Kimbell: No exceptional circumstances
The High Court has thrown out a negligence claim for almost £1.3m served on a City law firm after the time limit for service had expired.
John Kimbell QC, sitting as a deputy High Court judge, said the claimants had made a “strategic decision” to issue but not serve the claim and, having agreed an extension, failed to serve it within that time.
The claim against City firm Wedlake Bell, as the successor practice to Cumberland Ellis, concerns advice given in 2011 to James Lonsdale over an accumulation and maintenance trust that the parties agreed was incorrect.
Mr Lonsdale instructed solicitors to send a letter before action to Wedlake Bell in October 2020, alleging that the advice given in June 2011 was negligent. The claim was valued at £1.3m.
London law firm Archer Evrard & Sigurdsson (AES) issued proceedings on his behalf in July 2021 against Wedlake Bell, Cumberland Ellis, the solicitor who made the error and QBE UK, Cumberland Ellis’s indemnity insurer.
AES sent the claim form to RPC – acting for the defendants – that month but not “by way of service”, making it clear it was not expecting a response and instead proposing steps towards mediation.
An extension in the time for service was agreed from 12 November to 1 December. On 1 November, RPC told AES that the mediation would have to take place in January 2022 and suggested extending agreeing to extend the service deadline again.
AES did not respond until after 7 December, asking for a further extension, but RPC refused. The claim form was served anyway on 19 January 2022.
Delivering judgment in Lonsdale v Wedlake Bell [2022] EWHC 2169 (QB), Judge Kimbell granted the defendants the declaration they sought pursuant to CPR 11.1 that the court did not have jurisdiction to hear the claim and it should be set aside “because it had expired by the time it was served”.
He rejected the claimants’ arguments in their application for relief. The judge said that, for the claimants to argue that the defendants were estopped from relying on the fact that the claim form had expired, there needed to be an “unequivocal representation” that they would not be relying on a procedural right under the CPR, which was not the case.
“It ought to have been obvious to any reasonably competent solicitor that there is all the difference in the world between inviting RPC to agree an extension before 1 December and inviting them to so after that date had expired,” the judge said.
“Before 1 December, if RPC declined to agree an extension, the claimants could have simply served the July claim form by sending it by post. By contrast, after 1 December 2021, with the claim form now expired, the option of serving in the absence of agreement was lost.”
He dismissed too the argument that the court should exercise its power under CPR 6.15(2) to declare that sending the claim form to RPC by email in July 2021 constituted ‘good service’.
The claimants “did not act with reasonable diligence” after RPC’s 1 November letter; rather they “courted disaster” by failing to respond to it until after the deadline had expired.
Judge Kimbell refused as well to dispense with service of the claim form under CPR 6.16, owing to ‘exceptional circumstances’.
“In this case, the claimants made a strategic decision to issue (but not serve) the July claim form in July 2021. They agreed one extension to the period for service but then failed to serve the July claim form within that period and failed to agree another extension.
“In the circumstances, this is not a case which can conceivably amount to exceptional circumstances to justify dispensing with service altogether.”
The judge added that a further claim form was issued by AES in mid-December last year, containing the same parties and “the same substantive claims” as the July claim.
He said the case management conference in the proceedings began by that claim had been stayed pending the hearing of the applications relating to the July claim.
Leave a Comment