Filing and Serving Documents at the Eleventh Hour? Don’t do it!

Litigants and solicitors will find themselves, for one reason or another, pressed up against the deadline for filing and service of proceedings or defences to proceedings. Leaving things to the last minute can deprive you of the ability to correct errors and cause serious issues with your claim, including losing the right to continue the claim. There have been a couple of cases recently in the High Court where parties to litigation have filed and/or served documents at the eleventh hour – with drastic consequences.

In LSREF 3 Tiger Falkirk Ltd I SARL v Paragon Building Consultancy Ltd [2012] EWHC 2063 (TCC), the Claimant sought to serve a Claim Form in a £10million construction dispute on the last day of the Claim Form’s validity after the initial limitation period had expired.

The Claimant was refused relief under CPR 6.15 (service via an alternative method) and CPR 6.16 (Court’s power to dispense with service), resulting in the Claimant’s claim not being allowed to proceed.

The parties had previously agreed to extend the time for service of the Claim Form three times. On the final day of the third extension, the Claimant’s solicitors contacted the Defendant’s solicitors with a view to agreeing a fourth extension. The Defendant’s solicitors, quite rightly, said that they had to seek instructions but never confirmed the position to the Claimant’s solicitors. The Claimant thereafter emailed proceedings to the Defendant’s solicitors, purportedly serving proceedings.

Service of the Claim Form was invalid because the Claimant had not confirmed with the Defendant’s solicitors whether they were instructed to accepted service of proceedings and the Defendant’s solicitors did not confirm that they were so instructed. The Court held that there was no implied confirmation in the antecedent correspondence.

The Court, in holding that service was defective, refused to retrospectively validate service or dispense with service on the basis that to do so would significantly prejudice the Defendant by depriving them of a genuine limitation defence. The consequence was that the Claimant’s £10million claim was not allowed to proceed.

In another case – ABC & Others v London Borough of Lambeth [2021] EWHC 2057 (QB) – the Claimant filed a Claim Form at the eleventh hour on 17 February. The Claim Form was resubmitted at the Court’s request due to administrative issues on 18 February. The Claim Form was sealed on 19 February, after the limitation date had passed.

The Court held that the claim was issued, and therefore protected against limitation, when the Court issue fee was paid on 17 February. The Claimant survived because the Court rejected the initial filing for administrative reasons and the Court fee did not need to be returned and re-paid. Had the filing been rejected for something more than an administrative reason, the Claimant may well have been time barred and deprived of the opportunity to bring the claim.

Practical Points

Litigation is high pressured and it is inevitable that litigants and their solicitors will be pressed for time at some stage in the litigation. Sometimes we will be waiting for instructions from clients, a final draft of a document from a barrister or an opinion from an expert. Whatever the case may be, communicating effectively with your opponents is the very least you should be doing to protect yourselves.

Do not leave the filing or serving of legal proceedings – or any other documents in proceedings – to the eleventh hour. The consequences can, and will, be drastic and you could well lose the right to bring or defend the claim.

Always check service arraignments with your opponents in good time ahead of the deadlines and you shouldn’t be leaving requests for additional extensions to the last day. Do not assume that you can simply email proceedings to your opponent and all will be well. There are procedures with which you must comply otherwise service could well be defective.

If you are facing a non-cooperative opponent, put them on notice that, absent consent, an application for more time will be made which will include an application for an order for your costs of doing so. Make sure you make that application in good time.

Finally, know your limitation dates! If you’re not sure, take advice and, where possible, build in a margin for error and set plenty of reminders so that you do not find yourself up against it when it matters most.

If you have any queries, please contact our Dispute Resolution team on 01228 552600 or 01524 548494.

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