Trainee’s lockdown-induced error leads to claim’s failure

O’Farrell: Error was unfortunate

There was nothing in the CPR that could make good a mistake by a trainee solicitor in not serving a claim form in time, even though it was down to the disruption of Covid, the High Court has ruled.

Mrs Justice O’Farrell said that, though the mistake was “unfortunate”, she would in any case not have granted relief from sanctions had she been able to.

A court order in April 2020 extended to 10 September the time for service of the claim form in a £700,000 action brought by Boxwood Leisure over the faulty construction of a leisure centre in Kent.

On 8 September, a trainee solicitor at Boxwood’s solicitors, Ashfords, sent the defendant’s solicitors the particulars of claim, acknowledgement of service forms and initial disclosure – but not the claim form.

Ashfords realised what had happened on 14 September and sought to serve the claim form.

Mathilda Traill, a solicitor at Ashfords, said in a witness statement that the fact the court order had been received electronically during lockdown disrupted the firm’s usual working arrangements for ensuring compliance.

The service deadline “was not added to everyone’s diaries in the way that it normally would have been” had there been a hardcopy and the need to serve the claim form “simply slipped through the net”.

She told the court: “I am sure that if we had all been working in the office as usual over the summer months, this would have been avoided, because it would have been properly diarised, or someone would have noticed during the course of our day-to-day engagement, interaction and meetings which have been absent for so long.”

Applying for relief to serve the claim late, Boxwood argued that the failure to serve the claim form in time amounted to a breach of the order rather than a failure to comply with the service rules in CPR 7.5 and/or 7.6.

This meant the court could either grant relief from sanctions under CPR 3.9 or use its power to rectify an error of procedure under CPR 3.10.

O’Farrell J disagreed. She ruled that if a claimant applied for an extension of time for service of the claim form either after the period for service specified in CPR 7.5(1), or after any alternative period ordered under CPR 7.6, the court’s power to grant it was circumscribed by the conditions in CPR 7.6(3).

The case law showed that “a claimant is not entitled to rely on the wide, general powers under CPR 3.10 or CPR 3.9 to circumvent the specific conditions set out in CPR 7.6(3) for extending the period for service of a claim form”.

Here, the claimant had failed to comply with CPR 7.6(3). Boxwood had not made an application for an extension of time and, even if it had, it did not meet the requirement that it “has taken all reasonable steps to comply with rule 7.5 but has been unable to do so”.

The judge explained: “The unfortunate mistake by Boxwood’s solicitors resulted in no steps being taken to serve the claim form by 10 September 2020. Therefore, Boxwood could not establish that it took all reasonable steps to serve the claim form within the extended time period ordered by the court.

“Finally, the words used in CPR 7.6(3) are clear. The court does not have power to extend the time for service of the claim form where the specified conditions have not been met.”

O’Farrell J said that, even if she could have granted relief from sanctions, she would not have done so.

Applying the Denton test, she described the breach as “serious and significant” and there was no good reason.

“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 [the defendant] 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.”

Finally, considering all the circumstances, “it would not be appropriate in this case to deprive [the defendant] of any accrued limitation defence by extending time for service of the claim form”.

For similar reasons she would not have exercised her power under rule 3.10. “The court’s other general case management powers and the overriding objective would not lead to any different conclusion,” she added.

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