Raeburn: Finality of litigation
The High Court has thrown out a professional negligence action against a City law firm because of the claimant’s failure to serve the particulars of claim in time.
Deputy Master Raeburn refused relief from sanctions and declared that the court had no jurisdiction as a result.
The claimant, Lynda Joseph, wanted to sue McFaddens for alleged negligence over advice in 2017 on a facility agreement secured by a second charge on her property.
She first brought a claim against the firm in summer 2019 for “mis-selling of a financial product and subsequent punitive damages from being evicted”, but this was struck out because it disclosed no grounds for bringing the claim.
The claim form for the second claim was issued on 28 June 2023 and served on 18 October. The particulars were posted on 30 October and received by the defendant on 1 November.
The claimant argued that, on the basis that the latest time to serve the claim form included the additional two business days for deemed service (taking it to 31 October), service of the particulars was in time.
Deputy Master Raeburn disagreed, saying that the concept of deemed service was relevant for other purposes in the course of proceedings, but not this one.
Even if it did, he added, service of the particulars was still late. “Taking that approach, it would logically follow that the concomitant deeming provisions for the service of the particulars of claim would also be relevant in determining when ‘service’ took place.
“In this case it would result in the particulars of claim being deemed served on 1 November 2023 which is, in any event, after the latest time for the service of the claim form (where that is to be regarded as) 31 October 2023.”
The claimant was a litigant in person, although represented by a direct access barrister, and in seeking relief from sanctions for a retrospective extension of time, cited personal circumstances and work pressures in late October.
She added: “I perhaps unwisely had an idea in my mind that of counting days for service should be working days only and I became too complacent about the need for timely service.”
Refusing relief, the deputy master said it was clear from the evidence that the claimant knew of the deadlines and could have sought an extension.
“Whilst the first claim is said to be different to the current claim in this court, it is clear that the issues arise out of similar facts. The first claim was issued in 2019 and there is no good reason advanced as to why it took until October 2023 to particularise the current claim.”
He added that “a considerable amount of court resources has been devoted to the issues between the parties” and there was “a clear interest in finality in litigation”.
Deputy Master Raeburn dismissed the claimant’s application.
Leave a Comment