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Judge rejects attempt to rescue trainee’s claim form error in £700k case

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No leniency shown to rookie who forgot to serve paperwork, despite pandemic

A judge has refused to give any leeway to solicitors who missed a claim form deadline by four days during the pandemic.

Mrs Justice O’Farrell rejected an application by national law outfit Ashfords to reopen a case in which a trainee solicitor omitted the claim form in litigation against a construction company.

Ashfords bigwigs blamed coronavirus for the mix-up, which happened in September 2020.

The case involved Ashfords client Boxwood Leisure which was suing construction giant M J Gleeson over alleged defects in a Sidcup leisure centre. Boxwood claimed £683,212.66 in damages for the cost of remedial work, issuing proceedings on 24 March 2020.

The legal team secured an extension to the usual deadline for serving the claim form and particulars of claim. The extension gave Ashfords until 10 September to serve the paperwork on M J Gleeson and its solicitors, Systech.

A trainee solicitor sent through the particulars of claim, along with some other documents, on 8 September. But, the High Court records, “the documents sent to Systech did not include the claim form”.

A Ashfords partner returned from annual leave the following week and picked up the mistake. The firm served Systech with the claim form on 14 September, four days late.

The defendant solicitors were having none of it. Their reply:

“We refer to your emails of 8 and 14 September 2020. The Claim Form was not served by 10 September 2020, as ordered by O’Farrell J. No application to extend the time for compliance under CPR r.7.6(3) has been made. The purported proceedings are therefore a nullity.”

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In an attempt to retrieve the situation, Boxwood asked the court to overlook the missed deadline. Its application to the court invoked Civil Procedure Rules 3.9 (“relief from sanctions”) and 3.10 (“General power of the court to rectify matters where there has been an error of procedure”).

The partner explained that “the Covid-19 pandemic disrupted our usual working arrangements for ensuring that we comply with Orders”, with the digital-only order not entered into a firm-wide diary as it normally would have been. Instead, it only made it into her diary, and the deadline elapsed while she was on holiday.

Boxwood’s QC argued that the oversight was rectified within a matter of days and with no prejudice to the defendant.

But Mrs Justice O’Farrell ruled that the court had no power under rules 3.9 or 3.10 “circumvent the specific conditions set out in CPR 7.6(3) for extending the period for service of a claim form”.

Even if the court did have that power, it would not have exercised its discretion in Boxwood’s favour, O’Farrell held.

Commenting on the firm’s coronavirus excuse, the judge said:

“I accept that working away from the office during the pandemic would reduce the oversight of more junior practitioners that would be normally present and could allow mistakes to slip through the net. However, having issued proceedings in circumstances where limitation was a live issue and where Gleeson had objected to the requested extensions of time for service of those proceedings, it was incumbent on the solicitors to ensure that the extended dates ordered by the court were met.”

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12 Comments

Martin

Hardly surprising. Mistakes happen, but so do consequences.

Poem For Your Counsel

“God damn!” exclaimed the partner,
“We’ve really dropped the ball!”
Their PA quipped “You didn’t help
or supervise at all.”

“I’ll fix our reputation”,
Said the partner, filled with glee,
“We’ll do what’s always done,
and pin it all on the trainee!”

Anonymous

This isn’t the trainee’s mistake – this is the mistake of the qualified solicitors tasked with his/her supervision.

Nuance

I disagree. The trainee clearly made a mistake. However, while it is the trainee’s mistake, it is the partner’s responsibility. So I agree with the sentiment of your comment.

Good Game

Don’t leave a trainee to submit vital documents without supervision then…

Anon

These cases are pretty clear, if you wait to the last minute then you basically take all the risk.

legal genius

article doesnt mention limitation – assuming its not beyond 6 years just re-issue…

Alan Robertshaw

The judge did mention something about “having issued proceedings in circumstances where limitation was a live issue”.

So it might be they’re out of time; otherwise they’d probably just be looking at a fresh issue fee and some costs.

But to quote Lord Sumption:

“(H)aving issued the claim form at the very end of the limitation period and opted not to have it served by the Court, he then made no attempt to serve it himself until the very end of its period of validity. A person who courts disaster in this way can have only a very limited claim on the court’s indulgence in an application under CPR rule 6.15(2).”

https://www.bailii.org/uk/cases/UKSC/2018/12.html

Sam

How’s this justice?

Anon

Clearly not a lawyer’s comment

Anon

Wait 6 years, sue the trainee, include the claim form in the letter.

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