The recent judgment made by Mr. Justice Nicklin in London Borough of Ealing v Persons Unknown  EWHC 2132 (QB) reiterates the importance of the duty to comply with the Civil Procedure Rules 1998 (“CPR 1998”) in relation to the service of the Claim Form, regardless of the individual circumstances of the case. The outcome of the former demonstrates the potentially negative impact that a failure to closely adhere to procedural rules can have on a Claimant’s chances of success.
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What were the facts of the case?
The claimant in this case brought proceedings against ‘persons unknown’, seeking injunctions and possession of land occupied by such persons. The Application Notice did not contain any application for an order for alternative service of the Claim Form, nor were the requirements of service of the Claim Form addressed in this case.
Furthermore, as a result of the application for alternative service having not been addressed at the hearing, the terms of the order were not compliant with s6.15 (4) CPR 1998, which necessitates the receipt or acknowledgment of service. During the case, the Claimant’s representation contested that despite the failings in procedural adherence, the Court should invoke s3.10 CPR 1998, which affords a general power to the Court to rectify matters involving an error of procedure. Despite demonstrating an acknowledgement of their failure to follow procedural regulation, the Claimant’s representation contended that such failure should not lead the Court to conclude that the service of proceedings was invalid.
In their judgment, the Court rejected the claims made by the Claimant, finding that s3.10 CPR 1998 could not be used in these circumstances. It was considered that the Claimant failed to make an application for an order for alternative service of the Claim Form under s6.15 CPR 1998, nor was an application made orally before Lang J. The skeleton argument for this case made only passing comment to the service of the Claim Form, noting the matter as ‘paperwork’. The latter was deemed unfit to constitute the requirements under s6.15 (2) CPR 1998.
The Court emphasised that the error in this case could not be attributed to a mistake regarding the way in which the application was made, but rather that no application was made at all. This could not be rectified under s3.10 CPR 1998 and thus negatively impacted the outcome of the Claimant’s case, with a formal discharge of the injunction in place at the time.
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What is meant by service of the Claim Form?
Service of the Claim Form acts as a fundamental procedural element of the litigation process. It refers to a legal notice provided to the defendant to notify them of the Court’s exercise of its jurisdiction over the defendant, thus enabling the defendant to respond before the Court. If this service is not administered correctly and during the limitation period, then the claim can become time-barred under the Limitation Act 1980, meaning that the time to bring the claim forward has passed.
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.
What does this case mean for solicitors that fail to adhere to procedural rules?
This case ultimately highlights the significance of adhering to the Civil Procedures Rules 1998 which sets out strict duties and 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.
What can I do if my solicitor fails to adhere to procedural rules?
Failing to follow procedural rules 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 licensed 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 a 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 professional for poor performance of the litigation.
- Poor performance 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.
My solicitor has been negligent
A solicitor must hold a greater professional standard of care in servicing their client’s affairs however solicitors on occasion fail to act in their client’s best interest. As a matter of conduct, solicitors are highly regulated and owe their clients a contractual, statutory and tortious duty of care. The last thing you expect when you hire a professional is for them to be negligent. Professional negligence claims against members of the legal profession tend to be complex in nature and argument. Professional indemnity insurers will often instruct a specialist City of London law firm to defend claims vigorously, thus it is essential to take legal advice at the outset from our expert professional negligence team.
We understand as lawyers where solicitors go wrong and where solicitors have failed to act upon their client’s instructions.
Instruct Specialist Professional Negligence Solicitors
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LIMITATION ACT 1980 – WARNING
The Limitation Act 1980 sets out strict statutory deadlines within which you must bring litigation claims. Your legal rights will become irreversibly time-barred if you fail to take legal action (or defend a claim on time). Therefore, you should seek specific legal advice about your legal dispute at the very first opportunity so that you understand the time you have left. Failure to take advice or delay in taking action can be fatal to your prospects of success.