Don't leave claims until the 11th hour

I would like to make a plea to all solicitors, particularly those of a claimant persuasion: be prepared. My caseload is littered with examples of people who have left things to the last minute then received unpleasant surprises when matters were not tickety-boo.

The starkest experience involved the claimant’s solicitors issuing proceedings on the last possible day for limitation purposes. I entered a diary note in my Outlook calendar for four months later. In mid-January, the reminder popped up so I contacted the claimant’s solicitors the next working day to advise that, as we had not received any proceedings, we were taking the matter to be at an end and would close our file. My call was met with apparent indifference, and a promise to call me back later that day once they had “checked the file”.

Having heard nothing, I rang again the next morning only to be told that proceedings had been served on us through the DX precisely two months ago, which we never received. The claimant’s solicitors helpfully provided a further copy.

Imagine my confusion when I saw the covering letter and realised that it had only enclosed the claim form, with the particulars of claim to follow. This threw a different light on the matter. As the claimant was out of time to
now serve particulars within
the valid time frame of the
claim form, I relied on section 7.4 of the Civil Procedure
Rules (CPR) and stood by my argument that the claim was statute barred.

Obviously, I do not know what goes on behind the scenes at the claimant’s solicitors, but their correspondence is utterly bizarre. They are asking whether I refuse to accept that service has taken place in accordance with the CPR. I responded that the claim form is, of course, deemed served, if they say that the letter was placed in the DX. However, they keep missing the killer point, which is that even if the claim form had been served, the particulars of claim have not.

Dim view

The court has taken an increasingly strict approach to time limits, particularly in the Venulum Property Investments Ltd v Space Architecture Ltd [2013] EWHC 1242 outcome, which is on point. In light of this, I do not doubt that the court will take an extremely dim view of the claimant’s solicitors’ conduct in the event that they proceed to make a relief from sanctions application, after a further two-week delay since we placed the issue firmly on their radar.

Another example of firms playing ‘CPR chicken’ is on a case in which the claimant’s solicitors have not yet met a deadline. The court order stated that there would be no oral evidence permitted from any witnesses whose statements were late. We pulled out all of the stops to ensure that our statements were signed and ready before 4pm on the day in question.

I engaged in a little tactical trickery of my own, waiting until 3:30pm before starting
to fax the statements, just in case the claimant’s solicitors had forgotten. I received an email serving their statements at 3:55pm. The only slight problem is that my firm does not accept service by email, something I communicated by return email.

One panic-stricken phone call later, and a reassurance that we did not intend to take the point, and I believe that particular solicitor will think twice before leaving things until the 11th hour next time. SJ

Catherine Burtinshaw is a solicitor at Kennedys