Solicitor’s Negligence: The perils of serving an unsealed Claim Form

In Ideal Shopping Direct Ltd & Ors v Visa Europe Ltd & Ors [2020] EWHC 3399, the High Court confirmed that a claimant’s service of their unsealed amended claim forms upon the defendants did not constitute good service. All of the claimants’ applications for relief were also rejected by Mr Justice Morgan. This case is the latest in a long line of cases (such as Woodward -v- Phoenix healthcare Distribution Ltd [2019] EWCA Civ 985) which highlight the dangers of leaving service of the claim form to the last minute.

Solicitors are highly regulated and owe their clients a contractual, statutory and tortious duty of care to act in their best interests. We understand as lawyers where solicitors go wrong and where solicitors fail to act in their client’s best interests to effectively act upon their client’s instructions.

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 and therefore it is essential to take legal advice at the outset from our expert professional negligence team.

Time for service

The Court has tirelessly reiterated that there are no exceptions made for litigants in person, who must comply with the same pre-action protocols and procedural rules as solicitors, as held in the similar case of Barton v Wright Hassall

The Facts

The court has held that serving unsealed amended claim forms was not good service and refused relief under CPR 6.15, 6.16 or 3.10.

A number of claim forms had been issued, but both parties agreed to await a Supreme Court decision in similar proceedings before service of proceedings. The claimants sent unsealed copies of the claim forms to the defendants for information only, and a number of extensions of time for service were agreed, the last one expiring on 17 July 2020. After the awaited Supreme Court decision was handed down on 17 June 2020, the claimants amended the claim forms and filed the amended ones via CE-File on 17 July 2020. The claimants served unsealed amended claim forms on the defendants later that day.

The defendants applied for orders that the claim forms had not been served in time.

The Judgment

The overall result is that Mr Justice Morgan held that the claim forms in these proceedings had not been served and he declined to grant relief to the claimants under rules 6.15, 6.16 or 3.10.

In the present case, I have to ask whether there is good reason for the court to make the order sought by the Claimants under rule 6.15…In this case, the Claimants did not take steps to effect service in accordance with the rules. The step which they took, sending an unsealed amended claim form to the Defendants’ solicitors was not in accordance with the rules. It would have been straightforward for the Claimants to have served the original claim forms, or the amended claim forms, in accordance with the rules.

Mr Justice Morgan, Ideal Shopping Direct Ltd & Ors v Visa Europe Ltd & Ors [2020] EWHC 3399

Mr Justice Morgan went on to highlight that a mistake by solicitors is not a good reason to grant relief from sanctions:

The answers are that the Claimants did not take reasonable steps to effect service in accordance with the rules and that the Defendants would suffer prejudice if an order in the Claimants’ favour were made under rule 6.15 but, conversely, the Defendants’ solicitors were aware of the contents of the claim form before the time for service expired. I now need to stand back and ask: is there a good reason to treat the service of an unsealed claim form as good service? My conclusion is that there is not a good reason to do so. The reason why the Claimants are in this position is the mistake made by their solicitors. That is not a good reason for making an order under rule 6.15. I consider it to be a bad reason for the suggestion that I should make such an order.

Mr Justice Morgan, Ideal Shopping Direct Ltd & Ors v Visa Europe Ltd & Ors [2020] EWHC 3399

Download the High Court Judgment

Upon whom the Claim Form must be served

The Court again dealt with this issue swiftly as CPR Part 6 is clear upon whom a Claim Form must be served.

For service to be deemed effective on a firm of solicitors, the conditions in CPR 6.7 below must be true:

(1) Solicitor within the jurisdiction: Subject to rule 6.5(1), 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,

the claim form must be served at the business address of that solicitor.

The implications of leaving service of a claim form until the last minute

Justice Nicklin in Piepenbrock v ANL [2020] reiterated that it is very “unwise” for any Claimant to adopt a non-engagement approach, which as in this case, can cause your claim to be dismissed. Justice Nicklin also noted that, as long as defendants do nothing to mislead or obstruct, they can hardly be criticised if they decided to follow Napoleon’s advice ‘not to interrupt an enemy when they were making a mistake’, thereby restating the argument from Woodward -v- Phoenix healthcare Distribution Ltd [2019] EWCA Civ 985[44-47] (which Lexlaw were instructed on) that there is no duty on a defendant to warn a claimant about failure to validly serve a Claim Form.

This judgment serves as a stark reminder, to both litigants in person and solicitors alike, 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. Had the Claimant done so in this matter and the solicitor then failed to serve the Claim Form, there would be strong grounds for a professional negligence case which would enable him to seek damages from them (other common examples of solicitor negligence can be read below).

You can read the full judgment here.

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.

Looking for a solicitor that can offer a DBA in your professional negligence claim?

When you instruct us to resolve your legal problem, your case will be dealt with by highly qualified and experienced lawyers. We understand the importance of promoting and furthering individual access to justice particularly during these unprecedented and uncertain economic times. Our work on ensuring DBAs are accessible to all has made the national headlines and is the subject of a leading UK High Court case.

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. The strength of the legal teams available to our clients helps ensure matters are progressed efficiently and the very best results are obtained for our clients.

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. Our team have expertise in advising on claims for compensation against professionals that have fallen below the standard expected, which causes clients financial or personal loss. We are experienced in bringing successful claims against negligent solicitors, barristers, financial advisers, surveyors, valuers, architects, tax advisers and IFAs.

Call Now search previous next tag category expand menu location phone mail time cart zoom edit close