Negligent solicitors’ late service of Claim Form leads to wasted costs order

The recent High Court case of Jovicic & Ors v The Serbian Orthodox Church-Serbian Patriarchy [2020] EWHC 2229 (QB) is yet another case highlighting solicitor negligence where service of the claim form is left until the last minute which resulted in a wasted costs order made against the client.

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Proceedings issued outside of jurisdiction

In the High Court case of Jovicic & Ors v The Serbian Orthodox Church-Serbian Patriarchy [2020] EWHC 2229 (QB), the Claimant sought to issue six separate claims for personal injuries allegedly occurring in Bosnia, Serbia and Croatia between 1998 and 2014. None of the accused had any connection to England and Wales however an English firm of solicitors was instructed and subsequently issued proceedings on behalf of the Claimant.

It is not clear whether the firm advised the Claimant in relation to jurisdiction or understood the Civil Procedure Rules on serving a claim outside of the jurisdiction.

The Defendant’s solicitors, DWF LLP, wrote to Kesar & Co at the outset of the matter upon receipt of the letter before claim in February 2018, highlighting the potential issue as to jurisdiction and service and the parties engaged in protracted correspondence between 6 April 2018 and 16 July 2018. Kesar & Co still proceeded to issue the claims on 8 January 2019. The Defendant and its legal representatives continued to warn Kesar & Co and maintained the position that the English courts did not have jurisdiction to hear these claims.

When did the solicitors have to serve the claim form?

Proceedings were issued on 8 January 2019 and pursuant to the four month time limit stipulated by rule 7.5 of the Civil Procedure Rules, service of the claim form was required to be effected before midnight on 8 May 2019.

Rule 7.5(1) : Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

Rule 7.5 of the Civil Procedure Rules

Solicitors’ negligence to serve claim form in time

Kesar & Co failed to serve the claim forms on time and on 28 May 2019, the solicitors’ firm applied to the Court for an extension of time on the basis that they had not been able to obtain the necessary medical evidence to accompany the particulars of claim. If the application was deemed issued on 28 May 2019, this was out of time.

According to his witness statement filed in the proceedings, Mr Kesar’s position was that he reasonably believed he had made an in time application for an extension of time to serve the claim form. Mr Kesar claimed to have sent emails to the Court and the Defendant on 7 May 2019 (a day before the deadline) filing applications to extend time for service of the claim form however the Court had no record of these emails and hard copies of the application were only filed on 28 May 2019.

On 31 May 2019, the Defendant’s solicitors noted that the application had been issued and had been listed to be heard on 12 July 2019. On 2 July 2019, Kesar & Co purported to serve the claim form and particulars of claim by post. Kesar & Co failed to attend the hearing of the application on 12 July 2019 and no attempts were made to revive or relist the applications.

The critical factor when determining if an application under CPR 7.6 will be successful is the efforts the claimant has taken to serve the Claim Form during the whole four month period of its validity (Hallam Estates Ltd -v- Baker [2012] EWHC 1046 (QB) [18] per Tugendhat J). There must be a “good reason” for the failure to properly serve the Claim Form (Hashtroodi -v- Hancock [2004] 1 WLR 3206 [19] per Dyson LJ).

Court orders wasted costs following solicitors’ errors

The Judge commented that Mr Kesar seemed to have no proper understanding of the effect of CPR 7.5 or the difficulty presented by CPR 7.6(2). The Judge concluded that the application for an extension of time had in fact been made to the court after the time specified by CPR 7.5 and that a good reason must be shown for extending the time for service of the claim form in any application.

The court accepted the Defendant’s submissions that the solicitors had issued and purported to serve six actions in England & Wales, in respect of which the court had no jurisdiction over the Defendant or indeed any defendant who could arguably be responsible for the matters complained of, and held this to be one of the primary reasons in ordering the Claimant to pay the Defendant’s wasted costs. The Judge commented that the decision to bring proceedings in this jurisdiction was “quite plainly unjustifiable“. In his final comments below, Master Cook held that it was just in all the circumstances for Kesar & Co to pay the entirety of the costs incurred by the Defendant on the indemnity basis from 27 December 2018.

The Defendant has been forced to come to this jurisdiction to deal with issues that I have taken the view no responsible solicitor could have continued to pursue

This judgment serves as a stark reminder that strict adherence to the CPR is vital and the consequences of failing to do so can be fatal to any litigation, which is why you should instruct specialist litigation solicitors, who are well versed with the Civil Procedure Rules and processes that need to be followed in litigation. In this case, there would be strong grounds for a professional negligence case against Kesar & Co,k which would enable the Claimant to seek damages from them (other common examples of solicitor negligence can be read below).

Download the Judgment

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 supports 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.

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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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