Adcamp LLP v Office Properties PL Limited & Ors

After expiry of limitation, substitution under the second gateway is available only where the existing and proposed claims are the same in substance and the statutory condition of necessity is met. The gateway is not confined to procedural defects, but it cannot recast a claim against one legal person as a new claim against another whose liability has not been transferred. Facts establishing the original defendant’s liability form part of the claim. A mistake as to a defendant’s identity remains outside the first gateway, which is limited to mistakes in name. The court has no general power to extend limitation in the interests of justice, and discretion arises only after a gateway is satisfied. Substitution following a later transfer of an existing claim raises a different issue.

Two conjoined appeals concerned claims arising from allegedly negligent advice by Pitmans LLP. Following the acquisition of Pitmans’ business by BDB Pitmans LLP, both sets of claimants sued BDB, mistakenly believing that BDB had assumed Pitmans’ liabilities. In the Office Properties appeal, the High Court permitted amendment to substitute Pitmans after limitation had expired: [2025] EWHC 170 (Ch). In the Lee appeal, the High Court considered BDB’s possible liability arguable but made a conditional substitution order: [2025] EWHC 2881 (Ch).

The Court of Appeal had to interpret the second gateway in section 35(6)(b) of the Limitation Act 1980 and CPR rule 19.6(3)(b). The central questions were whether the existing claim had to be incapable of determination on its merits without substitution, and whether a claim against BDB for Pitmans’ negligence was the same claim as a claim against Pitmans.

The Court of Appeal unanimously allowed both appeals.

1. The first gateway under section 35(6)(a) of the Limitation Act 1980 and CPR rule 19.6(3)(a) is confined to a mistake as to the name of the party. It does not cover a mistake as to the identity of the legal person intended to be sued. The Court was bound by The Sardinia Sulcis [1991] 1 Lloyd's Rep 201, as applied in Adelson v Associated Newspapers Ltd [2007] EWCA Civ 701. The present mistakes were mistakes of law as to identity.
2. The limitation legislation strikes a statutory balance between claimants and defendants. Section 35 provides specified exceptions to the general protection of accrued limitation defences. It gives the court no general power to do justice where a mistake has been made. The court must construe the statutory language without adding a restrictive procedural gloss. The approach at first instance in Nemeti v Sabre Insurance Co Ltd [2012] EWHC 3355 (QB) had been rejected on appeal in [2013] EWCA Civ 1555.
3. The second gateway is not confined to claims obstructed by constitutional or procedural defects. A substantive defence may make a claim unsustainable. The decisive issue is whether the original and proposed claims are the same in substance. Every pleaded fact need not be identical, but the essential facts establishing liability must remain materially the same.
4. A claim against BDB depended on facts establishing that BDB had assumed Pitmans’ liabilities. A claim against Pitmans would omit that essential basis and would assert liability against a different defendant. It was therefore a different claim. The Court respectfully disagreed with the contrary obiter reasoning in Insight Group Ltd v Kingston Smith [2012] EWHC 3644 (QB). Parkinson Engineering Services plc v Swan [2009] EWCA Civ 1366 and Irwin v Lynch [2010] EWCA Civ 1153 concerned a different situation, where the same cause of action remained vested in the company despite substitution of the named claimant.
5. Where a properly constituted claim is followed by a later assignment, novation, merger or statutory transfer of the relevant interest or liability, substitution raises no new limitation issue. That situation falls outside the operation of section 35 and is distinct from introducing a new claim against a new defendant.
6. The discretionary power under CPR rule 19.6(2) arises only after the jurisdictional conditions in a gateway are satisfied. Since the second gateway was not satisfied, the conditional substitution order in the Lee appeal should not have been made. The appeals were accordingly allowed.

1. Court of Appeal (Civil Division) In [2026] EWCA Civ 50, both appeals were allowed. The Court held that substitution of Pitmans for BDB was unavailable under the second gateway.
2. High Court, Business List (ChD) In [2025] EWHC 170 (Ch), amendment substituting Pitmans for BDB was permitted in the Office Properties appeal.
3. High Court, Property, Trusts and Probate List In [2025] EWHC 2881 (Ch), strike-out was refused and conditional substitution of Pitmans for BDB was ordered in the Lee appeal.