The Tintometer Limited & Anor v Pitmans (a firm) & Anor

A defendant joined to proceedings after a procedural order was made cannot ordinarily invoke CPR r. 3.3(5) to set that order aside. That safeguard is confined to parties to the order. A later-added party may instead rely, where appropriate, on the court’s power to vary or revoke an order under CPR r. 3.1(7).

A written agreement under CPR r. 2.11 varying the time for service under CPR r. 7.5 also varies the period referred to in CPR r. 7.6(2). A technical failure to identify an application as a jurisdiction challenge may be corrected under CPR r. 3.10 where the defendant’s intention is clear. Substitution of the correct defendant should not be disallowed where the mistake is genuine, the claim has been pursued with reasonable diligence, and no real prejudice is shown.

The claimants brought a professional negligence claim concerning advice about a pension scheme. The claim form originally named Adcamp LLP and BDB Pitmans LLP, but the relevant advice had in fact been given by the former unincorporated partnership, Pitmans.

Before service, the claimants obtained successive extensions of time and amended the claim form to substitute Pitmans as defendant. Pitmans and former partners applied to strike out the claim, challenging the extensions and the substitution. The issues included jurisdiction, standing to set aside earlier orders, the validity of the extensions, and whether the substitution should be disallowed.

1. Jurisdiction. An application to set aside an order extending time for service engages CPR r. 11. The defendants should have indicated an intention to contest jurisdiction in their acknowledgements of service and expressly invoked r. 11. However, the documents made their intention clear. Following Hoddinott v Persimmon Homes (Wessex) and Pitalia v NHS England, the procedural errors were technical and were corrected under CPR r. 3.10.
2. Standing under CPR r. 3.3(5). The February 2022 order was made by consent as against BDBP, so no r. 3.3(5) right arose for BDBP. As Adcamp could not consent while dissolved, the order was made under r. 23.8(c) as against Adcamp, giving it a set-aside right after restoration. Pitmans was not a party when the orders were made and became a party only on service of the amended claim form under r. 19.4(9). It therefore had no standing under r. 3.3(5) to set aside those orders. The rule refers to parties to the order, not parties subsequently joined.
3. Substantive challenges. If the challenges had arisen, they would have failed. A valid written agreement under r. 2.11 varies the period specified by r. 7.5 and therefore affects the timing analysis under r. 7.6(2). The February 2022 order was accordingly valid. The August 2023 extension was also justified: delays in restoring Adcamp, producing the files and responding to the letter of claim were not attributable to unreasonable conduct by the claimants. Applying R (Kuznetsov) v Camden, there was no good reason to disagree with the earlier decision.
4. Substitution. The mistake in naming the LLP rather than the former partnership was a mistake within CPR r. 19.6(3)(a). The court retained discretion under r. 17.2. The claimants acted with reasonable diligence, the successor entities and their solicitors had long been aware of the claim, the same insurer stood behind the defendants, and no real prejudice to Pitmans was identified. The substitution was therefore allowed to stand.
5. Disposition. The application to strike out the claim against Pitmans was dismissed. The unopposed strike-out application concerning Adcamp was allowed, and Mr Davies was removed from the claim.

Not an appeal. The judgment determined an application to strike out and disallow the substitution of a defendant.