Walton v Pickerings Solicitors – Court errors and service of claim forms out of time

03 Aug 2022

Introduction

Any experienced contentious dispute practitioner would have at least half a dozen stories about failures in the Court machinery, ranging from issues such as documents being sent to the wrong Court on a transfer of proceedings, to attending for listed hearings to discover that no sitting Judge had been allocated to hear it. These are, to some extent, accepted as part of the risks of litigation. What would happen, however, where such failures prevent a Claimant from serving a claim form within the time period of 4 months under CPR 7.5?

 

The facts

In the case of Walton v Pickerings Solicitors [2022] EWHC 2073 (Ch), Mr Walton issued a claim in person on 20 July 2020, which was what he understood to be the last day of the limitation period. The Court Office (operating under Covid-19 policies) retained the claim form, which would have been returned to Mr Walton once it had been sealed. It was accepted at first instance that the Court had simply lost Mr Walton's claim form.

Particulars of claim were finalised on 13 November 2020, but Mr Walton did not then have a copy of the sealed claim form. As such, on 17 November 2020, Mr Walton served the Defendants with an unsealed claim form and the particulars of claim.

After being asked by one of the Defendants for a copy of the sealed claim form, Mr Walton attempted to contact the Court, but was unable to get through by telephone or email. Eventually, Mr Walton attended in person to discover that the Court had no record of the claim at all. A Court manager accepted that something had went wrong. A new claim form was issued, sealed, and backdated to 20 July 2020 (given the limitation issue). Mr Walton received it and then duly served it on 7 December 2020. An application to extend time for service was made on 17 December 2020.

The application was dismissed at first instance, as Deputy Master Dray concluded that Mr Walton did not satisfy the threshold conditions in CPR 7.6(3).

  • In relation to CPR 7.6(3)(b) (the Claimant has taken all reasonable steps to comply with CPR 7.5 but has been unable to do so), the Deputy Master concluded that Mr Walton could and should have chased up the Court or tried to obtain the sealed claim form before November 2020.
  • In relation to CPR 7.6(3)(c) (the Claimant has acted promptly in making the application), Mr Walton knew that the time for service had expired on 20 November 2020, and he should have known that, from that date, time was running. There was a delay for a period of 3 weeks before the application was made, and as such it was not made promptly.
  • Even if the threshold conditions were met, the Deputy Master considered that he would have declined to exercise his discretion to extend time for similar reasons.

 

 The appeal

Robin Vos (sitting as a Deputy High Court Judge) dismissed the appeal.

  • The Deputy Master was wrong to conclude that the CPR 7.6(3)(b) threshold condition was not met. Mr Walton was only required to take all reasonable steps to comply with CPR 7.5 once the sealed claim form was in his possession – not before.
  • The Deputy Master was also wrong to conclude that the CPR 7.6(3)(c) threshold condition was not met. Since Mr Walton was not in a position to serve a sealed claim form until he had it in his possession, and also could not know the deadline for service prior to that, the consideration of promptness within the meaning of CPR 7.6(3)(c) would be determined by reference to the date when the sealed claim form was received.
  • However, satisfying the threshold conditions does not mean that a Claimant will automatically be successful in obtaining an extension of time. In exercising its discretion, the Court will need to take into account all of the relevant circumstances, which will include examining the reasons why the Court has not provided a sealed claim form and what, if anything, it might have been reasonable to expect the Claimant to do in order to obtain it.
  • Here, Mr Walton had left it until the last possible minute before expiry of limitation to issue the claim form. He chose to take responsibility for service, but took no action to chase up the Court to find out the whereabouts of the sealed claim form. When he did, the Court was able to resolve matters in about three weeks. While it is a significant factor that the Court is at fault in losing the original claim form, the other factors in this case outweigh that mistake. It was entirely reasonable to expect a litigant who knew that a sealed claim form had to be served by a particular date to contact the Court in good time if it had not been received.

 

Lessons learnt

It is far from uncommon for legal practitioners to simply track the deadlines of cases, revisiting them only when the deadlines approach. This could leave little margin for error when there are failures in the Court machinery.

This decision serves as an important reminder to legal practitioners to keep abreast of any administrative process of the Court and to be in contact with the Court office sooner rather than later. Mr Walton’s plight as a litigant-in-person navigating an unfamiliar Court machinery in uncertain times received little sympathy. In light of the recent cases involving service of claim forms (Ideal Shopping Direct Limited v Mastercard [2022] EWCA Civ 14; R (Good Law Project Limited) v Secretary of State for Health and Social Care [2022] EWCA Civ 355) it would seem that any legally represented party would be shown even less sympathy than that.

Rectifying any such issues which arise can take significant time. Here, it took 3 weeks, and both the Deputy Master and the Judge shared a similar view that Mr Walton should have contacted the Court office in advance to get the sealed claim form in time. Legal practitioners should consider setting up reminders for their file in advance of deadlines to make sure everything is in order leading up to those deadlines. Any signs of delay should be promptly followed up with the Court office, and where there is any inability to take a procedural step as envisioned, an in-time application for an extension should be made.

Contributors

Jian Jun (JJ) Liew

Practice Areas

Commercial Litigation