Mark William Lee & Anor v Adcamp LLP

Summary judgment is inappropriate where a claim has a realistic, rather than fanciful, prospect of success and resolution requires a detailed factual or legal investigation. A novel novation argument may proceed where delayed consent by a third party is reasonably arguable, even though simultaneous consent is the usual case. Estoppel claims are highly fact-sensitive, particularly where knowledge of a mistake, reliance and detriment require witness evidence. Acknowledgement may arguably extend to an unascertained liability where the pleaded facts support an instruction to pay and an acknowledgement of that obligation. For substitution after limitation has expired, Civil Procedure Rules 1998, rule 19.6(3)(b), may apply where the underlying cause of action remains the same and only the party bearing liability changes.

The claimants alleged that Pitmans LLP negligently failed to secure overage rights in a property transaction. They sued BDB Pitmans LLP, now Broadfield Law UK LLP, on the basis that Pitmans’ liabilities had passed to Broadfield by novation or otherwise.

Broadfield applied for summary judgment. The claimants relied alternatively on estoppel and acknowledgement. They also sought permission to amend their pleading and, if necessary, to substitute Adcamp LLP, the restored entity formerly known as Pitmans LLP, as defendant. The court considered whether the claims had a real prospect of success and whether substitution was available under CPR rule 19.6(3)(b).

1. Summary judgment. The court applied the principles in Easyair v Opal Telecom Ltd [2009] EWHC 339, including the requirement to distinguish a realistic claim from a fanciful one and the prohibition on conducting a mini-trial. A final decision may be made on a short point of law or construction where the evidence is sufficient, but the court should hesitate where fuller factual investigation may affect the result.
2. Novation. A novation requires substitution of a new contract, with the consent of all parties. Consent may be express or inferred from conduct. Simultaneous consent is commonplace, but the authorities did not establish that later consent by an initially uninformed third party could never perfect an inchoate tripartite arrangement. The statements in the 2019 accounts, the Merger Agreement and subsequent conduct gave the claimants a realistic prospect of establishing novation. Summary judgment was refused on this issue.
3. Estoppel. The claim based on promissory estoppel was insufficiently pleaded and was dismissed at the summary stage. The claims based on representation, acquiescence and convention required investigation of matters including what Broadfield knew, whether it shared or encouraged the claimants’ assumption, reliance, detriment and unconscionability. Those issues could not properly be resolved on written evidence. Summary judgment was therefore refused on those claims.
4. Acknowledgement. The doctrine is rare and its extension to an unascertained liability would be novel. Nevertheless, if the Merger Agreement arguably transferred liability for future claims, it was also arguable that Pitmans instructed Broadfield to pay those liabilities and that Broadfield acknowledged the arrangement through the 2019 accounts. The claim was sufficiently pleaded and was not fanciful. Summary judgment was refused.
5. Substitution. Under CPR rule 19.6(3)(b), the question was whether the claim could properly be carried on against the original party and whether the claim against the proposed substitute was the same claim. The professional-negligence cause of action remained identical; the additional allegation explaining why Broadfield was liable did not create a different cause of action. Nemeti v Sabre Insurance Co Ltd [2013] EWCA Civ 1555 was distinguishable because it involved different statutory causes of action.
6. The court followed the reasoning in Insight Group Ltd v Kingston Smith [2014] 1 W.L.R. 1448, Office Properties and The Tintometer Limited v Pitmans (a firm) [2024] EWHC 370 (Ch). Ground (b) was engaged. Exercising its discretion under CPR rule 19.6(2), the court granted an interim declaration permitting substitution if Broadfield was not liable or was not estopped from denying liability.
7. The Particulars of Claim could be amended. Broadfield’s application for summary judgment was dismissed except in relation to promissory estoppel.

First-instance decision. The judgment refers to an appeal to the Court of Appeal in Office Properties PL Ltd (in Liquidation) v Adcamp LLP, listed for January 2026, but that was a separate proceeding and no appellate decision in the present claim is stated.