Claimant's errors on issue lead to successful strike out

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Article

28 May, 2021

A recent County Court decision we ran on behalf of our client, the Co-operative Group Ltd, shows the importance of carefully considering procedural points when served with proceedings.

Whilst judges have cautioned time and time again against taking petty procedural points, the Claimant's solicitors in this matter got so much wrong that it was important to challenge them.

The Claimant had an accident on 5 March 2017. The Claim Notification Form was submitted to our client on 10 May 2017 and liability was admitted at an early stage. However, no Stage 2 settlement pack was ever provided.

Instead, as limitation was approaching the Claimant purported to issue proceedings by sending a Part 8 Claim form to a County Court on 27 February 2020. Part 8 is the correct procedure to use for a claim brought under and continuing to proceed under the Portal process. So far apparently so good, as limitation was not due to expire for about a week. This was where the first mistakes were made by the Claimant's solicitors though. Instead of sending the Claim Form to a County Court hearing centre, they sent it to the County Court Money Claims Centre (CCMCC). This is for issuing under Part 7, not Part 8. So, the CCMCC returned the proceedings to them without issuing it and the solicitors then sent it to the County Court hearing centre at Bristol. But this was not until the 12 March 2020, after limitation had expired. Bristol County Court did not issue the Claim Form immediately.

The Solicitors compounded their initial mistake yet further in several ways.

  • Despite not hearing from the Court at Bristol it seems that no attempt was made to contact the Court to ask about the whereabouts of the proceedings until 8 July 2020, just 4 days before the deadline for a Claim Form issued on 12 March 2020 to be served.
  • At this point the Court stamped proceedings as issued on 8 July 2020 but then backdated it to 8 March, apparently at the request of the claimant's solicitors presumably in a misguided attempt to help with the limitation argument.
  • Proceedings were then served on the 7 September 2020, which is later than the 4 months allowed for service (assuming 12 March is the correct date of issue).
  • They had written to us to say that the claim could not proceed under the portal due to its value being over £25 000. As such they should have then issued under Part 7.
  • They had probably issued under Part 8 in an attempt to get the claim stayed due to limitation approaching.

With so much uncertainty we advised our clients that we should seek to strike out the claim, which we successfully did on 28 October 2020, when the Deputy District Judge agreed that the claim had been issued on the 12 March and had therefore not been served in time.

The Claimant appealed. They continued to argue that the issue date was 8 July 2020, not 12 March 2020 and that the court unilaterally backdated it to March 2020.

On appeal HHJ Ralton said that if the Claimant had wanted to challenge the issue date they should have done so at the time it was sent to them so the appeal was dismissed.

The Co-operative Group Ltd have made a saving of £25 000 due to our successful challenge and the Claimant now has a remedy against his Solicitors for what should have been a relatively straightforward damages only claim.

For more information contact Angela Evans in our Insurance department at Angela.Evans@forbessolicitors.co.uk or on 01619180013. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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