Eric Walton v Pickerings Solicitors
| Jurisdiction | England & Wales |
| Judge | Robin Vos |
| Judgment Date | 02 August 2022 |
| Neutral Citation | [2022] EWHC 2073 (Ch) |
| Docket Number | Claim No: BL-2020-002129 |
| Court | Chancery Division |
| Year | 2022 |
[2022] EWHC 2073 (Ch)
Robin Vos
(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Claim No: BL-2020-002129
Appeal Ref: CH-2021-000157
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
CHANCERY APPEALS (ChD)
ON APPEAL FROM THE ORDER OF DEPUTY MASTER DRAY
DATED 28 JUNE 2021
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Howard Elgot (instructed under the Direct Access Scheme) appeared for the Claimant/Appellant
Henry Bankes-Jones (instructed by BLM LLP) appeared for the First Defendant/First Respondent
Marc Brown (instructed by TALBOTS LAW LIMITED) appeared for the Second Defendant/Second Respondent
Hearing date: 5 July 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be Tuesday 2 August at 10:30am
Introduction
The Claimant, Mr Walton appeals against an order made by Deputy Master Dray on 28 June 2021 refusing to grant an extension of time for the service of Mr Walton's claim form and, as a result, declaring that the claim form is a nullity and of no effect. The order also required Mr Walton to pay the costs of both Defendants. The Deputy Master gave his reasons for making the order in an ex tempore judgment delivered immediately after the hearing on 28 June 2021.
The details of Mr Walton's underlying claim against the Defendants is of limited relevance to this appeal. In summary, Mr Walton alleges that he had an agreement with a Mr & Mrs Llewelyn in relation to the development of some land owned by them and in relation to which he would be paid half of the profits. His case is that, in breach of that agreement, the land was sold to a company of which the second Defendant, Mr Brophy was a director and that Mr Brophy knowingly procured the breach of contract.
The first Defendant, Pickerings Solicitors (“Pickerings”) were the solicitors acting for Mr & Mrs Llewelyn. Mr Walton says that, having informed him of the exchange of contracts, Pickerings undertook to inform him in advance if completion was to take place before the contractual completion date of 22 August 2014. Completion in fact took place on 29 July 2014 without Mr Walton being informed. He says that Pickerings' failure to comply with its undertaking deprived him of the opportunity to prevent the sale taking place.
As well as Mr Walton's application for an extension of time, the Deputy Master also had before him an application made by Pickerings that the claim should in any event be struck out as “Pickerings Solicitors” is not a legal entity but just a trading name and an application from Mr Brophy that Mr Walton's claim should be struck out as a result of the defective service.
Shortly before the hearing on 28 June 2021, Mr Walton produced another application, this time to amend the parties in response to the first Defendant's strike out application to include both Pickerings Solicitors LLP (the entity in existence at the time of the relevant events) and Pickerings Solicitors (Tamworth) Limited (the successor entity) as Defendants. This application was not however filed or served.
On 14 January 2022, Pickerings issued a Respondent's Notice seeking to uphold the Deputy Master's order on the basis firstly of the discrepancy in the reference to “Pickerings Solicitors” but also on the basis that, following the decision of the Supreme Court in Harcus Sinclair LLP v Your Lawyers [2021] UK SC 32, it is clear that the Court has no jurisdiction to enforce an undertaking given on behalf of a limited liability partnership.
At the hearing, I refused permission for Pickerings to rely on these points as separate, self-standing issues as they are not, of themselves, reasons for upholding the Deputy Master's order in relation to the consequences of the failure to serve the claim form in accordance with the requirements of the CPR. Instead, they might justify an application by Pickerings to strike out the claim or to obtain summary judgment. Pickerings did of course make an application to strike out the claim on the basis that the first Defendant was not correctly identified. However, the Deputy Master did not reach any decision in relation to this application and Pickerings did not make any application for the strike out to be determined as part of this appeal. Had it done so (and sought to add the point about the undertaking as an additional reason for striking out the claim), this would no doubt have affected the time estimate for the hearing.
I did give permission to Pickerings to rely on these points to the extent that they were relevant to any exercise of the Court's discretion in relation to the points which arise in respect of the appeal. However, in the event, Mr Bankes-Jones, appearing on behalf of Pickerings, did not refer to them.
Subject to this point, the subsequent applications made by Pickerings and by Mr Walton which I have referred to are not strictly relevant to the appeal and I mention them only for completeness.
The Claim Form — Factual background
The relevant facts are not in dispute and are set out by the Deputy Master in his judgment at [15–29] and can be summarised as follows.
Mr Walton attended the Royal Courts of Justice in person on 20 July 2020 to issue his claim form, having arranged the appointment with the Fees Office by email. He paid the fee of £10,000 and was given a receipt. Mr Walton elected in accordance with CPR Rule 6.4(1)(b) to serve the claim form himself as no particulars of claim had, at that stage, been prepared. Assuming the claim form had been issued on that date, the four month time limit under CPR Rule 7.5 for serving the claim form would expire on 20 November 2020.
The alleged undertaking by Pickerings was purportedly given on 21 July 2014. The result of this is that Mr Walton believed that the limitation period for any claims against Pickerings would expire on 20 July 2020. It is clear that the Deputy Master assumed for the purposes of deciding Mr Walton's application that this was the case and I shall do the same.
As a result of the impact of COVID on the way in which the Court was working, the Court could not provide Mr Walton with a sealed copy of the claim form there and then. Instead, it retained a copy of the claim form which was to be returned to Mr Walton once it had been sealed. Shortly after this, Mr Walton notified both Defendants that the claim had been issued and told them that he would serve the claim when Counsel had drafted the particulars of claim.
Nothing further happened until November 2020. The particulars of claim were finalised on 13 November 2020. However, Mr Walton still did not have a sealed claim form as it had neither been sealed by the Court nor returned to Mr Walton. As the Deputy Master acknowledged, there seems little doubt based on the evidence that the Court had simply lost Mr Walton's claim form. On 17 November 2020, he therefore served both Defendants with the unsealed claim form and the particulars of claim.
The following day, Mr Brophy asked for a copy of the sealed claim form. Mr Walton responded to say that he had sent a copy of the unsealed claim form and the particulars of claim to the Court and informed the Court that these documents had been served. He observed that “we will no doubt receive sealed copies with a claim number but I would be surprised if it was this side of Christmas”.
Mr Walton did nonetheless try to contact the Court but with little success as nobody answered the telephone and the only email address he could find was for the Administrative Court Office. Eventually he went to the Court in person on 25 November 2020 and discovered that the Court had no record of the claim.
Following further discussions between Mr Walton and the Court, a court manager accepted that something had gone wrong and that the Court would issue and seal a claim form backdated to 20 July 2020. However, to enable this to happen, Mr Walton was told to provide a new version of the claim form in the format required for the Business and Property Courts as the original claim form he had used was the template for the Commercial Court financial list.
Mr Walton duly obliged although he expanded the brief details of the claim contained in the claim form to include specific mention of the alleged breach of undertaking by Pickerings which had not been mentioned as the basis of the claim against them in the original claim form which he had presented to the Court on 20 July 2020.
On 7 December 2020, Mr Walton received the sealed claim form (bearing the date 20 July 2020) from the Court and immediately served it on both Defendants by email. He also served it on Mr Brophy by post with receipt being confirmed on 10 December 2020. The reason for serving Mr Brophy by post is that, unlike Pickerings, Mr Brophy (or his solicitors) had not agreed to accept service by email.
Mr Walton's application for an extension of time for service of the claim form was made on 17 December 2020.
The basis of Mr Walton's application and the grounds of appeal
Mr Walton's original application was for an extension of time for service of his claim form to 10 December 2020 and was explicitly made on the basis of CPR Rule 3.10 (general power of the Court to rectify matters where there has been an error of procedure) rather than under CPR Rule 7.6 which contains specific provisions relating to applications for an extension of time for serving a claim form.
Having considered various authorities relating to the interaction of CPR Rule 3.10 and the specific rules relating to claim forms (in particular CPR Rule 7.6 and ...
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