Lockdown no excuse: court refuses to rectify error after claim form 'slipped through the net'

The high court has refused an application to render valid a claim form submitted late after a trainee failed to attach the form to an email. The supervising solicitor said the issue ‘simply slipped through the net’ while she was on annual leave because of disrupted working arrangements due to lockdown. 

Ashfords LLP, acting for claimant, Boxwood Leisure Limited, in a claim worth over £683,000, had already been granted an extension to lodge the form in April 2020 due to difficulties caused by the pandemic. The period of service was extended to 10 September 2020. 

A trainee prepared an email to the defendant, Gleeson Construction Services Limited (Gleeson), on 8 September 2020, attaching the particulars of claim, acknowledgement of service forms and initial disclosure, but not the claim form. The trainee also sent a copy by post to the defendant’s solicitors. 

On 14 September 2020, the particulars of claim were returned to Ashfords, marked ‘addressee gone away’. Supervising solicitor, Mathilda Traill, checked the address on file and realised the claim form had not been served; it was served by email the same day, albeit four days’ late. 

Systech Solicitors, acting for Gleeson, responded a few days later, stating that as the claim form had not been served by 10 September and no application had been made to extend the time for compliance, the proceedings were ‘a nullity.’

Ashfords applied to the court for relief from its failure to comply and asked the court to rectify the error and vary the claim form, so it could be regarded as properly served. 

Traill submitted that, due to lockdown, the firm’s ‘normal’ working practices were not in place. She explained orders are normally received in hard copy from the court and given to the matter partner who ensures reminders of deadlines are recorded in a team diary. However, in this instance, the reminder was only set in Traill’s diary, and she was away on annual leave during the period of service. 

She said: “I am sure that if we had all been working in the office as usual over the summer months, this would have been avoided, because it would have been properly diarised, or someone would have noticed during the course of our day-to-day engagement, interaction and meetings which have been absent for so long."

Mrs Justice O’Farrell had little sympathy. She refused the application on the basis that the court had no power to grant an extension of time, nor to correct a procedural error, in the circumstances. She also determined Gleeson would suffer prejudice if the order were varied retrospectively to extend time for service, as it would be deprived of potential limitation defences. 

We have reported previously on concerns regarding a lack of junior fee earner supervision during lockdown, and this case may be the first of many similar cases that we see come before the courts. If the outcome in this case is anything to go by, firms should not expect much leniency.