PI Brief Update

Too Late to the Party? The Post-limitation substitutions under CPR 19.6(3)(b) - Michael Brooks Reid, Temple Garden Chambers

1905/26. The next episode of my series on the gripping topic of substituting a party after the expiry of limitation, this article looks at the Court of Appeal decision in Adcamp LLP v Office Properties PL Ltd (in liquidation) and Ors; BDB Pitmans LLP v Lee [2026] EWCA Civ 50, concerning the “second gateway” under CPR 19.6(3)(b).

In very brief terms, the appeals arose from professional negligence claims in respect of advice given by Pitmans LLP (“Pitmans”). Pitmans was subsequently acquired by BDB Pitmans LLP (“BDB”), and the claimants issued against BDB on the mistaken basis that BDB had assumed Pitman’s liabilities. Upon realising their error, the claimants attempted to substitute Pitmans as defendant (under its new name, Adcamp), by which time limitation had expired.

The law

CPR 19.6(3)(b) permits post‑limitation addition or substitution only where “the claim cannot properly be carried on by or against the original party unless the new party is added or substituted”. Underpinning that rule is s.35 of the Limitation Act 1980, which requires that a claim “cannot be maintained by or against an existing party.”

It was common ground that the claimants could not rely on the “first gateway”, CPR 19.6(3)(a), which applies where the original party was named “in mistake for the new party.” Binding Court of Appeal authority (Adelson v Associated Newspapers Ltd [2007] EWCA Civ 701 (“Adelson”)) confined that gateway to mistakes as to the name of a party, not their identity.

On the second gateway, Court of Appeal authority had established that substitution under CPR 19.6(3)(b) is permissible only where: (1) a claim made in the original action is not sustainable by or against the existing party, and (2) the same claim will be carried on by or against the new party.

High Court

The deputy High Court judges drew on obiter reasoning of Leggatt J (as he then was) in Insight Group Ltd v Kingston Smith [2012] EWHC 3644 (QB) to find that the substitutions were permissible. They concluded that the claim as to duty, breach and loss was identical before and after substitution; the additional facts pleaded to establish BDB’s liability did not change the essential character of the claim.

Court of Appeal

The Court of Appeal (Zacaroli, Phillips and Singh LJJ) allowed the appeals, departing from Leggatt J’s obiter comments.

The appellant’s case consisted of two limbs. Under the first limb, the appellants had argued that the phrase “cannot properly be carried on” was directed at procedural rather than substantive defects in the action, such that the claim was incapable of being determined on the merits. The Court rejected this argument, finding that a claim that was bound to fail on its merits would suffice.

The second limb was the question of whether the claims before and after substitution were “the same”. The respondents contended that they were. On their case, the identity of claim should be assessed by reference to the core allegations of duty, breach and loss (the facts giving rise to liability against Pitmans) and simply stripping out the additional facts (the alleged assumption of liability) pleaded solely to establish BDB’s position as successor in law.

The Court of Appeal disagreed, and the appellants succeeded on this limb.

Two previous Court of Appeal authorities Parkinson Engineering Services plc (in liquidation) v Swan [2009] EWCA Civ 1366 (“Parkinson”) and Irwin v Lynch [2010] EWCA Civ 1153 (“Irwin”), were distinguished. In those cases, the cause of action remained vested in the same entity throughout; the substitution of liquidator for company or company for administrator involved no substantive change to the identity of the person against whom the claim was asserted. By contrast, substitution of Pitmans for BDB involved a change to that identity that not merely procedural but one that required a different legal route to liability.

In reaching its conclusion, the Court identified two anomalies that weighed against the respondents’ construction of the second gateway. First, since mistake is not a precondition of the second gateway (unlike the first), the respondents’ approach would allow claimants who made a deliberate tactical choice to sue the wrong defendant to invoke the gateway if the original claim failed. Second, the respondents’ analysis worked asymmetrically. In a counterfactual scenario where A sues B in the mistaken belief that A’s liability has notbeen transferred from B to C, additional facts would need to be pleaded to establish C’s liability upon substitution. Those claims clearly could not be said to be “the same” and there was no coherent basis for a distinction with the present claims.

Comment

This decision sits alongside Adelson to give rise to a striking anomaly: Claimants who make a mistake of fact — wrongly believing that it was the originally sued party that gave the negligent advice — may invoke the first gateway. On the other hand, claimants who make a mistake of law — believing that the originally sued party assumed the liability of the negligent company — are excluded from both gateways. The Court recognised this anomaly and appeared to suggest that the first gateway may have been too narrowly construed in Adelson.  The claimants reserved the right to argue to overturn Adelson before the Supreme Court – whether that court will take the opportunity to widen the scope of the first gateway, thereby possibly rendering the present decision of less practical significance, remains to be seen.

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