“Lee Appeal”) both concerned the question of whether the respective claimants could subsequently add Pitmans (then known as Adcamp LLP) as a defendant.
The relevant limitation period for a claim against Pitmans was current at the time of issue of the original claim form (in each case naming BDB as the defendant). However, the limitation period had expired by the time the amendments were made to add, then substitute, Pitmans as defendant in the Office Properties Appeal, and by the time the application was made to substitute Pitmans as a defendant in the Lee Appeal.
The Limitation Act 1980 and the relevant rules
S.35 Limitation Act
S.35 of the Limitation Act makes provisions for new claims made in the course of an existing action.
S.35(1)(b) provides that any new claim made in the course of an existing action shall be deemed to be a separate action and to have been commenced (in the case of new claims other than by way of third party proceedings) on the same date as the original action.
By s.35(5), the condition for adding or substituting a party, in the case of a claim involving a new party, is that the addition or substitution is “necessary for the determination of the original action”. By s.35(6), the addition or substitution of a party is not to be regarded as necessary unless either:
“(a) the new party is substituted for a party whose name was given in any claim made in the original action in mistake for the new party’s name; (referred to by the Court of Appeal as the “first gateway”); or
(b) any claim already made in the original action cannot be maintained by or against an existing party unless the new party is joined or substituted as plaintiff or defendant in that action (referred to by the Court of Appeal as the “second gateway”).
CPR 19.6
The rules of court relating to the addition or substitution of new parties after the expiry of a relevant limitation period are found in CPR rule 19.6. By rule 19.6(3), the addition or substitution of a party is only necessary if the court is satisfied that:
“(a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party;
(b) the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; […]
Grounds of Appeal
The grounds of appeal in the Office Properties Appeal were that the judge erred in refusing to set aside the joinder of Pitmans in particular because he (i) misinterpreted s.35(6)(b) of the 1980 Act; (ii) failed to give appropriate weight to the reasoning of the Court of Appeal in the case of Nemeti v Sabre Insurance Co Ltd [2013] EWCA Civ 1555 (“Nemeti”); and (iii) concluded that the claim to be made against Pitmans was that previously made against the party (BDB) against whom the action has been discontinued.
The single ground of appeal in the Lee Appeal is that the deputy judge erred in law in holding that substitution of Pitmans for BDB would be permitted under the second gateway.
All parties agreed that it was not open to the Respondents to argue that the first gateway applied due to the binding authority that “mistake” for the purposes of the gateway must be one of the name of a party rather than its identity Adelson V Associated Newspapers [2007] EWCA Civ 701.
Mr Carpenter KC, for the Appellants, argued that there are two limbs to the requirement imposed by the second gateway, neither of which is met in these cases:
- That it must be demonstrated that without the substitution of Pitmans, the existing claim against BDB could not be determined on its merits; and
- That the claims before and after substitution must be the same, in every material respect.
The Decision
The question for the Court of Appeal was whether, under the second gateway, the claim already made in each of the actions could not properly be carried on “by or against the original party” unless Pitmans was added or substituted as defendant.
The Court of Appeal considered two limbs to the question, as follows.
Limb 1: whether it is necessary to show that unless the new party is substituted the original claim cannot properly be made “on its merits”
S.35(5)(b) of the Act imposes a condition that the addition or substitution or a claim involving a new party must be “necessary for the determination of the original action”. In the 1980 Act, necessity is confined to a case where the original action cannot be “maintained” without the addition or substitution, whereas in the rule it is confined to cases where the original action “cannot be properly carried on”.
The Court rejected the Appellants’ argument that the above formulation is not intended to capture all situations where the original claim will fail, including because it is bad on its merits, and that it was instead only to capture cases where the claim could not be determined on the merits, because of some constitutional or procedural issue with the claim.
Zacaroli LJ stated that such submission “flies in the face” of the Court of Appeal’s rejection, in Nemeti, of the attempt by the first instance judge’s attempt to put such a gloss on the words. The Court of Appeal said there was a “lack of utility” in trying to draw such a distinction, and that the real question arises under the second limb.
Limb 2: the meaning of “the claim”, and the extent to which the original and new claim must be the same
The Respondents did not dispute that to comply with the second gateway the original and new claim must be the same. The disagreement between the parties was what is meant by the “same” claim. The respondents contended that it refers to the facts which give rise to a claim for damages against Pitmans, excluding the additional facts necessary to demonstrate that BDB had assumed liability for the claim. The Appellants contend that it refers to all the facts which give rise to a claim against BDB, including therefore the facts establishing BDB’s liability for Pitmans’ negligence.
The Court of Appeal said the question is whether the two claims are in substance the same, not whether every pleaded fact is the same. Put another way, the second gateway can only be invoked where the “essential facts which have to be averred” are the same.
Zacharoli LJ distinguished the current facts from a previous line of authority in Insolvency Act proceedings where the distinctive feature was that the identity of the person in whom the claim was vested was the same before and after substitution, namely the company itself. The interposition of the liquidator as named claimant was pursuant to a purely procedural provision.
The Court of Appeal also rejected the respondents’ attempt to construe the second gateway in such a way that it covers the type of mistake which is deliberately excluded from the first gateway. Whilst sympathetic to the incoherence of the result, the Court of Appeal noted that according to binding authority in Adelson, the drafter of the 1980 Act deliberately limited the circumstances in which a mistake can be relied on to where it is a mistake as to name not identity.
Comment
As the Court of Appeal acknowledged, it is difficult to foresee a circumstance in which CPR19.6(3)(b) could be successfully relied upon to substitute a new defendant.
CPR19.6(3)(a) can still be used in limited circumstances where the claimant has made a mistake. However, due to the Court of Appeal’s decision in Adelson, the mistake must be one of fact as to the name of a party, not where there has been a mistake as to their identity.
The Court of Appeal recognised the incoherence, but noted that the court is not given a general discretion to waive what would otherwise be the impact of the 1980 Act in the interest of justice or otherwise. The Court concluded that “if it needs putting right, it is for the Supreme Court to do so”.