Power v Meloy Whittle Robinson Solicitors

This depressing litigation reflects no credit on our civil justice system. It is yet another example of wasteful satellite litigation unconcerned with the merits of the underlying claim. The Claimant alone escapes censure.

From 1966 to 1979 the Claimant was employed by the National Coal Board. During the course of his employment he was required to use vibrating tools as a result of which he developed hand-arm vibration syndrome, which for convenience I will call VWF, vibration white finger. In due course he became entitled to be compensated under a statutory compensation scheme “the Scheme”, sometimes described as the HAVS Claims Handling Arrangement, administered by AON/IRISC Claims Management, “IRISC”, on behalf of the Department of Trade and Industry. The Scheme came into existence in the late 1990s.

In or about 1999 the Defendant Solicitors, Meloy Whittle Robinson, “MWR”, were instructed to act on behalf of the Claimant in the conduct of his claim for compensation pursuant to the Scheme.

MWR investigated the claim, obtained medical evidence and registered the Claimant’s claim with IRISC. The Claimant’s claim was compromised on 28 January 2000 by the Claimant’s acceptance of £6,771,60 in full and final settlement of his claim.

That sum represented an award for pain and suffering and handicap on the labour market. It made no allowance for what is conventionally described as a “services claim” – a claim dependent upon demonstrating that in consequence of his being affected by VWF, rather than by any other preceding or supervening medical condition, the Claimant required assistance with routine domestic tasks such as gardening, DIY, car maintenance, car washing and so forth.

The Claimant alleges that MWR negligently failed to investigate and pursue a services claim on his behalf. The cut-off date for presentation of such claims was 31 March 2005. It is the Claimant’s contention that a claim for services on his behalf, if pursued, would have been settled in or about October 2005 in the sum of £27,947.34, net of interest payable pursuant to the Scheme on sums paid for relevant assistant prior to the date of settlement. With interest the claim first intimated against MWR in May 2009 by letter from the Claimant’s current solicitors, Mellor Hargreaves, was I think of the order of £33,000.

As will be apparent the primary limitation period applicable to this claim, whether brought in contract or in tort, expired on 28 January 2006. However, it is common ground that the Claimant only had the relevant knowledge required for the bringing of an action as from 13 November 2008. Pursuant to s.14A of the Limitation Act 1980 the limitation period would therefore have expired on 13 November 2011.

On 10 March 2010 Messrs Berrymans Lace Mawer LLP, “BLM”, by now acting for MWR, confirmed to Messrs Mellor Hargreaves, at the latter’s request, that they were instructed to accept proceedings on behalf of their client. CPR 6.7-(1) states:-

There were other such claims against various firms of solicitors who had acted for VWF claimants. On 3 May 2011 HH Judge Hawkesworth QC in the Leeds County Court made a case management order “Apply[ing] to all prospective and existing claims alleging negligence against solicitors in the context of the advice given by those solicitors in respect of claims for damages for Hand Arm Vibration Syndrome (HAVS) under the Claims Handling Arrangement negotiated between the DTI and the Vibration White Finger Litigation Solicitors Group and which have been defined as the “VWF Professional Negligence Litigation” pursuant to the Order of HH Judge Hawkesworth QC dated 22 October 2010 (“VWF Claims”)”. The claim of the present Claimant was in terms of this Order a prospective claim as no proceedings had at the date of the Order been issued. The parties to a prospective claim were thus required to follow a mandatory court sanctioned procedure prior to the issue of proceedings, which procedure was in many ways similar to the regime to which the parties would have been subject after the institution of proceedings had the claim not been subject to the Order. Thus the content and format of pre-issue information to be given by a claimant to a defendant was prescribed in detail, as were the disclosure obligations of each party. The Claimant was required to serve a letter of claim containing prescribed information and addressing those matters set out in the form of questions attached as Schedule A to the Case Management Order. Joint medical expert evidence was ordered insofar as the Defendant required expert evidence and the form of the letter of instruction to the expert was prescribed. Part 18 Requests were to be made by defendants, if so desired, whether proceedings had been issued or not as happened in the present case as I shall shortly describe. In effect therefore prospective claims were subject to the same case management by the court as are issued claims.

On 3 June 2011 the parties entered into a standstill agreement which suspended the running of the limitation period. On 31 January 2012 the Defendant validly served notice to terminate the standstill agreement. Under the provisions thereof, time therefore again began to run as from 1 May 2012 and the limitation period expired on 1 October 2012.

By 31 August 2012 the Claimant had complied with his obligations under the Case Management Order, including the service of the “Schedule A” response, and both parties had complied with their disclosure obligations. The substance and detail of the claim made by the Claimant against the Defendant was therefore as well known to the Defendant as if proceedings had been issued and statements of case and documents exchanged in the ordinary way. No medical expert evidence had by then been commissioned, the Defendant indicating that it required such evidence only on 18 September 2012 as hereafter appears.

On 19 March 2012 a new administrative system came into force relating to the issue of claim forms in money claims. From that date it was no longer possible to issue claim forms in respect of money claims over the counter in a local county court. Rather, all such claim forms had to be despatched to the County Court Money Claims Centre, Salford Business Centre, even in circumstances where the solicitors acting for the claimant wished to serve the claim form themselves. As is both obvious and by now well known, the new system built in the potential for new types of error. In particular, a solicitor now had to rely upon the court to send the issued claim form from Salford, rather than receiving it over the counter at his local county court.

On 31 August 2012, one month before the expiry of the limitation period, the Claimant’s solicitors, Mellor Hargreaves, sent to the Salford Business Centre for issue triplicate draft claim forms and notices of funding, together with an issue fee of £395.00. Underlined and in bold the covering letter requested that the issued claim form be returned to the Claimant’s solicitors for service. This reflected the terms of CPR 6.4-(1) which provides:-

Unfortunately the court then made a series of errors. On 14 September 2012 it issued the Claim Form, correctly marked for solicitor service. However, the court sent the issued Claim Form, response pack and notice of issue directly, by post, to the Respondents MWR, rather than returning sealed papers to Mellor Hargreaves for service by them on the Claimant’s behalf. Having effected or attempted to effect service in this way the court should, pursuant to CPR 6.17(1), have sent to Mellor Hargreaves a notice which included the date upon which the Claim Form is deemed served pursuant to CPR 6.14. It did not do so.

Mellor Hargreaves were unaware of the date on which the court would issue the Claim Form and were therefore unable to diarise the date of expiry of the validity for service of the Claim Form as was their usual practice. Mr Risby of Mellor Hargreaves had set up a spreadsheet to check the progress of this and other cases on which he was working which were of a similar nature. When sealed issued claims forms were received from the court they were entered into the spreadsheet and diarised for service by reference to their period of validity for service. Had the court notified Mellor Hargreaves that it had served, or attempted to serve, the Claim Form it would have come to the attention of Mellor Hargreaves that the court had failed to comply with their request. They would also have been on notice that the Claim Form had indeed been issued. No doubt it can be said that Mellor Hargreaves could and should have had in place a mechanism to check that the court had indeed complied with the request both to issue the Claim Form and to return it for service, but that does not detract from the fact that the court made two procedural errors of a type generally capable of being remedied under CPR 3.10, which reads:-

The recent decision of this court in Issac Stoute v LTA Operations Ltd T/A Lawn Tennis Association [2014] EWCA Civ 657 shows that:-

On 18 September 2012 MWR received the issued Claim Form, response pack and notice of issue. On that same day MWR sent scanned copies of those documents by email to their solicitor, Mr Richard Gould at BLM, under cover of a letter which said:-

On 18 September 2012 Messrs BLM wrote to Mellor Hargreaves as follows:-

Messrs Mellor Hargreaves did not respond to the letter of 18 September 2012.

On 1 October 2012 the limitation period expired.

On 31 October 2012 Messrs BLM wrote to Messrs Mellor Hargreaves as follows:-

On 14 January 2013 the four month validity for service of the Claim Form expired.

On 25 January 2013 Mr Gould of BLM telephoned Mr Risby of Mellor Hargreaves. According to the former’s file note he chased the Part 18 replies and queried the position regarding the Particulars of Claim. The Claim Form indicated on page 2 that Particulars of Claim were to follow, and by now they had not. Mr Risby said that he would check the position and revert. On the same day BLM by email sent to Mellor Hargreaves a further copy of Mr Gould’s letter of 18 September 2012 and of the Part 18 questions attached thereto.

On 1 February 2013 Mellow Hargreaves confirmed to BLM that they were “now in receipt of our client’s Part 18 replies and enclose a copy of the same by way of service upon you”.

Mr Risby explains in paragraph 10 of his first witness statement of 1 May 2013 what next happened:-

On 1 May 2013 the Claimant made an ex parte application for an extension of time for service of the Claim Form to 15 May 2013, pursuant to CPR 7.6 which provides:-

On 2 May 2013 Mr Risby filed a second witness statement pointing out, inter alia, that in other instances where his firm had asked the court to return papers for solicitor service the papers had been marked by the court with a red stamp containing the words “FOR SOLICITORS SERVICE PAPERS TO THEM ON” and that this had not occurred in this case. He also noted that he had as yet received no report from the court as to what had happened to the instant proceedings once they had been issued.

On 17 May 2013 Deputy District Judge Pickup on the ex parte application extended time for service of the Claim Form until 31 May 2013.

On 28 May 2013 Messrs Mellor Hargreaves sent to BLM by way of service a copy of DDJ Pickup’s Order, together with the Claim Form, Particulars of Claim, Application Notice, including Draft Order, dated 1 May 2013 and the first and second witness statements of Stephen Risby, in each case with Exhibits. The documents were also apparently served by hand at Messrs BLM’s office on 30 May 2013.

On 3 June 2013 Messrs BLM, for the Respondents, filed an Acknowledgement of Service. They ticked the box bearing the rubric “I intend to contest jurisdiction”. They did not however, within 14 days or at all, apply under CPR 11(1) disputing the court’s jurisdiction – cf the procedure prescribed in Hoddinott v Persimmon Homes Limited [2008] 1 WLR 806. Rather, on the same day, they issued an Application Notice seeking an order setting aside the Order of DDJ Pickup and striking out the proceedings. The application was supported by a witness statement of Mr Gould which revealed for the first time that the Claim Form had been sent directly to MWR, received by them on 18 September 2012, and that that firm had in turn sent them on to BLM on the same day. Mr Gould drew the obvious inference, at paragraph 11 of his witness statement, that the court must in error have sent the documents directly to the Defendants.

It was this application which came before HHJ Gosnell on 5 August 2013. At that hearing, albeit without any real notice, the Claimant relied not just upon CPR 7.6(3) and CPR 6.16 but also upon CPR 6.15 which provides:-

The skeleton argument itself was only served on the Respondents very shortly before the hearing. Despite the lateness of reliance upon CPR 6.15 and “the lack of evidence in support” the judge nevertheless decided to permit the argument to be pursued, noting that if it had had merit he would not have allowed it to be defeated by procedural shortcomings. Of course, it could be observed that the evidence in support, insofar as it failed to focus on the circumstances in which service had been effected on the Defendants direct, had been supplemented by the witness statement of Mr Gould in response, and that before receipt of that witness statement the Claimant had no knowledge of what had occurred. It seems to me that Judge Gosnell had before him all the material which he needed in order to give proper consideration to the application under CPR 6.15.

The judge decided that there was no good reason to authorise service by another method for essentially three reasons:-

The judge heard argument and gave judgment on 5 August 2013. Unfortunately he was not referred to the decision of the Supreme Court in Abela and others v Baadarani and another [2013] 1 WLR 2043, a decision handed down a little under six weeks earlier on 26 June 2013. That was a very different case on the facts, concerned with a defendant domiciled in Lebanon who was, at the least, refusing to co-operate so as to facilitate service of proceedings upon him. However Lord Clarke gave general guidance as to the proper approach to applications under CPR 6.15(2). The essence of the guidance is to be found in the following paragraphs of his judgment:-

In the light of this guidance Mr Simon Hale for the Respondents very realistically accepted that the judge’s first and third reasons for declining to grant the relief sought under CPR 6.15 are insupportable. The relevant focus is upon why the Claim Form could not have been served in the ordinary way during the period of its validity for service and, here, whether the steps already taken to bring the Claim Form to the attention of the Respondents constituted good service. Mr Hale accepted that we should consider the matter afresh. He urged upon us that in so doing we should, in the words of Andrew Smith J in Brown v Innovatorone plc [2010] 2 All ER (Comm), at paragraph 40 “adopt a rigorous approach to an application by a Claimant for indulgence”. The critical question was, he submitted, why could the Claimant not have served the Claim Form on the Defendant’s solicitors within the period of validity of the Claim Form? The answer to that question lay, he submitted, in the events in the six months after 18 September 2012 during which time, he suggested, the Claimant’s solicitors Mellor Hargreaves failed to engage with the correspondence from BLM. It was moreover a case where, having issued proceedings so close to the expiry of the limitation period, it behoved the Claimant to act with particular caution. Furthermore, he submitted, there was a flaw in the system operated by Messrs Mellor Hargreaves because they had in place no automatic follow-up to check whether a claim form had been issued by the court and returned to them. The latter point is of course correct, but it must be borne in mind not only that this was in September 2012 a very new procedure, but also that the court here made two distinct errors, both purporting to serve the documents despite a request not to do so and then compounding the error by failing to send to the Claimant the notice required by CPR 6.17 informing him that that is what it had done.

I agree that the Claimant’s solicitors Messrs Mellor Hargreaves can be criticised for failing to respond to the query in BLM’s letter of 18 September 2012 concerning the formality of service, and that steps could have been taken prior to 27 March 2013 in an attempt to ascertain what had become of the Claim Form. Mellor Hargreaves could I suppose have worked out from the letter of 18 September 2012 that BLM must have seen or have been told of a Claim Form bearing the date of issue 14 September 2012, but in the circumstances it is not I think a serious criticism that they did not at the time go through that thought process. As I have already indicated, the letter of 18 September 2012 was not helpful. Mellor Hargreaves did not know that the proceedings had been issued on 14 September 2012, as BLM did, but Mellor Hargreaves did know that they had neither received the issued Claim Form from the court nor served it themselves. To them therefore it would have been obvious that the proceedings had not been formally served, unaware as they were that the proceedings had in fact been served by the court on the Defendant direct. To BLM it was equally obvious that the proceedings had not been formally served as they had not been served on them as required by CPR 6.7. Without attributing bad faith to BLM I remain curious as to the intention which underlay their query as to the state of service. By the same token the letter of 31 October 2012, which Mr Hale characterises as “a chaser”, was no such thing, at any rate so far as concerns the status of service. The letter mentioned two matters arising out of the earlier letter which remained undealt with but conspicuously omitted mention of the query concerning “formal service”. The same can be said of the conversation which took place on 25 January 2013. By then the validity for service of the Claim Form had expired, as Mr Gould must have realised, and I think accepts at paragraph 15 of his witness statement that he did realise, since he alone knew the date of issue. Yet Mr Gould did not, on this occasion, as Mr Hale suggested in his skeleton argument, “yet again raise the question whether the proceedings were live”. On the contrary, he asked about the Particulars of Claim. Furthermore, as his attendance note confirms he was chasing the Part 18 replies, so giving the impression to Mr Risby that he was treating the claim as live.

This last point is I think key to a proper appreciation of the effect of the correspondence and the discussions, such as they were. The correspondence proceeded upon the clear understanding that the Claimant was actively pursuing his claim, which was being dealt with according to the Case Management Order but in respect of which it was clear that he had issued proceedings so as to protect his position so far as concerned limitation. Furthermore, the fact that the issued claim form had been sent by the court direct to MWR admitted only of the objective interpretation that the Claimant intended to pursue the proceedings, albeit BLM must have realised that he had not effected service in the required manner. Given Mellor Hargreaves’ state of ignorance, of which I appreciate BLM will not have known, nothing short of an explicit enquiry concerning the validity of service upon the client MWR direct in the light of CPR 6.7 would have sufficed to put Mellor Hargreaves on notice as to the errors made by the court or that they were in danger of not effecting service within the period of validity of the Claim Form. Looked at objectively, the correspondence and the single telephone conversation in fact had the effect of lulling Mellor Hargreaves into a false sense of security on that score. I note also that Mr Gould does not in his witness statement suggest that he was ever in any doubt as to the Claimant’s intention to pursue the claim. I am particularly puzzled as to why on 25 January 2013 he did not point out that service had not been effected as required, rather than, in full knowledge that time for service of the Claim Form had expired, see paragraph 15 of his witness statement, enquiring why Particulars of Claim had not been served.

That the Claimant intended to pursue the claim was apparent not just from his issue and service or attempted service of a Claim Form but also from the time and money expended in compliance with the Case Management Order. “The whole purpose of service is to inform the Defendant of the contents of the Claim Form and the nature of the Claimant’s case”. Here, the Defendants already knew the nature of the Claimant’s case. The only thing added by the Claim Form was the circumstance that its issue and service or attempted service demonstrated that the Claimant intended to convert his “potential claim” into an “existing claim”.

The criticisms that can be made of the Claimant’s solicitors Mellor Hargreaves as to their conduct between sending the draft Claim Form to Salford and 27 March 2013 are, in my view, muted. The judge accepted at paragraph 15 of his judgment that Mellor Hargreaves only became aware of their error (or more accurately of the court’s errors) at the end of March or early April 2013 and that they thereafter acted in a manner which “might just possibly be said to be promptly”. The Defendants knew everything they needed to know about the Claimant’s claim and knew that he intended to pursue it by action and that he had at the very least attempted to serve proceedings upon them, through the medium of the court. The correspondence and discussions between the solicitors, objectively viewed, can only have given the impression that the claim was acknowledged to be live, which in the context was consistent with service having been effected within the period of validity of the Claim Form. In my view there is in this case an overwhelmingly good reason to order under CPR 6.15(2) that the steps already taken to bring the Claim Form to the attention of the Defendants constituted good service.

In the circumstances it is unnecessary to consider further the effect of the acknowledgment of service.

I would unhesitatingly allow the appeal and order accordingly. I would invite Counsel to agree upon the wording of a form of Order which both satisfies the requirements of CPR 6.15(4) and gives such directions as are necessary in order to ensure that this action proceeds swiftly to trial. For the avoidance of doubt, I would order that the Claim Form was served on the Defendants on 18 September 2012.

I agree.

I also agree.