5 March 2020 | Comment | Article by Charlotte Wright

Court of Appeal highlights risks associated with leaving service of claim form until last minute

Issuing a claim form at court and serving a claim on a defendant are crucial steps for any claimant. If those steps are carried out incorrectly, then the entire claim is placed in jeopardy. If a claimant gets this process wrong, it can have potentially catastrophic consequences for their case. The stakes are particularly high for a claimant when the claim being pursued is very close to the expiry of the relevant limitation period for bringing the case.

If a claim has not been issued or served correctly, the defendant can seek to strike the claim out in its entirety.

This very issue has recently received attention from the Court of Appeal. In the case of Woodward –v- Phoenix, the court was asked to consider whether a defendant’s solicitor has a duty to place a claimant on notice of any mistakes it has made, which could invalidate the claim.

Background

The claim in Woodward v Phoenix arose out of a £5 million contractual dispute. It was argued that the claimant only had until 20 June 2017 to issue the claim. The claimant’s solicitor issued the claim form at court on 19 June 2017. In accordance with the court rules, the claimant had four months to then serve the defendant with the issued claim form.

A claim form should be served directly upon a defendant, unless the defendant has confirmed that they have a solicitor who is authorised to accept service.

In this case, the claimant’s solicitor did not check whether the claim should be served on the defendant or his solicitor and instead simply sent the claim form and accompanying documents to the defendant’s solicitors by first class post on 17 October 2017. They also sent the same documents by email to the defendant’s solicitor’s firm on 17 October 2017. It was not until 20 October 2017 that the defendant’s solicitors wrote to the claimant’s solicitor informing them that they were not instructed by the defendants to accept service of proceedings. Accordingly, the documents had not been validly served and the claimant was out of time for bringing the claim. The claimant’s solicitor immediately sent the documents by courier to the defendant, and they were received on 20 October 2017.

The court was asked to determine if it would allow the claimant to bring the claim in the circumstances, or whether the claim was out of time and as a consequence the claimant was prevented from bringing the claim.

The original decision

The court decided that whilst the claim form had been served outside the relevant time period, the court would retrospectively validate the service of the claim form, allowing the claimant to bring the claim. This was on the basis that the defendant’s solicitors had taken advantage of their opponent’s mistake. The court felt that the defendant’s solicitor had engaged in “the deliberate playing of a technical game” and that accordingly “validation does no more than to preclude Phoenix from procuring a windfall”.

The defendant appealed the decision to the High Court.

The High Court allowed the appeal holding that “a solicitor who has in no way contributed to a mistake on the part of his opponent, or his opponent’s solicitor, [is not required] to draw attention to that mistake. That…does not amount to ‘technical game playing’…the mistake had not been of the defendant’s making, or that of his solicitors, and had arisen in a situation which did not call for a response.”

Court of Appeal decision

This time, the claimant appealed the High Court decision. The Court of Appeal agreed with the judge in the High Court that if a claimant leaves issuing or serving a claim until the very last minute then that claimant must be prepared to suffer the consequences of not carrying out those steps correctly.

Conclusion

The Court of Appeal decision made it very clear that a court will consider the rules surrounding service of proceedings very strictly. It also determined that a party is not required to alert its opponent to (potentially catastrophic) procedural mistakes that have been made in the litigation.

This case is a stark reminder of the importance of validly serving the claim form and particulars of claim within the relevant limitation period.

This blog was prepared by Charlotte Wright (Solicitor) and Abigail Flanagan (Senior Associate) of the professional negligence team.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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