Solicitors who failed to track down a missing claim form as a court deadline loomed should have been 'far more proactive' the Court of Appeal has found. In Bali v 1-2 Couriers Ltd & Anor, three judges turned down an appeal against a district judge's refusal to grant an extension of time for the road traffic accident claim.
The Court of Appeal ruled that the date of issue for a claim is the date it was sealed, not the date it was sent out by the court office.
In this case, the claim form over injuries sustained in 2019 had been sealed by the court service on 13 December 2023. From that point, the claimant had four months in which to serve. For what the judgment stated were unknown reasons, the claimant's lawyers received the sealed claim form only after that deadline had passed.
During those four months, the court heard, there was no evidence of the solicitors taking any steps to find out why the letter with the sealed claim form had not arrived. Nor was there any evidence that the solicitors, who were not named in the judgement, considered making a precautionary application to the court for an extension of time for service.
In lead judgment, Lady Justice Andrews said a reasonable person in this situation would have sought to find out whether the claim form had been issued and, if it had, whether it had been sent out, and if so, when.
‘Although a person cannot serve a claim form until it is in his possession, the attempts he made to obtain it (in order to be able to serve it) are plainly relevant to the question whether he has taken all reasonable steps to serve it in time,’ she added.
‘The solicitors should have been far more proactive, especially given the expiry of the limitation period and the background of extreme delay. They should have expected to receive the claim form at the very latest before the New Year. They did nothing to find out whether it had been issued and if so, what had become of it.’
The claimant’s new representatives had suggested it was ‘Kafka-esque’ to require solicitors to take reasonable steps to serve the claim when the preconditions had not been satisfied. The judge said they had made a ‘dangerous assumption’ that the claim form had not been issued until the court had made contact.
The claim itself was for personal injury following an RTA in December 2019. It had been subject already to ‘substantial’ delays already until the payment of court fees was processed in December 2023. An email receipt was sent to the claimant solicitors along an allotted claim number.
The solicitors spoke with the court in February about a potential error with the matter but then waited more than a month to enquire why they had not received a sealed claim form.
Deputy District Judge Lenon KC refused a subsequent extension of time for service of the claim form and struck out the claim. Lady Justice Andrews found the judge made no error in his approach to the evaluation of the reasonableness of the solicitors' behaviour and had reached a conclusion which was the ‘only realistic conclusion’ available on the evidence. She added the previous delays prior to the date of issue were also relevant to an assessment of what took place after.
* The Gazette wishes to make clear that Legalex Solicitors, which represented the claimant in the appeal, was not instructed at the time of the underlying events giving rise to the strike‑out. The firm was formally placed on record on 13 December 2024, several months after the service deadline had passed and the claim had already been struck out.
This article is now closed for comment.
18 Readers' comments