Page & anr v Hewetts [2013] EWHC 2845 (Ch)

WTLR Issue: April 2014 #138

1. ANTHONY JOHN PAGE

2. TERENCE ALBERT PAGE (as administrators of the estates of ANNIE HARRIET PAGE and AUBREY WILFRID PAGE)

V

1. HEWETTS SOLICITORS

2. CHRISTOPHER ROBERT FULLER

Analysis

The claimants were the administrators of their parents’ estates and they had engaged the defendants (a firm of solicitors and one of the firm’s legal executives) to advise them in the administration. The claimants commenced proceedings against the defendants for breach of duty and dishonestly procuring a secret profit in relation to the sale of the principal asset of the estate. Believing the matter to be time barred, the defendants made an application for summary judgment. The court allowed this application and dismissed the claims on the basis of expiration of the limitation period.

The claimants appealed and the Court of Appeal overturned the dismissal of the secret profits claim as it was considered that this was not a matter that should have been dealt with summarily. The matter was returned to the High Court to be heard as a preliminary issue.

The issue before the High Court was whether the secret profits claim had been brought in time for limitation purposes. Both parties agreed that the cause of action arose on 6 February 2003 and therefore that the date for limitation purposes was 6 February 2009. The claim was formally issued by the court office on 17 February 2009.

The solicitors for the claimants argued that the claim had been issued in time as they had originally sent the claim form, particulars of claim and the appropriate fee to the court on 3 December 2008 by DX. They gave oral evidence of their office procedures (no contemporaneous written record was kept of important paperwork leaving the office) and they considered this to demonstrate that the only explanation for the missing paperwork was that the court office had lost it. As the paperwork should have arrived on or before 5 December 2008, they were ‘in time’.

By way of secondary argument, they stated that by mid-January 2009 they had not received the issued claim form so they contacted the court office. They were advised that the claim had not been received and so the claim paperwork was resent together with the fee on 4 February 2009. This was received by the court on 6 February 2009. On 10 February 2009 the claimants’ solicitors were contacted by a court officer who advised them that the incorrect fee had been sent and a further £400 was payable. The claimants’ solicitors sent this and it arrived on 17 February 2009. The court office issued the claim on the same day. The claimants’ solicitors did not consider that the absence of the correct fee should mean that the claim was time barred as the claim paperwork had arrived on 6 February 2009.

Held:

  1. 1) The duty was on the claimants to ensure that the claim was issued before the expiration of the limitation period, or that at the very least they had done everything reasonably possible to ensure that the claim was issued within time.
  2. 2) Despite witness evidence of office procedures for sending documents in the DX at the claimants’ solicitors and of the ‘impossibility’ of these papers accidentally being left in the office, the claimants had not provided any contemporaneous records evidencing that this paperwork was sent. The court office, on the other hand, had a record receipt system which could identify the date of receipt of documentation. While it could not be said that the court’s system was faultless, the procedures that were in place meant that, on balance, it was more likely than not that the court office had not received the December 2008 paperwork.
  3. 3) Although the second set of paperwork arrived at court on 6 February 2009, the appropriate fee was not attached. This was only received on 17 February 2009. The Court of Appeal had identified the need to include the appropriate fee as an essential requirement for a claim to be complete and capable of issue. The High Court was of the same view.
  4. 4) The claimants had therefore not done all they could reasonably be expected to do to ensure that the claim was issued within limitation. Further steps could have been taken by them. The fact that they were not was a risk which they unilaterally took.
  5. 5) Unless s21 of the Limitation Act 1980 can be applied, the claim was time barred. The application of s21 was the reserve of the Court of Appeal and the case was to be remitted to that court.
JUDGMENT HILDYARD J: Scope of preliminary issue, and its direction by the Court of Appeal [1] The principal events to which the claims in this action relate took place in early 1999. The claims are for breach of the duties owed in contract and/or tort by the first defendant (a firm of solicitors) and the …
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Counsel Details

(Graham Platford
Five Paper, 5 Paper Buildings, Temple, London EC4Y 7HB, tel 020 7815 3200, e-mail clerks@fivepaper.com) instructed by Cavershams Solicitors Limited (Caversham Chambers, 51A Church Street, Caversham, Reading RG4 8AX, tel 0118 947 8638, e-mail info@cavershamsolicitors.co.uk) for the claimants. Dan Stacey (Hailsham Chambers, 4 Paper Buildings, Temple, London EC4Y 7EX, tel 020 7643 5000, e-mail clerks@hailshamchambers.com) instructed by Hewetts Solicitors (55-57 London Street, Reading RG1 4PS, tel 0118 957 5337, e-mail enquiries@hewetts.co.uk) for the first defendant. Dan Stacey (Hailsham Chambers, 4 Paper Buildings, Temple, London EC4Y 7EX, tel 020 7643 5000, e-mail clerks@hailshamchambers.com) instructed by Henmans LLP (now Henmans Freeth LLP, 5000 Oxford Business Park South, Oxford OX4 2BH, tel 01865 781000, e-mail welcome@henmansfreeth.co.uk) for the second defendant.

Cases Referenced

Legislation Referenced

  • Civil Procedure Fees Order 2004
  • Civil Procedure Fees Order 2008/1053
  • Limitation Act 1980, s21
  • Supreme Court Fees Order 1980