A “Purdie” big mess

A delay in the claimant's proceedings recently lead to a personal injury case against a council being dismissed entirely. Catherine Kearney explains why.

The risks inherent in a litigator leaving everything to the last minute were illustrated in Ross Purdie v Hastings Borough Council where the claimant’s solicitors were held to have handled the claim “with such a degree of ineptitude … that it left the claim almost abandoned at times…”. The “…overall delays and defaults on the claimant’s side…” were described by the court as “…frankly catastrophic when taken together…”.

The facts

The claimant alleged that on 4 September 2014, an extremely heavy cast-iron gate on display outside Hastings Museum spontaneously came free of its fixing and fell forward onto him, leading to the amputation of all the toes of his right foot. A letter of claim was promptly dispatched on 19 September 2014. Liability was repudiated and remained in dispute throughout. Pre-action disclosure and inspection of the gate by the claimant’s engineer took place. Repeated calls by the defendant’s solicitor for clarification of the mechanics of the accident, about which there was suspicion, fell on deaf ears. Indeed, the litigation was characterised by long periods of silence on the part of the claimant’s solicitor.

The limitation period expired on 4 September 2017 without a claim form having been issued. This was despite the claim form having been sent to the County Court Money Claims Centre (“CCMCC”) on 22 August 2017 but, for reasons discussed below, it was not issued until 6 August 2018. With a curious absence of urgency, the claimant’s solicitor then purported to serve the defendant personally on 6 December 2018, on the last day of the four month service period, despite having been informed twice by the defendant’s solicitor before that date that they were instructed to accept service.

The defendant applied to set aside the claim form in accordance with CPR 6.7 and 7.5 and to strike out the claim. The claimant cross-applied for the following orders: a) under section 33 of the Limitation Act 1980 that he be not debarred from pursuing his claim; b) that he be granted relief from sanctions for not serving the claim form properly or that his time for doing so be extended, or alternatively c) that his service on the defendant personally be deemed to have been valid.

Judgment

Granting the defendant’s application and dismissing the claimant’s, DDJ Beach commented that it would have been inequitable to allow the claim to proceed.

In relation to the limitation issue, the claimant’s solicitor sent the claim form to the CCMCC on 22 August 2017 but it was returned on 8 September 2017 unissued, apparently due to the absence of a signed statement of truth on the fees remission application. This took the claim beyond the three-year statutory limitation period. Although a further fees remission form was sent to the CCMCC on 13 September 2017, the court refused to issue the claim form until the claimant’s benefits position had been clarified. There then ensued an inexplicable period of delay of ten months, when a further form was submitted which was accepted by the CCMCC. The issue fee was remitted and the claim was stamped as received on 30 July 2018 and issued on 6 August 2018.

Although the claimant’s solicitor asked the CCMCC more than once to record that the claim form had been initially received in August 2017, it did not do so, and the judge commented that it was not received in a condition in which it could have been issued, given the lack of a fee and the improper completion of the relief from fees application. It was thus not validly received and the claim was statue-barred.

Declining to exercise his discretion under section 33(1) of the Limitation Act, the judge cited the “extraordinary” delay; the prejudice caused to the defendant by the likelihood of having to introduce less cogent evidence; the “assiduous” compliance with their obligations by the defendant’s solicitors; and the seeming abandonment of the claim by the claimant’s solicitor. He took two further matters into account: the claimant’s failure to set out his case in relation to the mechanics of the alleged accident; and the lack of proactivity by the claimant’s solicitors between September 2017 and July 2018.

Indeed, the judge observed that, over a total period of nearly four years and three months, and without explanation, they:

“were in active contact with the defendant’s side for a combined total of only 35 days. They were silent for a total of 4 years and 44 days. On two occasions, the periods of silence lasted well over a year and in a third instance for nearly a year.”

Turning (in the event that he was wrong as to the limitation issue) to the issue of purported service on the defendant on 6 December 2018, the judge noted that not only had the defendant’s solicitors twice confirmed in writing, months before, that they were instructed to accept service, but that they had reconfirmed this on 6 December, once by email and once by telephone. Refusing to extend the time limit for service retrospectively, the judge praised the defendant’s solicitor’s conduct, noting that he had indeed “…tried to be helpful by pointing out the procedural necessities to the claimant’s solicitors before it was too late”.

Dealing finally with the application for relief from sanctions, DDJ Beach, applying the Denton test, held that the breach was serious and significant; that no acceptable explanation had been given; and that no other circumstances justified the giving of relief.

Comment

Clearly there are more lessons for claimants than defendants in this judgment but it is worth bearing in mind that scrutiny of conduct will not be one-sided and the defendant’s solicitor’s adoption of a firm but fair approach factored into the judge’s decision making.

Catherine Kearney is a partner at Weightmans. She can be contacted on 020 8036 6973 or This email address is being protected from spambots. You need JavaScript enabled to view it..

Weightmans (instructing Steven Snowden QC) acted for the successful defendant, Hastings Borough Council, on the instructions of its insurers.