Limited: narrow scope for adding defendants to claims after expiry of limitation period

By Caroline Brown

18 Mar 2026 9 min read

Who is the correct defendant? And when does limitation fall? These are two of the first questions any litigator will consider when a new case lands.

The Court of Appeal’s judgment in Adcamp LLP v Office Properties PL Ltd & Ors [2026] EWCA Civ 50 provides a stark warning to claimants of the impact of getting these issues wrong.

The claimants in the underlying proceedings had issued claims alleging professional negligence on the part of their former firm of solicitors, Pitmans LLP (“Pitmans”). Before the claims were issued, the partnership business of Pitmans was acquired by another firm, resulting in the creation of a new entity, BDB Pitmans LLP (“BDB”). Pitmans changed its name to Adcamp LLP (“Adcamp”) following the acquisition and was then dissolved. The claimants issued their claim against BDB, believing that Pitmans’ liabilities to them had transferred to BDB. The Court of Appeal held that the claimants could not add or substitute the original firm, restored under its new name Adcamp, as a defendant following the expiry of the limitation period.

Relevance of the Judgment

It is relatively common for firms of professional advisors to be acquired by, or merge with, another firm, creating a new firm with a separate legal identity. Where such an acquisition has taken place, it can be difficult for claimants to ascertain whether the liabilities of the original firm to its clients have transferred to the new firm. In these circumstances, clients can be left wondering who to sue – the original firm who provided the allegedly negligent advice, or the “new” firm, created by the merger. This complexity is compounded by questions as to insurance coverage, which often determines whether claimants can make adequate financial recovery.

This Court of Appeal judgment is examined in detail below but the key takeaway for claimants in professional negligence claims is that where the firm that provided the allegedly negligent advice has merged to form a new entity, it is critical to identify which entity retains liability for that advice and to resolve any uncertainty about this before the expiry of the limitation period. If claimants sue the new entity in the mistaken belief that the original firm’s liabilities have transferred to it, their claims will be doomed to fail if the limitation period expires before they can add or substitute the original firm, which retains liability, to the claim. The case also serves as an illustration of why it is important to act quickly if a potential professional negligence claim is identified, to avoid difficulties with expired limitation.

Background

The Court of Appeal heard two appeals together, arising from separate professional negligence claims alleging negligent advice had been provided to the respective claimants by Pitmans. Both sets of claimants issued their claims against BDB, in the mistaken belief that BDB was liable for Pitmans’ liabilities to its clients. In each case, the statutory limitation period remained current at the point where the proceedings against BDB were issued but had expired by the time the claimants sought to add or substitute Pitmans (under its new name Adcamp) as a defendant.

Decision of the Court of Appeal

The relevant statutory regime and procedural court rules governing the addition or substitution of parties after the expiry of the limitation period are set out in CPR rule 19.6 and section 35 of the Limitation Act 1980. Under these provisions, the court may add or substitute a party after issue only if satisfied that one of the following relevant gateways apply:

First Gateway (CPR r 19.6(3)(a); s35(6)(a) LA 1980): “the new party is to be substituted for a party who was named in the claim form in mistake for the new party;”

Second Gateway (CPR r 19.6(3)(b); s35(6)(b) LA 1980): “the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant…”

The difficulty facing all claimants in these circumstances is that the First Gateway is only available where there has been a genuine mistake of fact made by the claimant as to the correct name of the defendant, that did not cause any reasonable doubt as to the identity of the defendant that was intended to be sued (Adelson v Associated Newspapers Ltd [2007] EWCA Civ 701). As a Court of Appeal judgment, Adelson is binding on all English and Welsh courts unless there is a decision of the Supreme Court overruling it, or Parliament amends the statutory regime. It was common ground that the First Gateway was inapplicable in this case.

The claimants therefore relied upon the Second Gateway. The Court of Appeal’s position has now determined that substitution or addition of a new party under the Second Gateway is only available where the claim to be made by or against the proposed new party is identical in every material respect to the claim already in progress. This requirement was not met here. Vitally, for the purposes of any future potential claimants, none of the parties, nor the Court of Appeal, could envisage any situation in which a defendant (rather than a claimant) could be added or substituted under the Second Gateway. This is because the identity, and basis for the liability of, the defendant are material facts that will inevitably be different between the original claim and the claim after the substitution of the defendant. To extend this to addition or substitution of a defendant would overlook the fundamental starting point that a defendant has a statutory defence by reason of the passage of time.

The Court of Appeal therefore allowed both appeals and held that the addition or substitution of Adcamp was not permitted. The test set out in CPR rule 19.6(3)(b) was not fulfilled, and the court is not afforded any discretion to act where the gateway criteria are not met.

Detailed takeaway lessons for claimants and defendants

For claimants, this judgment highlights the critical need to identify the correct defendant and resolve any uncertainty around this before the expiry of the limitation period. In negligence claims in particular, this will involve careful consideration of the scope of the duty owed to the claimant by the defendant.

Where the firm a claimant originally engaged and received allegedly negligent advice from has merged with another firm, claimants should seek to resolve issues as to the assignment of liability and insurance coverage in pre-action correspondence. Where the end of the limitation period is approaching or defendants seek to obfuscate the true position, careful legal advice is required for claimants as to which defendant(s) to name in their claim, including as to any potential costs consequences for naming multiple defendants. The test is ultimately whether it was reasonable in the circumstances for the claimants to bring in more than one defendant to the claim.

One positive from the Court of Appeal judgment for claimants is a reminder of the long-standing position that where proceedings have been commenced against a defendant, a subsequent transfer of a defendant’s liability for that claim – for example where it has been acquired and its liabilities transferred to a new company by novation – does not give rise to any limitation issue.

For defendants, the judgment represents reassuring certainty as to the limited circumstances in which they may be added to existing claims once the limitation period has expired under CPR rule 19.6. Defendants should not face open‑ended exposure simply because a claimant pursued the wrong party. The provisions set out in CPR rule 19.6(3)(b) and s.35(6)(b) of the LA 1980 serve a protective function against attempts to reengineer a claim after the limitation period has expired.

As noted by the Court of Appeal, any change in approach to allow for the addition or substitution of a defendant after the expiry of the limitation period, where a claimant has mistakenly believed that liability had passed from one firm to another, will require a decision of the Supreme Court changing the current interpretation of the First Gateway.

Note: Permission to appeal this decision to the Supreme Court has been granted.

This article was written by Laura McCann and Caroline Brown. The Burges Salmon professional negligence team is recognised as market-leading, having extensive experience in acting on high value and complex professional negligence claims. If you would like to discuss this further, please get in touch with Caroline Brown or your usual Burges Salmon contact.