Publication · Commercial litigation

Nullity claimant receives nul points for necessity

Pengelly & Rylands v Hills

By Kiki Hausdorff and Alexander Heylin
Originally published 4 November 2025
Updated 25 September 2026 at 11:26 p.m. BST

Update following the Court of Appeal’s decision in Mazur
This article was written following the High Court decision in Mazur v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB). On 31 March 2026, the Court of Appeal allowed the appeal in Mazur: [2026] EWCA Civ 369. It held that an unauthorised person may perform litigation tasks for and on behalf of an authorised individual where that authorised individual retains responsibility and appropriate arrangements for supervision, management and control are in place. The original proposition that an application was liable to be struck out merely because it had been signed by an unauthorised person should not therefore be treated as a statement of current law. The later decision does not alter the outcome reported below in Pengelly & Rylands v Hills, which also rested on limitation, the requirements of CPR 19.6, discretion and costs.

The High Court decision in Mazur v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB) was considered in relation to discretion and costs on an application under CPR 19.6 to substitute a claimant after the expiry of the limitation period.

The application was opposed by Alexander Heylin, instructed by Brett Wilson for the defendant.

Key points

The application was dismissed because the proceedings were issued outside the limitation period, so CPR 19.6(2)(a) was not satisfied.
Even if limitation had been current when proceedings were issued, CPR 19.6(3)(a) was not satisfied because there had been an error of law rather than the relevant kind of mistake.
CPR 19.6(3)(b) was not satisfied because the original claimant was a nullity.
Even if the requirements for substitution had been met, the judge would have exercised his discretion against the claimant because of its conduct.
The claimant was ordered to pay the costs of the whole proceedings on the indemnity basis, with a substantial payment on account.
The decision’s separate treatment of the authorisation issue under the High Court decision in Mazur must now be read subject to the Court of Appeal’s judgment of 31 March 2026.

Introduction

In the 2025 High Court decision in Mazur, Sheldon J held that a person who was neither an “authorised person” under section 18 nor an “exempt person” under section 19 of the Legal Services Act 2007 was not entitled to conduct litigation, even under supervision. That decision caused considerable concern within the legal profession and prompted guidance and statements from the Law Society, the Solicitors Regulation Authority and the Legal Services Board.

HHJ Timothy Parker considered Mazur in Pengelly & Rylands v Hills. Alexander Heylin appeared for the defendant and opposed an application under CPR 19.6.

The applicant sought to substitute Hatten Wyatt, the intended claimant company, for “Pengelly & Rylands”, the company’s trading name used on the claim form. That followed an abandoned application to add Hatten Wyatt as a second claimant.

Alexander was instructed by Max Campbell and Vishalee Amin of Brett Wilson. The judge praised Ms Amin’s witness statements as “conspicuously clear and helpful”.

The gateways under CPR 19.6

To obtain substitution after the expiry of a relevant limitation period, the claimant had to establish both that the limitation period was current when the proceedings were started and that the substitution was necessary.

CPR 19.6(2) provides that the court may add or substitute a party only if:

“(a) the relevant limitation period was current when the proceedings were started; and
(b) the addition or substitution is necessary.”

For present purposes, CPR 19.6(3) provided that addition or substitution was necessary only if the court was satisfied that:

“(a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party; [or]
(b) 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 application failed on both the limitation and necessity requirements.

Limitation

Whether the proceedings had been started within the limitation period depended on when the claimant discovered the defendant employee’s alleged misconduct.

The judge found that, with reasonable diligence, the claimant could have known facts which would have led a reasonable person to conclude that there was a worthwhile claim at a date which placed the issue of proceedings outside the limitation period.

The first requirement in CPR 19.6(2)(a) was therefore not met.

Necessity

Even if the claimant had succeeded on limitation, it also had to show that substitution was necessary.

No qualifying mistake

The judge found that there could not have been a factual mistake because Hatten Wyatt knew that Pengelly & Rylands was a trading name. Hatten Wyatt had made an error of law which should not be treated as a mistake within CPR 19.6(3)(a).

The original claimant was a nullity

The wording of the rule was important: there was no “original party”. Applying the Court of Appeal’s decision in Mark McLaren Class Representative Ltd v MOL (Europe Africa) Ltd [2022] EWCA Civ 1701; [2023] Bus LR 318, the named claimant was a nullity. CPR 19.6(3)(b) could not therefore be satisfied.

Discretion

Had the claimant succeeded in meeting the gateways for substitution, the judge would nevertheless have exercised his discretion against granting the application.

Failure to provide information

The claimant’s failure to provide information relating to the costs allegedly incurred in investigating the defendant’s misconduct was serious. It was not obvious how the claimed sum had been incurred, and no satisfactory explanation was provided. That was contrary to the overriding objective and to the obligation to avoid unnecessary expense.

Nature of the error and procedural history

The avoidable error on the claim form was not corrected despite being identified by the defendant’s solicitors. The claimant’s first defective application, abandoned shortly before the first hearing, added to the substantial delay already caused by issuing the claim late.

Application of Mazur at the time

Under the High Court decision in Mazur as it stood in 2025, the application was treated as liable to be struck out on the ground that the person who signed the application notice was not authorised under the Legal Services Act 2007.

Had that been the only issue, the judge would have been reluctant to strike out the application before adjourning so that the claimant could take instructions and file a further copy signed by an authorised person. The claimant’s failure to rectify the issue nevertheless counted against it in the exercise of discretion.

That part of the analysis is now historical. In Mazur [2026] EWCA Civ 369, the Court of Appeal rejected the narrower proposition that litigation tasks cannot be delegated to an unauthorised person. The current question is whether the task was performed for and on behalf of an authorised individual who retained responsibility, supported by appropriate arrangements for supervision, management and control.

Costs and result

The application was dismissed. The claimant’s conduct resulted in an order that Hatten Wyatt pay the costs of the whole proceedings on the indemnity basis, together with a substantial payment on account.

Practical significance

The decision is a reminder that CPR 19.6 imposes cumulative and tightly drawn requirements. A claimant seeking substitution after limitation must establish that the relevant limitation period was current when proceedings began and that one of the specified necessity conditions applies.

The case also demonstrates the risks created by issuing in a trading name, delaying correction after the problem has been identified, pursuing defective applications and failing to provide clear evidence. Even where a jurisdictional gateway is arguable, those matters may determine discretion and costs.

The authorisation point discussed in the original article must, however, be read in light of the Court of Appeal’s later ruling in Mazur.

Sources and further reading

The original article was written while Alexander was a member of No5 Barristers’ Chambers. He is now a member of Enterprise Chambers.

This publication provides general information only and is not legal advice. It reflects the law as at 25 September 2026. The facts and procedural position in any particular case should be considered separately.

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