Claim against law firm lost by court still thrown out for late service

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Vos: Deputy master got it right

The High Court has upheld a decision to throw out a negligence claim against a law firm because it was served too late – even though the court had actually lost the claim.

Robin Vos, sitting as a deputy High Court judge, said the litigant in person should have taken steps to find out why he had not received a sealed claim form from the court.

Eric Walton issued proceedings against Pickerings Solicitors over an alleged breach of undertaking as well as another party he alleged had procured a breach of contract.

He issued personally on 20 July 2020, the day the limitation period expired, paid the fee of £10,000 and was given a receipt.

He elected to serve the claim form himself as no particulars of claim had been prepared. Due to Covid, the court could not provide Mr Walton with a sealed copy of the claim form there and then.

Instead, it retained a copy to return to him once it had been sealed. Mr Walton notified the defendants that the claim had been issued and told them he would serve it when counsel had drafted the particulars.

Nothing further happened until November. The particulars were finalised on 13 November but Mr Walton still did not have a sealed claim form – it later turned out that the court had simply lost the claim.

On 17 November – three days before the deadline for service – he served the defendants with the unsealed claim form and particulars.

The next day, the other defendant asked for a copy of the sealed claim form. Mr Walton tried to contact the court “but with little success as nobody answered the telephone and the only email address he could find was for the Administrative Court Office”, Mr Vos recorded.

He went to the court in person on 25 November and discovered that it had no record of the claim. On 7 December, the court issued and sealed a claim form backdated to 20 July, which Mr Walton served immediately. He applied for an extension of time for service 10 days later.

Deputy Master Dray refused on the grounds that Mr Walton did not take all reasonable steps to effect service of the sealed claim form within the relevant time limit – he could and should have taken the matter up with the court before being asked on 18 November.

In any event, the deputy master concluded that Mr Walton had not made his application for an extension of time promptly. He declared the claim form a nullity and of no effect.

Among Mr Walton’s reasons for not chasing the court was that he assumed everything was just taking a long time because of Covid and that he did not want to visit the court in person in the light of Covid and his vulnerable status (he was 75).

But Mr Vos upheld the decision, agreeing that these were not good reasons “for not even making an attempt to contact the court either by telephone or email before 18 November 2020”.

He continued: “It may well have been the case that things were taking longer than normal as a result of the disruption caused by Covid but, with the knowledge that a sealed claim form had to be served by a particular deadline, it cannot be said to be reasonable to sit back and do nothing in the hope that it might arrive in time.”

The deputy master gave “appropriate weight” to the failure by the court to return the sealed claim form, he added.

“I also agree with the deputy master that another step which Mr Walton could have taken would have been to apply for an extension of time prior to expiry of the period for service.”

However, Mr Vos found the deputy master was wrong in the circumstances to find that Mr Walton had not acted promptly in applying to extend time.

But Deputy Master Dray said that, had he had to decide, he would have refused to exercise his discretion to extend time anyway, for the same reasons. Mr Vos found no flaw in his reasoning and said he would have made the same decision.

It was “entirely unreasonable” of Mr Walton to serve the unsealed claim form, knowing that this did not comply with the rules and having taken no steps to clarify the position with the court, and this outweighed the court losing his claim.

The judge also ruled that, even if he had power to do so, there was no good reason to make an order treating the service of the unsealed claim form as good service.