International firm Womble Bond Dickinson has fought off a negligence claim by a former client, with the High Court ruling that the pandemic could not excuse a four-month delay in applying to amend particulars of claim.
Landowner and businessman Philip Day, who was fined £450,000 after felling 43 trees on his Cumbrian estate and ordered to pay £457,317.74 costs, argued an abuse of process argument should have been run on his behalf and that Womble Bond Dickinson failed to advise him to plead his case in the magistrates’ court rather than the Crown court.
His claim for damages was struck out by the High Court in 2019, but last year the Court of Appeal allowed Day’s appeal only to the extent that it was arguable he incurred additional costs as a result of the allegedly negligent advice regarding choice of venue. Day was ordered to apply to amend his particulars of claim against Womble Bond Dickinson if the firm did not consent to the amendments.
Day claimed that the increased costs of his defence were £708,827.99, which included appeals to the Court of Appeal and the Court of Justice of the European Union. However, when Womble Bond Dickinson did not consent to the amended pleading, Day did not apply to the court to amend his particulars of claim by April 2020 as ordered – although he did apply to the Supreme Court for permission to appeal, which was refused.
Deputy Master Toogood today refused Day’s application for relief from sanctions and dismissed his claim. Day’s solicitor Lee Edwards from Elliot Mather blamed the pandemic for the failure to issue the application, Toogood said.
The master noted that Lee said ‘members of his department were furloughed or made redundant so that remaining members of staff had to deal with increased workloads’.
Toogood said: ‘I have some sympathy with this submission, but only up to a point. It was up to individual firms of solicitors whether to furlough their staff or make members of staff redundant. It was the responsibility of the firm to ensure that there were adequate remaining staff to perform the work that needed to be done.
‘If the delay had been a matter of days or even a few weeks in the initial stages of the pandemic, I might have come to the view that the reorganisation and new ways of working required due to the pandemic constituted a reasonable excuse for missing a deadline. But I do not consider that the pandemic can excuse a four-month delay.’
Toogood also said that, during the four-month delay, Day was ‘seeking permission to appeal to the Supreme Court and it thus appears that the claimant had more interest in challenging the Court of Appeal’s decision than in complying with its order’.