Collingwood & Anor v Irwin Mitchell LLP [2025] EWHC 1570 (Ch)
Professional Negligence: Limitation and Misidentification in Collingwood v Irwin Mitchell LLP
This is a recent High Court decision dealing with two issues in a professional negligence claim: (1) whether the claim was time-barred (limitation) and (2) whether the claimant sued the correct defendant or merely misnamed the liable party. The case arose from a solicitors’ alleged failure to advise on limitation in the context of a pension fund fraud recovery, and it highlights how courts approach the accrual of damage in negligence claims and the correction of misidentified parties under the Civil Procedure Rules.
The defendant law firm, Irwin Mitchell LLP, applied to strike out or obtain summary judgment on the basis that the claim was issued outside the limitation period and against the wrong legal entity. In response, the claimants applied to substitute the proper defendant, the firm that had actually provided the negligent advice, arguing that naming Irwin Mitchell was a genuine mistake.
The first claimant, Capt. Nigel Collingwood, and his company were victims of a pension investment fraud in 2012, losing about £215,000. In 2014 they sought legal advice from Thomas Eggar LLP (TEL) on recovering the lost funds. TEL advised on possible actions but did not urge immediate civil proceedings. TEL’s engagement ended by late 2014 with no civil claim filed. In late 2015, TEL merged into Irwin Mitchell LLP; TEL was renamed Rhealisation LLP in 2016 and remained a separate legal entity. Under the merger deed, Irwin Mitchell agreed its professional indemnity insurers would handle future negligence claims by TEL’s clients, but no formal transfer or novation of liability occurred; TEL (now Rhealisation LLP) technically remained the entity responsible for its own pre-merger negligence.
The Claim:
On 13 May 2024, just short of, what the claimants calculated as, six years from the date their loss crystallised, the claimants issued proceedings against two defendants: Irwin Mitchell LLP and the Chief Constable of Surrey Police. They alleged the solicitors were negligent in failing to advise about limitation, causing the loss of a chance to sue the fraudsters, and similarly alleged the police had told them to delay civil action. The police claim was later dropped, leaving the law firm as the sole defendant. Importantly, the claim was filed without prior notice or pre-action protocol and was served at the last moment. Irwin Mitchell first learned of the claim months after issue and only shortly before the service deadline.
Competing Applications
Upon being sued, Irwin Mitchell LLP applied under CPR 3.4(2) and Part 24 for strike-out or summary judgment. Its two primary arguments were: (a) the claim was time-barred under the Limitation Act 1980; and (b) the claim was against the wrong defendant, since any duty was owed by TEL/Rhealisation LLP, not Irwin Mitchell. In turn, the claimants, in April 2025, applied under CPR 19.6 to substitute Rhealisation LLP as the defendant, maintaining that naming Irwin Mitchell was a mistake and that it was always intended to sue the firm which gave the 2014 advice (i.e. Thomas Eggar). Thus, the court faced two questions, was the claim issued out of time, and could the mistake in the defendant’s name be corrected despite the lapse of time?
The Limitation Issue. When Did the Cause of Action Accrue?
Issue: The defendant contended that the negligence claim was brought too late, hinging on when the claimants first suffered actual loss due to the solicitors’ alleged negligence. In professional negligence, a claim in tort accrues, and the limitation clock starts, when the claimant suffers measurable damage caused by the breach. The central dispute was whether the claimants’ loss occurred all at once when the underlying fraud claims became time-barred, as the claimants argued, or gradually/earlier as opportunities to recover were forgone, as the defendant argued.
Parties’ Arguments on Limitation
Defendant’s Position
Irwin Mitchell, argued the claim was clearly statute-barred because the claimants’ own pleadings showed they suffered actual loss well before May 2018. By 2014, they asserted, the claimants had already been deprived of a meaningful chance of recovery due to TEL’s alleged failures, for example, the solicitors did not urge pursuing civil remedies or the liquidation of the fraudulent company in 2014, thereby allowing assets to dissipate and recovery prospects to diminish early on.
The defendant pointed to the pleadings which listed numerous omissions by TEL, not just a failure to diarise a limitation date, but broader failures to act promptly. This, they said, muddied the water and opened the door to the principle that a claimant cannot avoid limitation by focusing only on late-occurring damage if earlier damage from the same wrong already happened. In support, the defence cited case law such as Khan v Falvey [2002] EWCA Civ 400, where a solicitor’s negligent delay caused a case to weaken over time; the Court of Appeal held that time ran from the initial detriment, not the final collapse of the claim.
Irwin Mitchell argued that any loss of chance began in 2014, when TEL’s inaction allowed the fraud recovery to go stale, so the six-year period would have expired in 2020. Even taking the claimants’ own timeline at its best, that the loss occurred in May 2018 when the first underlying limitation period elapsed, the issue of the claim in May 2024 was just outside six years from that date. Either way, the claim was filed too late.
The defendant also argued that the claimants could not invoke the fraud postponement provisions of the Limitation Act 1980, section 32, to save the negligence claim as the claimants knew of the fraud by 2013/2014, so any concealment of the fraud did not delay their knowledge of the solicitors’ negligence.
Claimants’ Position
The claimants maintained the action was in time because, in their view, no actual damage occurred until their underlying causes of action against the fraudsters were irretrievably lost. They characterised the injury as the loss of a chance to recover funds, which only crystallised once the ability to sue the wrongdoers expired. Their pleadings stated “at the date on which the limitation period expired, [they] suffered damage” from TEL’s negligence. In other words, until the fraud claims became time-barred the claimants still had a viable chance to recover their money.
They relied on authority such as Law Society v Sephton & Co [2006] UKHL 22, where the House of Lords confirmed that when a solicitor’s negligence causes a client to lose a cause of action, the cause of action against the solicitor accrues only when that underlying claim is lost. Prior to that point, any loss is merely contingent or speculative. The claimants also cited Hatton v Chafes [2003] EWCA Civ 341 and other cases endorsing the view that in loss of litigation scenarios, the clock starts when the litigation chance is actually destroyed, not at the moment of the lawyer’s omission. Furthermore, they argued that section 32 of the Limitation Act 1980, delayed start due to fraud, pushed the relevant dates later, since Capt. Collingwood only discovered the fraud in July 2013.
Any claims against the fraudsters had limitation running from that discovery, potentially expiring in 2019 or 2020 given multiple fraudulent payments. By that calculation, filing in May 2024 was within six years of the final expiry of those underlying claims. Finally, the claimants contended that determining when actual damage occurred was a fact-sensitive question inappropriate for summary judgment. They disputed that any compensable loss occurred as early as 2014, at that stage, they were proceeding and pursuing other avenues, police investigations, attempts through insolvency, and had not irreversibly given up any claim. Only a trial could establish what chance of recovery existed at various points and whether TEL’s omissions truly caused a loss before 2018. Any doubt on the timing of loss, they argued, should be resolved in their favour at this interlocutory stage, allowing the claim to proceed.
Court’s Analysis on Limitation
Master Teverson stated at the outset that cases involving solicitor negligence in litigation or recovery efforts are notoriously fact sensitive. Over the years, courts have taken different views on when loss accrues in such cases, some authorities suggest no loss until an underlying claim is lost, while others find earlier erosion of a claim’s value can suffice. Rather than attempt an abstract reconciliation, Master Teverson favoured a pragmatic approach, asking when the claimant was demonstrably worse off due to the solicitor’s breach than they would have been otherwise.
The Master found that the pleadings and evidence left open multiple possibilities as to when damage occurred. He agreed with the defendant that some of the alleged negligent omissions, for example, failing to pursue the fraudster’s liquidation in 2014, might have caused an earlier, irretrievable loss of money at that time. For instance, if assets in the fraudster’s company were disbursed in 2014 while no action was taken, the claimants could have lost that portion of their funds then, regardless of formal limitation deadlines. On the other hand, he acknowledged that other facets of the loss, most notably the lost opportunity to sue in court, did not materialise until the limitation period expired without action. Given this mix, the Master observed that the claimants’ own pleadings had muddied the water on limitation by alleging a broad range of failures across a timeline.
The conclusion was that determining the true date of actual damage would require examining evidence at trial. At one extreme, it might be shown that even by late 2013, recovery was a lost cause, if, say, the fraudsters were insolvent and judgment-proof from the start, in which case TEL’s later negligence might not have caused any additional loss. At the other extreme, perhaps the claimants still had a viable recovery chance up until the last deadline passed in 2018, meaning the negligence only caused loss at that point. The reality could lie somewhere in between, and importantly, whether TEL’s various omissions are treated as one composite breach or as separate breaches could affect the analysis. All of these issues, he held, demand factual resolution and are inappropriate for summary determination.
Conclusion on Limitation
Master Teverson found it would be unjust to decide the limitation issue against the claimants at an interlocutory stage. It was far from clear that the whole claim was clearly statute-barred when issued. To the contrary, there were compelling reasons to let the matter go forward to trial for a fully informed determination on limitation. He therefore refused the defendant’s strike-out/summary judgment application on limitation grounds. In his words: “I do not consider that the claim should be struck out or reverse summary judgment granted to the Defendant on the basis that the claim was statute-barred at the time when it was issued.” The limitation defence remains alive for trial, Irwin Mitchell can still argue that loss occurred earlier than 2018, but it will be for the trial judge to weigh the evidence and decide that question.
Misidentification of the Defendant: CPR 19.6 and Substitution
With the case proceeding the court turned to the second issue, the fact that the claim had been initiated against the wrong defendant. It was undisputed that Thomas Eggar LLP (TEL), not Irwin Mitchell LLP, provided the advice in 2014 and owed the relevant duties. TEL (renamed Rhealisation LLP) and Irwin Mitchell are distinct legal entities, despite the merger arrangement. The claimants had sued Irwin Mitchell under the name “Irwin Mitchell (formerly ‘Thomas Eggar LLP’)”, apparently assuming Irwin Mitchell effectively stood in TEL’s shoes. Master Teverson found this was incorrect as a matter of law: Irwin Mitchell never was formerly Thomas Eggar LLP it simply purchased TEL’s business, while TEL/Rhealisation remained the entity holding the liability. In the absence of an express novation or assignment of liability as none was evidenced, Irwin Mitchell had no direct liability for TEL’s negligent acts to these claimants. The claim as initially pleaded against Irwin Mitchell was defective.
The question was whether the court should allow the claimants to substitute Rhealisation LLP (TEL) as the defendant, even though by 2025 the limitation period for suing TEL had unquestionably expired. CPR 19.6 (formerly 19.5) governs adding or substituting parties after the limitation period. The rule permits substitution only in special circumstances,principally where the original party was named in mistake for the correct party.The court needed to decide if this was a mere mistake in naming the right entity, which can be fixed, or a more fundamental mistake of identity, suing the wrong person entirely, with no intention toward the right one, which cannot be cured after time has expired.
Court’s Analysis on Substitution (Mistake of Name vs Identity)
Master Teverson was satisfied that this case fell squarely within the mistake-as-to-name category contemplated by CPR 19.6. The solicitors intended to sue the firm that gave the negligent advice (Thomas Eggar), and they mistakenly believed that naming Irwin Mitchell LLP achieved that aim. This was not a deliberate choice to sue Irwin Mitchell for its own conduct, nor an instance of the claimants deciding to pursue the wrong target; it was a genuine error born of confusion over the merger and corporate identity. Adopting the established test from The Sardinia Sulcis and subsequent cases, Master Teverson concluded the mistake satisfies the Sardinia Sulcis test for a correctable misnomer. In other words, the name was wrong but the intended defendant was always TEL/Rhealisation, and Irwin Mitchell was named only because of the mistaken belief that it had assumed TEL’s liabilities.
Because this was a true misnomer, the court held it had jurisdiction under CPR 19.6(3) and section 35 Limitation Act 1980 to order a substitution. The Master cited the two pre-conditions from Insight Group Ltd v Kingston Smith that must be met: (1) the claim must not be currently sustainable against the existing named party; and (2) the new party is the person intended to be sued, such that the same claim is being pursued against them. Both were plainly satisfied here. Nothing substantive about the case would change except the heading of the claim form. Thus, the court had power to substitute Rhealisation LLP as the defendant under CPR 19.6(3)(a), mistake about name, and/or CPR 19.6(3)(b), substitution necessary for the claim to continue.
Having established jurisdiction, the Master then considered whether to exercise his discretion to allow the substitution, given the procedural history. Irwin Mitchell’s counsel argued that the court should refuse substitution because of the claimants’ conduct, i.e. they sued at the last minute, gave no warning, and then waited many months, until the eve of the hearing, to try to correct the defendant error.
The Master found the prejudice and justice balance tilted in favour of allowing the substitution. Crucially, substituting Rhealisation LLP did not spring any new claim or unexpected liability on an unaware party. Irwin Mitchell’s own insurers had been dealing with the claim from the start under the assumption it was covered by TEL’s policy. Per the merger deed, Irwin Mitchell’s insurers were dealing with the claim whether the defendant was named as Irwin Mitchell or TEL. Thus, in practical terms, switching the name to Rhealisation LLP “will make no difference to the defence of the claim”, the same insurance, same defence team, and no individual’s personal liability was suddenly engaged.
Moreover, the claimants’ intention was always to sue the firm that advised them in 2014, they simply, and perhaps naively,thought that naming Irwin Mitchell achieved that. Denying the substitution would therefore punish the claimants with a draconian result, no recourse for their £215k loss, over what was essentially a technical slip by their solicitors. On the other hand, allowing the change caused minimal prejudice to the defence: the case would proceed exactly as it would have if the correct entity had been named from the start. The Master noted that the overriding objective favours resolving cases on their merits when it can be done fairly. Here, that objective was served by correcting the name and moving on, whereas barring the claim for a misnomer would be a disproportionate windfall for the defendant.
In summary, the claim was saved: it would go forward against the correct defendant, and neither the debatable limitation point nor the initial naming error was allowed to defeat the claim at the pre-trial stage.
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