Case Study: High Court strikes out claim for failure to serve the particulars of claim in time

The case of M/S Unique Part Trading LLC & Anor v Regal Lodge Road Ltd [2020] EWHC 3871 (Ch) was struck out by the High Court due to the claimants solicitors’ failure to serve the particulars of claim on time in accordance with the Civil Procedure Rules 1998 (“CPR 1998”).  The underlying case involved a dispute regarding the deposit paid for the purchase of a property and demonstrates another warning by the Courts that non-adherence to the CPR 1998 will lead to claims being struck out.

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What were the facts of the High Court case?

Although the claimants did serve a claim form on 17 January 2020, they failed to serve the particulars of claim by the deadline of 31 January 2020 and did not apply to the court for an extension of time, prompting the defendant to seek an order to strike out the claim under Rule 3.4 of the Civil Procedure Rules 1998.  

This was a result of the serious failure of the claimants’ solicitor as when the claim form was sent, she stated that the particulars of claim would be served separately in due course. However, the particulars of claim were not sent within the time limit in accordance with Rule 7.4 of the Civil Procedure Rules 1998 which states that if the particulars of claim are not contained in or served with the claim form, they must be served within 14 days after service of the claim form. 

The appeal to set aside the strike out application

The claimants then made an application to appeal the court’s decision and have the order striking out the action set aside.  Draft amended particulars of claim that was provided by the claimants’ solicitor on 9 March 2020, beyond the deadline, was not verified by a statement of truth by the claimants, rendering it invalid.  Therefore, the defendant’s solicitor pointed out the rule in the case of Denton v TH White Limited [2014], which states that relief can be granted for breaches which are not considered to be serious or significant. Thus, the claimants were required to justify an extension of time for serving the particulars of claim late.

The Judgment

Despite the claimants’ arguments in light of the appeal, Mr Justice Miles, stated that the late service of the particulars of claim was a “serious failure” and “that there was no adequate explanation for the delay”:

The Deputy Master gave an ex tempore judgment immediately after hearing submissions. He decided that the failure to serve the particulars of claim was a serious failure. He decided that there was no adequate explanation for the delay. He then went on to consider the third limb of the Denton test, namely, all of the circumstances of the case. He decided that the defendant had not been opportunistic in applying to strike out without warning the claimants. He gave some weight to the failure of the claimants to pay the earlier costs order of Trower J. He noted that there was still no signed statement of truth on the draft particulars of claim. He took account of the risk that if he did refuse to set aside the earlier order and the claimants brought a fresh claim, the defendant might apply to strike that out too but concluded that that was not a reason for refusing to strike out. He declined, in all the circumstances, to set aside the earlier order. He did not expressly refer to the concept of the proportionality of the outcome.

M/S Unique Part Trading LLC & Anor v Regal Lodge Road Ltd [2020] EWHC 3871 (Ch) at para 12

At the time the claimants made their application to overturn the order to strike out the claim, they had still failed to rectify their mistakes as they had not requested an extension of time in accordance with Price v Price (t/a Popppyland Headware) [2003], nor had they served the particulars of claim with a statement of truth or paid the outstanding costs owed to the defendant.  Thus, the judge decided to uphold his decision to strike out the claim, dismissing the claimants’ appeal as they had not attempted to mitigate their circumstances by taking the appropriate causes of action.  

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.

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.

The solicitor in the case of M/S Unique Part Trading LLC & Anor v Regal Lodge Road Ltd [2020] was negligent by failing to comply with the deadline for serving the particulars of claim. 

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

We are a specialist City of London law firm made up of Solicitors & Barristers operating from the only law firm based in the Middle Temple Inn of Court adjacent to the Royal Courts of Justice. The firm is made up of exceptional lawyers who are practising solicitors and barristers supported by high quality paralegals, legal apprentices and other legal support staff. We regularly work in conjunction with leading Queen’s Counsel and junior barristers from chambers predominantly in London near to our own chambers in Middle Temple.

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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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.

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