Solicitor “should not have served claim by post” after lockdown


Service by post: Not fair and reasonable after lockdown

A solicitor who served proceedings on a council by post two days after lockdown had gone into effect showed “poor judgement”, a High Court judge has ruled.

Mr Justice Julian Knowles set aside the summary judgment which was then awarded because the London Borough of Tower Hamlets did not serve an acknowledgement of service.

He said it was “incumbent” on the solicitor in the circumstances to contact the council and discuss how best to effect service.

Melanie Stanley is suing the council over a data protection breach that occurred when it shared her GP records with everyone who attended a child protection conference it convened to discuss the welfare of her daughter.

The council admitted the breach and apologised, and Ms Stanley then issued proceedings seeking damages of £10,000 for personal injury, principally psychological distress.

In January and February this year, her solicitor, a Mr McConville of Liverpool firm Irvings Law, twice sent a letter before action but received no reply. He was told by the council’s legal department that service of proceedings had to be by post.

Particulars of claim were drafted and signed off by counsel around 24 March and Mr McConville posted the documents on 25 March.

The council did not file an acknowledgment of service by the deadline of 9 April and Mr McConville applied for judgment in default, which was granted by Senior Master Fontaine on 17 April.

In applying to set aside the judgment, because it wanted to contest the claim, the council said it had shut its offices on 23 March in accordance with the lockdown, with staff working from home after that.

Though a skeleton staff was working at the council’s offices, they were “not familiar” with court proceedings.

It argued that Mr McConville acted unreasonably in effecting service by post when he knew the council’s offices were shut.

Julian Knowles J was satisfied that the council has “real prospects” of successfully defending the claim, and said that even if he was wrong about this, there was still good reason to set aside the judgment.

“That reason is the unprecedented national health emergency which was unfolding at precisely the time Mr McConville posted his documents to the council.”

He said Mr McConville’s witness statement was “entirely silent” as to why he thought it appropriate to post documents to the council’s offices “when he knew or should have known they were shut and the council was highly unlikely to be in a position to respond”.

Though the council “had not exactly covered itself in glory” with its failure to respond to the pre-action letters, that was “history” by the time of lockdown.

The judge continued: “Mr McConville took no steps to ascertain whether the papers had been received and were being processed. It is not good enough for him to say, as he does, that was because he was told in mid-February 2020 (some five weeks or so before lockdown) that service had to be by post, and so that is what he did.

“The world shifted on its axis on 23 March 2020 and it was incumbent on him as a responsible solicitor and an officer of the court to contact the council to acknowledge that the situation had changed, and to discuss how proceedings could best and most effectively be served.”

The council’s solicitor accused Mr McConville of ‘sharp practice’. Julian Knowles J said: “I do not find that he unscrupulously took advantage of the situation, but I do find he exercised poor judgement.

“A moment’s thought on his part would have shown that it was not fair or reasonable for him simply to place papers in the post to an office that he knew or should have known had been closed down two days before because of a national emergency.”

The judge went on to grant relief from sanctions – given that “the circumstances which led to the default were unique” – and gave permission to the council to file and serve an acknowledgment of service and defence.




Leave a Comment

By clicking Submit you consent to Legal Futures storing your personal data and confirm you have read our Privacy Policy and section 5 of our Terms & Conditions which deals with user-generated content. All comments will be moderated before posting.

Required fields are marked *
Email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Blog

23 November 2020

Technicalities and realities – the battle over clin neg ATE premiums

A paying party in a clinical negligence case is seeking to argue that a Tomlin order is not a relevant “order for costs” and therefore the ATE premium is not payable. This should be given short shrift.

Read More