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In the case of Holterman v Electrium Sales Ltd & Anor  EWHC 3915 (TCC) (09 September 2020) , HHJ Bird stated that “a solicitor, no matter how experienced or inexperienced, must be taken to know the Civil Procedure Rules”.
Our Director of the Frenkel Topping Group, Professor Dominic Regan, recently brought this to light, hence we thought it helpful to provide a summary of the case.
The Claimant, when issuing proceedings in this case, made an unfortunate error and failed to serve the Particulars of Claim within the requisite time limit. The last day for serving the Claim Form was 21 May 2020 and the Claim Form was served on 20 May 2020. In accordance with CPR 7.4 the Particulars of Claim must be served on the Defendant no later than the latest time for serving the Claim Form, which in this instance was 21 May 2020. The Claimant mistakenly believed he had a further 14 days after service of the Claim Form to serve the Particulars of Claim and consequently served them on 3 June 2020, some 13 days late.
An application for relief from sanctions was made and the three-stage test in Denton v TH White Limited  was applied.
The Claimant stated that “he held a genuine belief that serving Particulars of Claim by 3 June 2020 was in compliance with the CPR as a result of the Amended Claim Form and ….. sought at all times to comply with the rules and believed that [he] was doing so.”
The Judge commented as follows:
“Mr Mak’s genuine belief that in acting as he did, he was complying with the CPR in my judgment falls far short of a good reason for the default. Mr Moody QC accepted that the authorities supported that view. Mr Mak’s view of the rules was wrong, and in my judgment plainly so. The view he held was also clearly unreasonable. A solicitor, no matter how experienced or inexperienced, must be taken to know the Civil Procedure Rules”
Working through Denton’s “3-stage test”, the Judge did grant relief for the Claimant in this instance, confirming:
“I have come to the view, despite the clear and obvious failings in the way the claim has been handled to date and the absence of a good reason for the serious default, that relief should be granted.”
“I am satisfied that the overall justice of the case requires it. In particular the fact that the only surviving part of the claim could be the subject of a new claim and that the delay caused no prejudice are important factors. Refusing relief would in my judgment mark a return to an overly mechanistic, pre-Denton approach to CPR 3.9.”
Please do listen to our September “Bacon Broadcast”, when Deputy Master Peter Howarth discusses with Sue Fox the recoverability of time incurred reviewing the CPR. Legal research is discussed at 14 mins 15 seconds of the Broadcast A & M Bacon Broadcast – Insight from the Bench – Deputy Master Haworth discusses file management. – YouTube, when Deputy Master Haworth comments that “litigators are meant to know the ins and outs of CPR” and later states that “you’re unlikely to recover costs for researching the rules of Court, it’s something that you’re meant to know“.
If you require any assistance with your legal costs requirements, please do get in touch with the team on 01733 350 880, or by email firstname.lastname@example.org. For more information please do visit our website www.aandmbacon.co.uk.
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