Solicitors negligence: Limitation and striking out

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When a legal action is struck out by a court for some procedural error or a failure to comply with a limitation date the blame invariably falls on the losing party’s solicitor.

We are regularly consulted by people who have been the victim of a court decision that has effectively scuppered their legal claim.

Experienced litigation lawyers know that court procedures have to be followed to the letter and are aware of the perils of leaving things to the last minute, when the risk of falling foul of a limitation technicality is at its highest. It is therefore good practice for cases to be conducted with this in mind.

However, the best laid plans and intentions often go awry and when they do, predatory lawyers lie in wait, eager to leap on the slightest procedural error in the hope that an otherwise meritorious claim can be defeated on a technicality.

If a claim is struck out by the court the claimant should seek independent advice from a lawyer specialising in solicitors negligence claims.

Where the fault lies with the solicitor and their negligence has led to the claim being lost then the client will be entitled to bring a claim against the negligent solicitor for compensation for their losses.

The court system has been criticised for being too preoccupied with procedural perfection and in doing so losing sight of its core role in ensuring that justice is done.

This has encouraged lawyers to make procedural and technical challenges wherever an opportunity presents itself.

However, such challenges are not always successful as the recent decision in Jones v Chichester Harbour Conservancy and others attests

A personal injury claim was brought by a young paraplegic. The defendant said that the claim should be struck out because the court proceedings had been served out of time.

The court had set the limitation date in the case as 17th January 2017. But although the claimant’s solicitors had emailed the court proceedings to the defendant on 17th January and put them in the first class post that night, the defendant argued that the they had not agreed to service by email and that the ‘deemed’ date of service for the post was the 19th. The limitation date, they said, had therefore been missed.

If the application to strike out the claim had succeeded then the claimant’s solicitors would no doubt have faced an expensive negligence claim. Luckily for them, the court exercised a common sense approach, agreeing that the step of posting the proceedings on the 17th was sufficient to comply with the rules. It was nevertheless a close shave, and who know what a different judge on a different day might have made of the legal submissions?

It is for this reason that litigation solicitors tend to be cautious about limitation dates and other key deadlines. But when disaster does strike then our team of experienced negligence solicitors are here to help.

We will assess the merits of a professional negligence case free of charge and can obtainthe solicitor’s original file where this is necessary to determine fault.

Call us on 0808 139 1606 or send an email to [email protected]