The Court of Appeal has provided clarification of exactly when a claim is regarded as having been ‘brought’ for the purposes of the Limitation Act 1980 (the Act) and the steps that a prudent solicitor will take to ensure that claims are issued within the relevant time limits.

In Page and another v Hewetts Solicitors and another [2012] EWCA Civ 805, the claimants alleged that two parcels of land had been sold at an undervalue (estimated at around £160,000) due to the negligent advice of their conveyancing solicitors, Hewetts. They also alleged that the legal executive involved received a commission from the developer who purchased the land.

The claimants’ solicitors initially attempted to issue a claim against the defendant solicitors for negligence and an account of profits in early December 2008. The claimants’ solicitors provided evidence that the claim form and particulars of claim were sent to the court by DX on 3 December 2008, together with a covering letter requesting issue. The claimants contend that, in normal circumstances, the documentation should have been received by the court no later than 5 December 2008. However, the court has no record of ever receiving these papers. Following the claimants’ solicitor’s enquiries in mid-January 2009, photo-copies of the papers were sent through to the court office in February and the claim was finally issued on 17 February 2009. The claimants maintain that the original papers must have been either lost or misplaced by the court.

The defendant applied for summary judgment on the basis that the time for the claimant to bring the claim expired on 6 February 2009. Master Bragge gave summary judgment against the claimants as he was satisfied ‘on the balance of probabilities’ that the claim form had not arrived at the court office in time, and determined that the claim stood no real prospect of success because it was statute barred under the Act. The decision was upheld on appeal in the High Court which in turn was appealed to the Court of Appeal, the decision being handed down on 15 May 2012.

The appeal

The appeal was allowed by Lewison LJ. It was incorrect to apply the balance of probabilities test in these circumstances. The application had been for summary judgment and therefore the correct test was whether or not the claimants had a real prospect of showing that the documents had arrived at the court. In the court’s judgment, there was a real prospect that the claimants could show that the documents had at least reached the court’s postroom.  The Court of Appeal therefore ruled that the claim should be heard in full.

When proceedings are ‘brought’ under the Act

It is evident that the claimants’ chances of success in this claim hinge on whether the claim was in fact issued in time. Section 23 of the Act states that:

'An action for an account shall not be brought after the expiration of any time limit under this Act which is applicable to the claim which is the basis of the duty to account'.

Guidance on the meaning of ‘brought’ was provided by Tuckey LJ in Barnes v St Helens Metropolitan Borough Council [2006] EWCA Civ 1372:

‘when the claimant’s request for the issue of the claim form … is delivered to the court office’.

It is therefore the request to issue the claim form that ‘stops the clock’. When the claim is heard in full, the claimants will need to prove on the balance of probabilities that the request to issue was made before 6 February 2009. According to the claimants’ evidence, the documentation was mislaid or lost by the court in December 2008 and therefore the claimants had made the necessary request. 

Lewison LJ felt strongly that the way in which paperwork is dealt with by the court should not materially alter a claimant’s prospects of succeeding with their claim and follows established case law such as Aly v Aly (1984) and Riniker v University College London (1999) that a party cannot be held responsible for shortcomings of the court.

Once delivered to the court, the request to start a claim exonerates a claimant of risk with regards to the limitation period.  Solicitors and litigants in person must therefore ensure that they have done all they can to ensure that the court has received the request to issue the claim. It is good practice to pay heed to the guidance in Part 7 of the Civil Procedure Rules at paragraph 5.4 and to make a good record of the date that claim forms are sent to court by whatever means and, where possible, to deliver by hand and then wait at the court office to collect evidence of when the claim form has been delivered, if not issued. A certificate of lodgement (or a stamped copy cover letter in its place) is the best evidence one can obtain from the court office for these purposes.

There will of course be occasions where hand delivery is not an option. In such circumstances, recorded delivery should be the bare minimum action taken in order to avoid entering into the dangerous territory of being left vulnerable to summary judgment due to the expiry of a limitation period