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

This is a first instance decision on an application to strike out a professional negligence claim against a substituted defendant and/or to set aside successive court orders extending time for service of the claim form. The court applied Civil Procedure Rules governing extension of time for service (CPR r.7.5 and r.7.6), the rules on dealing with applications without a hearing (CPR r.23.8 and r.3.3), the rules on amendment and substitution of parties (CPR rr.17.1, 17.2 and 19.6) and the rule on disputing jurisdiction (CPR r.11).

Key legal principles and findings:

• The defendants’ procedural failure to tick the box contesting jurisdiction on the acknowledgement of service and not to expressly invoke CPR r.11 in their strike out application was a technical error which the court corrected under CPR r.3.10, applying the approach in Pitalia v NHS England.
• The right to apply to set aside an order made without a hearing under r.3.3(5) belongs to the parties to that order as made; a person who is joined to the proceedings later (including by substitution) does not acquire the r.3.3(5) right to set aside earlier orders.
• An agreement validly made under CPR r.2.11 to vary the period for service under r.7.5 operates for the purposes of subsequent applications under r.7.6, and the court will assess whether r.7.6(2) or r.7.6(3) applies on the facts and evidence before it when the order is sought.
• On the facts, the orders extending time for service (including the February 2022 and August 2023 orders) were properly made and, even if Pitmans had been able to apply to set them aside, the court would have rejected that challenge.
• The amendment substituting Pitmans as defendant was not disallowed under CPR r.17.2: the substitution was necessary under r.19.6(3) because Pitmans was the entity mistakenly not named originally, the claimant had pursued the claim with reasonable diligence, the same solicitors and insurer acted for successor entities, and no relevant prejudice to Pitmans was identified.

Background and parties: The claimants are the employer and trustee of a pension scheme who sued for negligent legal advice given in 2008–2009. The solicitors who then advised carried on as an unincorporated partnership known as Pitmans; that partnership’s business was transferred in 2011 to an LLP which later became Adcamp LLP, and the business later merged into BDB Pitmans LLP. The claim form was issued within the extended limitation period naming Adcamp and BDB Pitmans LLP as defendants but was not served until 2023, after a series of agreed or ordered extensions of time and after the claimants amended the claim to substitute Pitmans as a defendant.

Nature of the application: The defendants applied to strike out the claim on the grounds that the successive extension orders granting leave to serve out time should be set aside (which would render service on Pitmans out of time), or alternatively that the substitution of Pitmans should be disallowed under CPR r.17.2.

Issues framed by the court:

1. Whether the defendants’ failure to contest jurisdiction under CPR r.11 in their acknowledgement of service and application was fatal and whether any error could be corrected under CPR r.3.10.
2. Whether Pitmans had standing to apply to set aside the extension of time orders and whether a short extension of time should be granted to permit such an application.
3. Whether one or more of the extension orders should be set aside on the merits.
4. Whether, if the orders were not set aside, the court should disallow the substitution of Pitmans as a defendant.

Court’s reasoning and disposition: The court held that the procedural omissions were technical and rectifiable under CPR r.3.10, applying the reasoning in Pitalia to treat the defendants’ intention to contest jurisdiction as sufficiently clear. The court then analysed r.3.3(4)–(6) and r.23.8 and concluded that the right to apply under r.3.3(5) to set aside an order made without a hearing belongs to the parties to that order when made; a party substituted into proceedings later (here, Pitmans) does not acquire that specific right to challenge previous orders. The court further held that an agreement between parties made under CPR r.2.11 to vary the r.7.5 service period operates for the purposes of later r.7.6 applications. On the facts, the February 2022 order was valid as to Adcamp (which, once restored, was bound and had the ability to apply under r.3.3(5)), and the August 2023 order was supported by adequate explanation and delays largely resulted from the defendants’ solicitor’s late production of client files and the restoration process. Finally, applying the guidance in Insight Group v Kingston Smith and distinguishing American Leisure v Olswang, the court refused to disallow the substitution of Pitmans because the mistake in naming the defendant was the sort of mistake covered by r.19.6, the claimants acted with reasonable diligence, the same solicitors and insurer had been involved, and no material prejudice to Pitmans had been shown.

The defendants' strike out application against Pitmans is dismissed; the court corrected the defendants’ procedural omission to contest jurisdiction under CPR r.11 by granting relief under CPR r.3.10, held that Pitmans did not have standing under CPR r.3.3(5) to set aside earlier extension orders made before it was a party, found that the extension orders (including the February 2022 and August 2023 orders) were properly made and would have been upheld on the merits, and refused to disallow the substitution of Pitmans under CPR r.17.2. The unopposed strike out against Adcamp is accepted and an individual (Mr Davies) is removed from the claim as agreed.