Possible addition to Ashfords' library
The High Court has refused to accept a firm's excuse that changes to work due to Covid were to blame for a missed deadline.
Ashfords was representing Boxwood, a leisure centre business, which sought damages of £683,000 against construction company Gleeson. Boxwood commenced proceedings in March 2020. The court granted Ashfords an extension until 10 September 2020 to file the claim form and particulars of claim.
On 8 September 2020 an Ashfords trainee served the particulars of claim and initial disclosure, to opposing solicitors, Systech. However, the trainee neglected to include the claim form.
The supervising solicitor was on holiday that week, but spotted the mistake on 14 September, on their return to work. The firm hastily sent an email to Systech attaching the claim form. But the opposing firm batted it away, as the deadline had passed.
Boxwood applied to the court to exercise its power to rectify the procedural error. A witness statement by the supervising solicitor said that in "normal" times, pre-lockdown, hard copies of the order would have been given to the partner in charge and reminders put in a "key dates diary" for the whole team. But with an electronic order, the date for service was added to the supervising solicitor's diary, but not the diaries of other colleagues. The solicitor said this meant the date didn't appear in the diary of their holiday cover.
"The Covid-19 pandemic disrupted our usual working arrangements for ensuring that we comply with Orders," said the solicitor in the witness statement. "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."
But the excuse did not wash with Mrs Justice O’Farrell. The judge said that despite the "unfortunate mistake" by Ashfords, the court did not have the power to extend the time for service, as "Boxwood could not establish that it took all reasonable steps to serve the claim form within the extended time period ordered by the court."
The judge also said that the defendants "would suffer prejudice if the court granted the relief sought" because they would be deprived of potential limitation defences.
"I accept that working away from the office during the pandemic would reduce the oversight of more junior practitioners that would be normally present and could allow mistakes to slip through the net," said the judge. "However, having issued proceedings in circumstances where limitation was a live issue and where Gleeson had objected to the requested extensions of time for service of those proceedings, it was incumbent on the solicitors to ensure that the extended dates ordered by the court were met."
The realisation of missing a time limit would cause any lawyer to break into a cold sweat. One solicitor recently went to extreme lengths to try to rectify the error.
Ashfords did not respond to a request for comment.