Solicitors beware of missing court deadlines
The High Court recently held that it is incumbent on solicitors to ensure that the court receives a claim form within the limitation period and that court errors are no excuse for failing to do so. This case serves as a salient reminder of the dangers of failing to comply with procedural steps and should act as a warning for solicitors of the E&O risk of missing deadlines imposed by the court or the Civil Procedure Rules.
In Page v Hewetts the claim form was not issued by the court until after expiry of the limitation period and the claim was struck out at first instance on the grounds that it was time barred. The claimants appealed the decision and submitted evidence that the claim form had, in fact, been sent to the court by DX before the expiry of the limitation period. The claimants relied on CPR Practice Direction 7A (paragraph 5.1) and pleaded that the claim was brought when, on the balance of probabilities, the claim form was first received at the court office and not when a photocopy of the claim form was later reissued.
The judge found that for PD 7A to apply, the claim form in question had to be the same document as was eventually issued (a photocopy of the same document is insufficient). Her rationale was two-fold, first, that paragraph 5.2 states that the claim form is received by the court on the date of either the court stamp on the claim form itself or the date of the accompanying letter and, second, that paragraph 5.3 explains how to enquire as to the date on which the claim form was received. PD 7A was, instead, intended to rectify late issue through no fault of the claimant, e.g. where the court was simply slow to issue or where the court was unexpectedly closed on the last day before the limitation period expires.
She found that there were gaps in the claimants’ evidence and that there was no record of the claim form having been sent to the court. Further, the claimants had waited a considerable time before ensuring that the court had received the claim form and had failed to provide a plausible explanation as to this failure. Paragraph 5.4 of PD 7A states that “parties proposing to start a claim which is approaching the expiry of the limitation period should recognise the potential importance of establishing the date the claim form was received by the court and should themselves make arrangements to record the date.”
While this decision may seem austere, to have allowed the claimants’ appeal without sufficient evidence that the claim form had been filed at the original date would have been to open the floodgates to solicitors who simply forgot to file claim forms within the limitation period to plead that it was the court’s error. It is, presumably, for this reason that the judge drew the distinction between situations where the claim form that was received on the earlier date was the same as the claim form ultimately issued and where the claim form ultimately issued is a different document (albeit a photocopy of the same document). While this may seem an arbitrary distinction, where the limitation period is approaching expiry, PD 7A does put the onus very much on solicitors to ensure that the claim form is received by the court and that they record the date. Clearly, it is key to obtain a record of posting or, better, arrange for the document to be hand delivered.
This case highlights the court’s reluctance to be lenient on claimants where they have failed to comply with a procedural step. In one recent unreported case, a claim was struck out where the claimant had filed (just prior to the expiry of the limitation period) and served the claim form but had failed to serve Particulars of Claim within the time period for serving the claim form (see CPR 7.4(1) and (2)).
The moral of the story is to ensure that procedural steps and timelines are adhered to and not to leave things until the last minute. If a document does have to be filed close to the deadline, take steps to ensure that the court has received it.
This article first appeared in Law-Now, CMS Cameron McKenna's free online information service, and has been reproduced with their permission. For more information about Law-Now, click here.