Claim against law firm lost by court can proceed, appeal judges rule

Nugee: Draft judgment withdrawn

A claim against a law firm thrown out for being served too late can now proceed after the Court of Appeal held that the claim form was sealed with the wrong date.

Lord Justice Nugee said the fees office at the Royal Courts of Justice was wrong to have sealed a claim form in early December 2020 but backdated it to 20 July.

He also took the unusual step of withdrawing part of the court’s draft judgment after giving his view on a point only raised during oral submissions by one party, against which the other side sought permission to appeal to the Supreme Court.

The RCJ had apparently lost the claim form lodged by Eric Walton against Pickering Solicitors over an alleged breach of undertaking and against another party, despite him attending the court office on 20 July and paying the £10,000 fee.

After having to resubmit the claim form on 30 November, he received the sealed form from the court on 7 December, but it was backdated to 20 July.

Though he served it within a matter of days, it was only valid for service for four months and so the claim was already out of time.

Deputy Master Dray refused Mr Walton’s application for a retrospective extension of time for service, a decision upheld by Mr Robin Vos, sitting as a deputy High Court judge.

Overturning them, Nugee LJ held that the court had no power to seal the claim form with a date other than that on which it was actually sealed.

He said: “If the question had been asked on 20 July 2020, or on any date between then and 30 November 2020, ‘Have the proceedings been started?’, the only answer that could have been given would have been ‘No’, because the claim form had not yet been sealed and issued.

“In those circumstances, in the absence of any express power in the rules, I have great difficulty in seeing how the court by sealing the claim form on 1 December could change the answer to that question.

“Backdating the seal to 20 July 2020 clearly does not mean that the proceedings were in fact issued on that date as we know for certain that they were not.”

There was no reason to read into CPR 7.2(2) – on starting proceedings – a deeming power on the court to select some date other than the actual date of sealing.

Allowing the court to backdate the date of issue, “as the facts of the present case demonstrate in dramatic fashion”, would give the claimant less time to serve than the rules on their face permit him to have – or no time at all, as here.

Pickerings also argued that being right on the backdating would do the claimant “no good” as the claim would be statute-barred – the key event in the underlying matter was 29 July 2014.

Nugee LJ recounted that, in his draft judgment, he considered this and expressed his views. In response, the claimant submitted that this was unfair as the point had not been raised below or in the skeleton arguments, and only first raised in counsel’s oral submissions.

On this basis, he sought permission to appeal to the Supreme Court.

Nugee said: “I have concluded that the better course in the circumstances is to withdraw that part of my draft judgment. It would not be appropriate to grant permission to appeal on a point of procedure on which the Supreme Court would not have the benefit of any consideration by a lower court of the arguments [the claimant] now wishes to deploy.

“On the other hand I am persuaded that the point is more intricate than at first appeared and that to rule against him without his having the opportunity to deploy his arguments would indeed be unfair.

“The court has undoubted power to withdraw its draft judgments in whole or in part, which are of course only drafts, and although this is not something the court is readily persuaded to do, it is in my view the better course in the circumstances.”

Nugee LJ said the draft judgments “should be regarded as if they had not been written: they are, as the rubric on every draft judgment says, unapproved and not to be used in court”.

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