Robert Aldington & 133 Others v ELS International Lawyers LLP ((in Administration))
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Oliver-Jones |
| Judgment Date | 12 December 2013 |
| Neutral Citation | [2013] EWHC B29 QB |
| Docket Number | Claim No. 2BM90107 |
| Court | Queen's Bench Division |
| Date | 12 December 2013 |
[2013] EWHC B29 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
His Honour Judge Oliver-Jones QC
(Sitting as a Judge of the High Court)
Claim No. 2BM90107
Counsel: Gordon Wignall appeared on behalf of the Claimants (Instructed by Regulatory Legal Solicitors of 1 Hagley Court South, Waterfront East, Brierley Hill, West Midlands, solicitors for the Claimants)
Counsel: Graeme McPherson QC appeared on behalf of the Defendant (Instructed by DAC Beachcroft LLP of Sovereign House, Imperial Way, Newport NP10 8UH, solicitors for the Defendant)
His Honour Judge Oliver-Jones QC:
References in this judgment to the application bundle will be as follows: AB / (File number) / Tab number / page number). There are 5 files.
This judgment is given in respect of an application by notice dated 3rd July 2013 [AB/4/1/1], on behalf of seven, of a total of 134, Claimants, for relief from a sanction contained in my Order made on and dated 12 th June 2013 [AB/ 4/2/15] but sealed on 19 th June 2013, and which was made (although not expressed on its face) with the consent of the parties. There is a second application, dated 18th September 2013, for transfer of the claims to the Royal Courts of Justice [AB/5/1/1].
The application for relief from sanction was heard on 7th October 2013 when I reserved judgment. A written Draft Judgment was sent to the parties by email on 16th October 2013 with a subsequent slight revision to the final paragraph in respect of the second application only. The parties then indicated that they would need to attend when judgment was handed down (a) to deal with costs issues (b) to deal with the transfer application and (c) for a possible application for permission to appeal. Because Leading Counsel for the Defendant was unavailable until 12th December, the handing-down had to be listed for that date. In the meantime, on 27th November 2013, the Court of Appeal delivered its judgment in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1526 (hereinafter ' Mitchell'). This judgment being so relevant to the issues in the instant case, I was invited to reconsider my Draft Judgment and to allow further written submissions. What follows is my revision of what was only a draft judgment, taking account of Mitchell and the further written submissions of both counsel received on 4 th December 2013.
By consent, the first application has been amended to include a further four Claimants. In respect of three of them, Mr. & Mrs. Darlaston and Ms. Macpherson, the granting of relief from sanction is not opposed. In respect of the fourth, Mr. Morgan, it is opposed, for reasons to which I will come.
This litigation concerns losses alleged to have been occasioned to each Claimant individually, in respect of failed investment in the purchase of 'off-plan' property in Spain, that is, property which was yet to be built. The properties were to form holiday villages. It appears that the investment was not made for the purpose of the investors ultimately owning the properties themselves but to secure a monetary return on their capital investment. Some of the Claimants became involved as individuals, some were husband and wife or members of the same family, and some invested as members of a syndicate. It is alleged that the Claimants were advised, inter alia, that their investment would be protected by a bank guarantee and returned to them should the development fail or not be completed. It is further alleged that investors were told that Spanish lawyers, identified as 'ELS' would be acting for them. It is contended that the Defendant is either the successor of the Spanish lawyer organisation to whom the obligations of the Spanish firm were transferred, or that the Spanish firm merged with the Defendant, or that the Defendant was a branch of the Spanish firm such as to give rise to duties of care on the part of the Defendant to the Claimants in contract and / or tort which were breached and whereby the claimants suffered loss. A more detailed exposition of the background can be found in what are described as 'Generic Particulars of Claim' [AB/3/1/7].
The Order dated 12 th June 2013, drafted and agreed by counsel, and described within its terms as a 'Final Order', provided for extensions of time for the filing and serving of "Individual Particulars of Claim" by each of the Claimants (paragraphs 1, 2 and 3), which were to contain specific information (paragraph 4), annex specific documentation (paragraph 5), and bear a statement of truth by the claimant (paragraph 6). The sanction for non-compliance in the case of any claimant, was dismissal of that claim (paragraphs 7, 8 and 9). The Claimants were divided into three groups and identified by name in one of three Schedules annexed to the Order viz:
Schedule 1 listed the names of 20 Claimants; they were each ordered to file and serve an 'Individual Particulars of Claim' by 4.00pm on 19th June 2013, failing which their claim "shall stand dismissed without further Order" and their name would be removed from that Schedule to the Claim Form. This is paragraphs 1 and 7 of my Order. Three of these Claimants were those to whom I have already referred, where relief from sanction is not opposed; it was agreed that they should be moved from Schedule 1 to Schedule 2 but this was not, as it is agreed it should have been, reflected in the sealed Order. The reason why they were moved was because they were unavailable to sign their particulars of claim due to being away on holiday;
Schedule 2 listed the names of 87 Claimants; they were each ordered to file and serve an 'Individual Particulars of Claim' by 4.00pm on 1st July 2013 failing which the same sanction applied. This is paragraphs 2 and 8 of my Order. The seven claimants on whose behalf the original (unamended) first application is made, were members of this group;
Schedule 3 listed the names of 27 Claimants; they were each ordered to file and serve an 'Individual Particulars of Claim' by 4.00pm on 15th July 2013 failing which the same sanction applied. This is paragraph 3 and 9 of my Order. Mr. Morgan was one of the Schedule 3 group of claimants.
The chronology of the action prior to the Order of 12 th June 2013 can besummarised as follows. A Claim Form was issued on 9th May 2012 again ELS International Lawyers LLP ('the Defendant') with 'Particulars of Claim to follow'. The 'brief details of claim' were:
"The Defendant provided the Claimants with professionally negligent legal advice, occasioning loss to the Claimants. The Defendant will seek to pass the liability of (sic) the advice to another party, of (sic) which, the Claimants have no binding relationship above and beyond the Defendant."
This was not a particularly clear endorsement either in terms of the use of English or its substance, other than there being an allegation of 'professional negligence'. The value of the claim was pleaded as "In excess of £1,000,000 (to be revised, if so required)". The Claim Form was valid for service until 9th September 2012. On 5th September 2012, before service, the Claim Form was amended to add European Legal Solutions SL (hereinafter 'SL') as Second Defendant. In addition the 'brief details of claim' were amended to add the words:
"The Claimants causes of action arise in and/or (sic) breaches of contract and/or negligence."
Annexed to the Claim Form was a list of the names and addresses of the claimants. The Claim Form was served on ELS International Lawyers LLP but was never served on European Legal Solutions SL. The validity of the Claim Form for service on 'SL' expired on 9th September 2012.
By virtue of CPR 7.4(2), Particulars of Claim must be served no later than the latest time for serving a Claim Form. In this case the Claim Form had to be served by 9th September 2012. On 5th September 2012, the Claimants filed, but did not serve, an application notice seeking what amounted to an extension of time for serving Particulars of Claim in the claims of just five Claimants, with a stay on the requirement to serve Particulars of Claim for any other Claimant until the claims of the five were determined. By Order of His Honour Judge McKenna (sitting as a Judge of the High Court) dated 12th October 2012 this application was listed for hearing on 6th December 2012 with directions for the filing of evidence and skeleton arguments for that hearing.
On 6th December 2012 His Honour Judge Pearce-Higgins QC sitting as a Judge of the High Court, despite (I am told) being highly critical of the way in which the proceedings had been conducted by the Claimants, and despite no excuse or explanation for delays being offered, made an order adjourning the Claimants' application until the first open date after 1st March 2013, but also ordering that "the Claimants have permission to served draft Particulars of Claim on the Defendant by 11th January 2013". On 11th January draft Particulars of Claim (not bearing a Statement of Truth) were served, but these were entirely generic and contained no specific factual information in respect of any individual claimant, merely reference to an intention to serve 'Individual Particulars of Claim'.
By a draft Consent Order dated 15th April 2013, which was approved and made by District Judge Davies on 26th April 2013, it was ordered that the time for service of the (generic) Particulars of Claim (inaccurately referred to as the Amended Particulars of Claim) was extended until 17th April 2013. It was further ordered that:
"By on or before 4pm on 31 May 2013 the Claimants shall file and serve on the First Defendant case specific Particulars of Claim, which Particulars of Claim shall contain in each case the information referred to in the document annexed to this Order and...
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