An investor who received a backdated claim form from the court has been granted permission to appeal the dismissal of a retrospective time extension.
Lord Justice Nugee, ruling in Eric Walton v Pickerings Solicitors & anor, acknowledged that the appeal ‘arises out of an unfortunate series of events’.
Eric Walton wished to sue Pickerings Solicitors and architect Frank Brophy over a land sale which he claimed lost him a share of profits he assessed at £616,000.
Walton received a sealed copy of his claim form, of which there had been multiple versions, from the court on 7 December 2020 but dated 20 July 2020. It meant Walton was ‘already too late’ to serve the claim form. He appealed for an extension arguing that the court had no power to backdate the claim form and was obliged to seal it with the date on which it was actually issued.
Pickerings Solicitors and Brophy sought to have proceedings dismissed as they were out of time. Walton’s application was dismissed, he appealed and the appeal was also dismissed.
In his judgment on the appeal, Nugee said: ‘We do not know the day on which the seal was actually placed on the claim form but it must have been between 5.30pm on 30 November 2020 and 7 December 2020.’
‘The deputy master accepted that the claim did, as he put it, "get lost, for want of a better description, in the court system". He suspected that that was because the claim was presented for issue in the Commercial Court as opposed to the Chancery Division. It is not obvious to me why that should have caused the court to lose the claim, but it does not matter.’
The judge said ‘the undoubted facts’ were that Walton ‘left a claim form with the court and paid the requisite fee on 20 July 2020, but did not receive what he was entitled to…for many months’ and ‘when he did, it was already too late for him to serve it’.
Nugee accepted the ‘very simple’ submission of Richard Turney, for Walton, that ‘the rules treat the act of sealing the claim form and the issue of the claim form as a single act which takes place at the same time. There is no express power to seal the claim form with a date other than that on which it is in fact sealed’.
In the 12-page judgment, he said: ‘If the purpose of putting the date of issue on the claim form is to mark the beginning of the period for service, the effect of backdating the date of issue, as the facts of the present case demonstrate in dramatic fashion, is to give the claimant less time to serve than the rules on their face permit him to have.
‘I do not think an interpretation of the rules that permits this to happen should be adopted unless there is some compelling reason why the Court should have the power to cut down, or even eliminate altogether, the claimant’s period for service in this way. But there is to my mind no such compelling reason, indeed no reason at all, why the Court should be able to do this.’
In allowing the appeal, of which both Lady Justice Falk and Lady Justice Asplin agreed, Nugee found the claim form was served on both defendants.
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