Solicitors not under a duty to ensure that court staff issue in time
This case Page v Hewetts Solicitors caused a stir back in November when the high court held that a claim form was statute barred notwithstanding evidence it had been received by the court in time.
The claimants were trustees of an estate and instructed the defendant solicitors to act for them in the administration of it. The claimants brought a claim against the solicitors for, amongst other things, breach of fiduciary duty relating to a secret profit.
It was common ground that the claimants were aware of certain facts relating to the secret profit claim by 6 February 2003 for the purposes of an extension to the limitation period under section 32 of the Limitation Act 1980.
The claimants' solicitors alleged that they sent the claim form to the court by DX for issue on 3 December 2008 and that, having heard nothing, chased the court again in mid-January. The court said that it had not received the claim form and so the solicitors provided a fresh copy. The claim was eventually issued on 17 February 2009.
The Master found that the obligation was on the claimant and his solicitors to ensure that the claim form was issued before the expiry of the limitation period, even in circumstances where the actual issue of it was outside his control (and was within the control of the court). The Master held that on the balance of probabilities he was not convinced that the court had received the claim form and granted summary judgment in favour of the defendant. That decision was upheld on appeal to the high court.
The Court of Appeal reversed that decision. In doing so it provided some helpful guidance on the meaning of the phrase "… an action … shall not be brought after…" which appears in virtually every section of the Limitation Act. Lord Justice Lewison found that "…where the claimants establish that the claim form was delivered in due time to the court office, accompanied by a request to issue and the appropriate fee, the action would not be statute barred.…".
It is therefore sufficient for a claimant to demonstrate that the claim form was actually delivered to the court in time. Practically, solicitors should ensure they keep accurate records of when and how the documents are sent to court to avoid any later challenge.
On the fact of this case, the Court of Appeal overturned the Master's decision because he applied the wrong test; the defendant had brought a claim for summary judgment and the court had to consider if the claimants had no real prospect of showing that the documents arrived at the court office. The master had determined the issue on the balance of probabilities which was wrong. Whether the claimants in this case will be able to establish that at trial remains to be seen.