Solicitors firms seem perennially to be named as a defendant to a professional negligence action by mistake due to a merger with or business transfer to another firm. 

The Court of Appeal has delivered an important judgment on the Court’s power to order the substitution of a party under r 19.6(3)(b) CPR after the end of the limitation period in two such cases — Adcamp LLP v Office Properties PL Limited (in liquidation); BDB Pitmans LLP v Lee [2026] EWCA Civ 50 — and has now granted the Respondents permission to appeal to the Supreme Court.

The Lee appeal concerned a professional negligence action arising out of services provided by Pitmans LLP (“Pitmans”) before it “merged” with the firm now known as Broadfield UK Law LLP (“Broadfield”; together, the “Broadfield Defendants”). The claimants’ solicitors and the solicitors for Broadfield corresponded as though it were the liable defendant, only for Broadfield to deny that it was the proper defendant after proceedings were issued and to apply for summary judgment on the claim — the limitation period having by this time expired.

At first instance, Caroline Shea K.C., sitting as a Deputy Judge of the High Court, held that Broadfield was arguably liable by virtue of a novation, estoppel, or acknowledgment of Pitmans’ liability, and, as such, declined to grant reverse summary judgment on the claim. There was no appeal from that decision and the questions of novation, estoppel and acknowledgment are now to be determined at trial. As the parties had invited her to do, the Deputy Judge went on to consider a contingent application to substitute Pitmans for Broadfield on the premise that the case on novation, estoppel and acknowledgment failed. The Deputy Judge held that substitution could be ordered under r 19.6(3)(b) and it was the order flowing from that decision that was the subject of Broadfield and Pitmans’ appeal.

Before the Court of Appeal, the Broadfield Defendants advanced two arguments.

The Broadfield Defendants first argued that r 19.6(3)(b) was subject to a gloss that limited its application to orders for substitution sought as a result of a procedural or constitutional issue. The Court of Appeal rejected that argument, deciding that there was no limitation on r 19.6(3)(b) based on the reasons why substitution might be necessary; the rule only required that the claim would fail as against the existing defendant.

The Broadfield Defendants next argued, successfully, that the words the “original action” in section 35(6)(b) of the Limitation Act 1980 and “the claim” in r 19.6(3)(b) prevented an order for substitution being made in the present proceedings due to a difference between the factual averments necessary to sue the different defendants. The Court of Appeal held that r 19.6(3)(b) required the Court to consider “… whether the two claims are in substance the same, not whether every pleaded fact is the same” or, put in different terms, whether “the ‘essential facts which have to be averred’ are the same”: at [78]. However, here, the Court held, the claims were not the same because “substitution would involve a substantive change to the identity of the person against whom the claim is asserted” (at [76]).

The Claimants in the Lee appeal had, throughout, reserved their liberty to argue before the Supreme Court (if permission were to be granted) that the prevailing interpretation of r 19.6(3)(a) is wrong and that substitution could be ordered under that limb, if it could not be ordered under r 19.6(3)(b). However, the Claimants could not advance such an argument at any earlier time in the light of The Sardinia Sulcis and the Court of Appeal authorities that had applied it in the different context of the Civil Procedure Rules.

The Court of Appeal has now granted the Respondents permission to appeal to the Supreme Court. The two grounds of appeal are:

(1) The Court has power to order substitution under r 19.6(3)(a) due to the mistake made by the Claimants in naming BDB Pitmans LLP as defendant. The Court of Appeal was bound by an earlier judgment of the Court of Appeal to decide otherwise (and the point was, accordingly, not argued), but that authority is wrong.

(2) The Court of Appeal erred in interpreting the requirements of the words ‘the original action’ in s 35(6)(b) / ‘the claim’ in r 19.6(3)(b) (or as it was otherwise described, the ‘same claim’ requirement).

Ryan Turner appeared on behalf of the Claimants / Respondents in the Lee appeal, led by Thomas Grant KC of Wilberforce Chambers, instructed by Milners Solicitors.

Jamie Carpenter KC of Hailsham Chambers appeared on behalf of the successful Appellants in both appeals, instructed by DAC Beachcroft LLP and Kennedys LLP.

Patrick Lawrence KC of 4 New Square appeared on behalf of the Claimants / Respondents in the Office Properties appeal, instructed by Penningtons Manches Cooper LLP.

Read the Court of Appeal’s judgment: Adcamp LLP v Office Properties PL Limited (in liquidation); BDB Pitmans LLP v Lee 

Read our report on the first instance judgment (Lee v BDB Pitmans LLP [2025] EWHC 2881) here.