Jenkins v JCP Solicitors Ltd

For substitution after expiry of a limitation period, the relevant mistake is one as to the defendant’s name, rather than the defendant’s identity or legal liability. The court should determine the nature of the mistake from the whole evidence, giving particular weight to objective contemporaneous documents. A possible claim against the claimant’s advisers is not an adequate substitute for the original claim. When exercising the discretion to permit substitution, the court should apply the overriding objective and consider the merits only where it is clear that the claim has no real prospect of success. Relation back cannot justify adding or substituting a party where the claim was arguably already statute-barred when proceedings began.

The claimant appealed against a District Judge’s order dismissing his application to substitute John Collins & Partners LLP for JCP Solicitors Limited and striking out his negligence claim. The advice concerned matrimonial finance and had allegedly been given in October or November 2011 by the LLP, which traded as JCP Solicitors. The Company was incorporated in 2014.

The claimant also sought permission to withdraw a limitation concession and to amend the appeal to include advice allegedly given in April 2011. The central issues were whether the original defendant had been named by mistake, whether substitution should be permitted, and whether the additional April 2011 claim could be added in circumstances where limitation was arguably expired.

1. Withdrawal of concession. The claimant was permitted to withdraw the concession that the April 2011 claim was statute-barred. The issue was a pure point of law, raised at an early stage, on which both parties had a fair opportunity to make submissions. The respondents suffered no prejudice and could be protected in costs.
2. Mistake as to name. Under CPR 19.5, the court had jurisdiction to substitute the LLP. The claimant intended to sue the entity that had provided the 2011 advice, but issued the claim against the Company. The contemporaneous correspondence, standstill agreement and Particulars of Claim showed that intention. Knowledge, or supposed knowledge, that the Company was incorporated only in 2014 did not determine the nature of the mistake. The mistake was therefore one as to name, not identity.
3. Discretion. The District Judge had applied the wrong criteria. Applying the guidance in Insight Group Ltd v Kingston Smith [2014] 1 WLR 1448, the court considered the overriding objective, the absence of prejudice and the availability of a fair trial. A potential remedy against the claimant’s solicitors was not an adequate substitute. The merits were not a proper reason to refuse substitution because the claim was not shown to have no real prospect of success. Substitution was accordingly allowed for the October or November 2011 advice.
4. April 2011 advice. Permission was given to raise amended grounds, but the application to add or substitute the LLP in respect of the April advice was refused. Under the Limitation Act 1980 and CPR 19.5, relation back could not assist if that claim was statute-barred when proceedings were issued. Without finally deciding the limitation issue, the respondents had an arguable case that it was statute-barred. Following Chandra v Brooke North [2013] EWCA Civ 1559, amendment was therefore refused.

The appeal was allowed in part. The claimant was permitted to withdraw the concession and substitution was permitted for the October or November 2011 advice, but not for the April 2011 advice.

1. High Court (Queen's Bench Division): Allowed the appeal against the District Judge’s order to the extent of permitting substitution of John Collins & Partners LLP for JCP Solicitors Limited in respect of the October or November 2011 advice. Refused substitution or addition concerning the April 2011 advice.
2. District Judge Osborne: By order dated 10 September 2018, dismissed the substitution application and struck out the claim against JCP Solicitors Limited.