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Solicitors PI: beware of missing procedural steps and deadlines

The recent case of Page and Another v Hewetts Solicitors and Another has provided clarity on the issue of whether failure to submit a claim form accompanied by the correct fee before expiry of the relevant limitation period results in a claim being time-barred. This case serves as a salient reminder of the dangers of failing to comply with procedural steps, providing a warning for all solicitors.

Facts

The Claimants sought to commence proceedings against the Defendants for breach of duty and for dishonestly procuring a secret profit on the sale of the Claimants’ property. Upon receiving the Defendants’ application for either summary judgment or strike out of the claims, the Court concluded that the claims were time-barred and fell to be dismissed.

The Court of Appeal overturned the dismissal in so far as it related to the secret profits claim on the basis that the issue should not have been dealt with summarily but required a proper examination of the evidence. Subsequently, the Court of Appeal returned the case to the High Court for the issue to be heard as a preliminary issue, i.e. whether the claim had been brought in time for limitation purposes. The time on the secret profits claim had begun to run on 6 February 2003.

The Claimants argued that the Claim Form and Particulars of Claim had been filed with the Court by DX, accompanied with a cheque for £990 on 3 December 2008. Nevertheless, the Claim Form was only issued by the Court on 17 February 2009, as there had been a £400 shortfall in the accompanying fee that was only remedied on that date.

The Decision

Upon hearing the preliminary issue, the Court held that the claim had not been brought in time, as the correct fee had not been paid within the limitation period. The Court held that:

• the Claimants failed to discharge the burden upon them: they had not established that it was more likely than not that the December documents had arrived at the Court and gone astray there. In short, the Claimants had no system to record that the documents had been sent (and when), whereas the Court did have a system of recording receipt and there was no evidence to counter the lack of noted receipt by the Court. The matter, therefore, had to be resolved on the basis that the required documents had not been received and the Claims could not be said to have been issued before 6 February 2009;
•inclusion of the appropriate fee had been identified by the Court of Appeal, when deciding whether to overturn the dismissal, as being an essential requirement in order for the documents to be complete. The judge hearing the preliminary issue considered that the key issue was whether the Claimants had done all that could reasonably be expected of them; he found that they had not. Accordingly, the failure to offer the appropriate fee meant that the Claimants had not done all that had been required of them and they had left it too late to correct the error.

Comment

The case highlights the Court’s reluctance to be lenient on parties where they have failed to comply with procedural rules and time limits. To avoid such a scenario, it is advisable to get Court documents issued personally or to at least have adequate sending records and leave time to correct any issues that might arise.

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.

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