A City firm has successfully set aside a claim form in a £1.3m professional negligence action after the claimants’ lawyers failed to serve it in time.

James Lonsdale, the trustees of a trust set up by him and his children sued Wedlake Bell over the allegedly negligent advice of its partner Ann Stanyer, who moved to the firm from Cumberland Ellis after a 2012 merger.

They issued a claim form last July against Stanyer, Wedlake Bell, Cumberland Ellis and the latter’s indemnity insurer QBE after Lonsdale claimed that Stanyer’s advice about the trust was ‘totally wrong’.

The claimants’ lawyers, London firm Archer, Evrard & Sigurdsson, emailed the claim form to the defendants’ solicitors RPC in July and were due to serve the claim form by November 2021, but agreed an extension to the following month.

However, the firm did not serve it until January this year and applied for a declaration that a valid extension of time had been agreed or, alternatively, that it should be treated as being served in time, while the claimants said the court did not have jurisdiction to hear the July claim.

The claimants argued that the defendants were estopped from relying on the fact that the July claim form had expired but John Kimbell QC, sitting as a High Court judge, ruled last week that ‘the claimants cannot point to any relevant representation or assurance which is capable of founding the estoppel’.

He rejected the argument that a November 2021 email from RPC, seeking to agree dates for mediation, amounted to an acceptance that there was no need to agree a new date by which the July claim form needed to be served. ‘Quite the opposite, RPC expressly referred to “a further order” to extend time,’ the judge said. ‘Clearly RPC expected [Archer, Evrard & Sigurdsson] to send a further consent order for their agreement.’

He added: ‘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 [2021] and inviting them to do so after that date had expired.

‘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.’

Kimbell dismissed the claimants’ contention that the court should order that emailing the July claim form to RPC constituted good service, saying that Archer, Evrard & Sigurdsson ‘took a conscious decision to send the July claim from to RPC and asked then not to treat this as service’.

A further argument that an order should be made to dispense with service of the July claim form was also rejected, with the judge saying: ‘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 … this is not a case which can conceivably amount to exceptional circumstances to justify dispensing with service altogether.’

Another claim form issued in December 2021, which the court heard ‘has the same parties and contains the same substantive claims as the July claim form’, had been stayed pending the outcome of the applications relating to the earlier claim form.

 

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