excuses 01

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. 

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Comments

WTF 23 April 21 10:14

Two questions: (i) why is someone that qualified in 2018 supervising the matter?; (ii) what were the partners doing? 

Nottelling 23 April 21 11:32

I think the client should investigate the time-sheets to see who purported to have checked the trainees work before it went out, s.17 Theft Act 1968.

This 23 April 21 12:15

 "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."

Read all the way through sympathetic to Ashfords until I got to this bit.

Nowhere to run. 

Special attention to service required. 

Should have known better, holiday or not. (And agree with the commenters, nothing to do with Covid)

Wtaf 23 April 21 12:27

Did the holiday cover fail to provide that cover and delegate to the trainee? Why did the (<3 year pqe who should not have been supervising) supervising solicitor who has the LEAST first hand knowledge get the maximum air time? Looks like a failure of supervision by (1) the holiday cover; (2) the entirely conspicuous by their absence unmentioned supervising partner. Add in a side order of scapegoating for good measure. No ministerial responsibility here - poor show. 

FFS 23 April 21 12:35

The individual named on the statement is a junior solicitor. I assume she was used as the sacrificial lamb in order to save both the supervising associate and partner from any embarrassment. 

Seriously? 23 April 21 13:14

According to the Judgement the mistake was made in Sept 2020. The supposedly 'supervising' solicitor had just turned 2 years PQE, and was on leave in any event... Wth? Where is the actual supervisor in all of this? The poor solicitor and trainee. Thrown under a bus.

Dearie 23 April 21 13:36

I miss the good old days when solicitors could actually trust each other. Now it's a spiralling circle of point scoring and hard deadlines that serve no one.  When the system treats us like idiots, then you tend to get idiots. Case in point is the new ridiculous practice direction on witness statements. Because some people were crap at them, now we are all treated as if we are crap at them. 

Anonymouse 23 April 21 13:48

It is the law so not unsurprising result. However whether it is fair is a different story.

What would happen if we were talking about the Defence? We would have an app for Judgment in default; Def would oppose application and court would say prejudice to D is too high and so give an unless order.  I have had it before where Def was not served and two unless orders breached and still no Judgment as it was in the interests of justice to avoid a possible windfall.

If it is to be zero tolerance to one side it has to be the same to both sides.

Dude 23 April 21 14:52

Litigators are gonna litigate, innit, but couldn’t some kind person at Systech not have picked up the phone to the poor trainee and said, hi mate, think you forgot to attach the claim form?

Anonymous 23 April 21 17:54

Who the f lets a trainee fly solo on a nearly £1m claim? Sorry, but the arse of a partner needs to be kicked on this.

Ex-Ashfords 26 April 21 10:22

There's rarely a case to be reported like this, but Ashfords like many other firms has form when it comes to throwing juniors under the bus. Good luck to all you juniors out there and remember to be careful about where you place your trust.

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