Courting disaster: High Court refuses to validate defective service of Claim Form

In the Judgment of Mr Justice Fraser in LSREF 3 Tiger Falkirk Ltd I S.a.r.l & Anor v Paragon Building Consultancy Ltd [2021] EWHC 2063 (TCC), the High Court has held that there was no good reason to validate service retrospectively where the claimant’s solicitors served the sealed copy of the claim form to the wrong email address. The key takeaway point is summarised by Mr Justice Fraser: “The Claimants’ solicitors left the important act of serving the claim form to the last minute, and could therefore be said to have brought this situation upon themselves”.

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The Case

This was a claim of around £10 million. The Claim Form was incorrectly served on the last date of service after two prior extensions (a total of 8 months) and was served by email at 18:46 on the Defendant’s solicitors. Those solicitors however had not been nominated to accept service, further to which stated they would not accept service.

The claimant applied to set aside service, the defendant made a cross-application(an application to extend the time and/or permit alternative service and/or grant relief from sanctions). The claimant served on the defendant’s solicitors in circumstances where those solicitors had not been nominated or stated that they would, accept service. The Judge found that service by email on solicitors was not valid service. The claimant did not persuade the court to exercise its discretion under any of the routes available in CPR 6 (Civil Proceeding Rules).

The rules of serivce by email

Firstly the rules of service by email are in the Practice Direction 6A which state service by fax or other electronic means are as following;

• the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving.

• that the party to be served or the solicitor is willing to accept service by fax or other electronic means.

• the fax number, e-mail address or other electronic identification to which it must be sent.

• the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1).

• an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service 4.1(1)(b).

• Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient’s agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received)4.2.

The issue here is whether the claimant was entitled to serve by email. That judge resolved the first part of this issue in the claimant’s favour (since the defendant’s solicitors correspondence stated that documents were only being accepted by email). However, the claimant had failed as he only practically complied with the Practice Direction.

Failure to serve properly

The Judge found that service on the solicitors was not good service. There had been an agreement to extend the time by a total of 8 months for service but the making of that agreement did not represent a statement that the defendant’s solicitors were authorised to accept service. The rules can be found in CPR 6.5(1) the claim form must be served at the business address of a solicitor where:

(a) the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form, or

(b) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction.

Neither of (a) or (b) applies in this case. As the defendant solicitor stated that “the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction.” personal service must be used where it is required by law, by the CPR, a practice direction or a court order.

The Judgment

In the judgement of Justice Fraser, The Civil Procedure Rules are there for everyone to observe, both litigants in person, as well as solicitors. They are widely available and there is no sympathy in the court’s decision making

The basic facts speak for themselves. The rules give a period of four months for service of a claim form, and in this case that was extended by another four months in total, by agreement. Eight months is a generous time period. That period is ample time for the claim form to have been properly served.

Had this been done in good time prior to the expiry of the period, then the difficulties that occurred would have been discovered in time for the defective service to have been rectified. Three weeks later on 14 May 2021 was far too late.

The Claimants’ applications were dismissed. The Claim Form was not validly served within the time available, and there is no relief which the court, in the exercise of its discretion, is willing to grant the Claimants to remedy this state of affairs.

Download the Judgment

What is a limitation period?

The law sets out deadlines for bringing legal claims, which are referred to as limitation periods. The purpose of limitation periods is to prevent legal claims from being brought too long after the cause of action accrued. The length of the limitation period varies with different types of legal claim.

Why is a limitation period for bringing a claim important?

Limitation is not something that should be ignored. Where a party has a strong case, but the limitation period has expired, the claim will be likely to fail. Even in unusual circumstances, where a party is prevented from issuing its claim in time for reasons beyond its control, the court has no discretion to extend the limitation period in this type of claim. It is, therefore, crucial that limitation issues are considered at the outset of any potential claims.

What can I do if my solicitor misses a limitation date?

Missing a limitation date leading to a claim becoming time-barred is an example of negligence. Contact our professional negligence solicitors as soon as possible. If the original claim had merit, then a claimant is entitled to pursue the errant solicitor or law firm for their loss of chance of success in the claim.

Common Examples of Solicitor Negligence

Examples of common claims against solicitors, barristers, patent attorneys and licenced conveyancers include:

  • Failing to provide correct legal advice: a claim can be brought if a lawyer has provided a negligent legal opinion, relied upon by a claimant, which has led to personal or financial loss.
  • Failing to fully investigate or properly evidence the claim: solicitors and direct access barristers may be negligent in not gathering all pertinent information to ensure a claimant’s case is successful e.g. by not obtaining witness statements which support the version of events.
  • Failing to fully warn the client on the risks: for example a solicitor will be negligent if a specific risk warning that a tax avoidance scheme might fail.
  • Missing a limitation date leading to a claim becoming time-barred:if the original claim had merit, then a claimant is entitled to pursue the errant solicitor or law firm for their loss of chance of success in the claim.
  • Failing to comply with a court order or deadline: if your claim has been struck out by the court after your solicitor or barrister breached an order of the Court (e.g. an unless order), then you may have a claim against the legal professional for poor performance of the litigation.
  • Poor performance of instructions: failing to adequately investigate title to property when acting for the buyer of a property; failing to advise on burdens affecting a property e.g. restrictive covenants, adverse rights burdening the property, failing to register a mortgage/debenture at Companies House if acting for a buyer client company.

What does this case mean for solicitors that miss a deadline?

This case ultimately highlights the significance of adhering to the Civil Procedure Rules 1998 which sets out strict deadlines for parties in terms of filing and serving documentation in relation to claims.  It also emphasises the professional standard that solicitors are required to uphold when performing duties for clients.

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Our team can provide the best expertise in advising on claims for compensation against professionals that have fallen below the required standard, which can cause financial or personal losses. We are experienced in bringing you successful claims against negligent solicitors, barristers, financial advisors, surveyors, valuers, architects, tax advisors and IFAs.

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