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Assume nothing!

Hot on the heels of my colleague Rebecca’s article on limitation periods comes a nightmare-inducing (for litigators at least!) decision from the English High Court, which reinforces Rebecca’s sage advice not to ‘wait ‘til the midnight hour’ to serve proceedings. It also highlights the danger of making assumptions…

LSEREF 3 Tiger Falkirk Limited v Paragon Building Consultancy caught my eye primarily as it involves both a construction project close to my hometown in Scotland and the law firm where I trained.  Solicitors for the Claimant had issued a pre-action letter directly to the Defendant in December 2016.  The Defendant sensibly took legal advice and the response, and all future correspondence, emanated from their appointed solicitors (who confirmed in the usual manner that they were instructed in relation to the matter).

After a protracted period of discussions, a claim form was issued in August 2020. Under English procedure, the claim form must be served within 4 months (unlike in NI where we have the luxury of 12 months before a Writ of Summons expires). The parties agreed to extend this period by a further 4 months to allow negotiations to continue. Further extensions were agreed, the final being a 7-day extension due to expire on Friday 23 April 2021. 

It is important to note that in all the various communications (most conducted by email as is commonplace in current times) no mention had been made of whether the Defendant’s solicitors were authorised to accept service of proceedings.  Unfortunately, it appears that this was simply assumed to be the case (and one can understand this in the context of a case where solicitors have been communicating for several years). 

The Plaintiff’s solicitor issued two without prejudice letters by email on Friday 23 April. One can surmise that these contained settlement proposals. She also called her opposite number mid-afternoon, seeking to agree a further extension of time. As the day passed with no confirmation of any agreement to extend further, the Plaintiff’s solicitor realised that the claim form would have to be served before midnight. She attempted to do so by sending the form to the Defendant’s solicitor by email at 18:46. One can only imagine the heart-dropping moment when it became clear that the Defendant’s solicitors did not in fact have express authority to accept service on their behalf and that the point was being made that service was not effective. 

An application was swiftly made inviting the High Court to exercise its discretion to deem service good.  Whilst some sympathy was expressed, the judge refused to do so. The rules are clear that service can only be effected on a solicitor who has the authority of their client to accept service on their behalf.   The judge did not agree that the circumstances supported the argument that that authority had impliedly been given. He did not agree that this was a case where there was a good reason to depart from the normal rules on service. 

“The Claimiant’s solicitors left the important act of serving the claim form to the last minute, and could therefore be said to have brought this situation upon themselves”. 

Ouch! The upshot of this decision is that a £10 million claim can no longer be pursued against the Defendant because the claim form had not been effectively served before expiry of the limitation period. A claim against the unfortunate solicitor will no doubt follow. 

Click to view official Court Decision


Editorial prepared by: Kirsten Magee, Partner, Mills Selig

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