I have always found John M Hayes to be reliable, efficient and accurate.
Ryan Reed, Director, H.F.T. Gough & Co Ltd
It would be easy to succumb to the temptation for sensationalism and pen an article which gives the impression that a simple typing error is somehow synonymous with a possible loss of £1.6million to a Counterclaimant.
Whilst enthralling, that would be to miss the point. When Mr Justice Edwards-Stuart refused the Defendant’s Application for Relief from Sanction following the automatic striking out of its £1.6million Counterclaim, he did so because the error in question was a ‘culmination’ of a course of conduct that amounted to a continuing breach of a court Order made three months previous.
Thus depending upon the circumstances of any given case, in an Application for Relief from Sanction the chronology behind the causal breach may be equally or even more significant than the breach which forms the subject matter of the said Application when the Court is called upon to decide whether or not relief is justified in the circumstances. This, if anything, is a warning shot to solicitors in terms of how they conduct litigation in both the short and long term.
Turning to the facts, the December Order required the Defendant to file and serve an amended Defence and Counterclaim by 20 March 2015 (probably by 4pm), failing which the Counterclaim would automatically stand struck out. As could be expected, at 3:46pm on 20 March, the Defendant attempted to file and serve said statements of case. Unfortunately, the court’s email address was incorrectly typed and the message returned undeliverable – something which, for reasons known only to the solicitor, did not come to light until the following week when papers were filed with the court albeit out of time. Consequently, the statement of case was automatically struck out and it behoved the Defendant to make an Application for Relief.
The Application failed and the Counterclaim remained struck out.
As noted at the outset, it would be misguided emphasis to focus on the 3:46pm incident. That was, as the saying goes, the straw which broke the camel's back. The court was, of course, far more concerned with what had transpired previously, noting that if the late filing was the only issue, “one would not have expected an application for relief from sanctions to be opposed”.
The Defendant had been afforded two months in which to amend its Counterclaim but still failed to serve on time. The documents when served ‘were manifestly defective and so late in fact that there would have to be an adjournment of the trial if the Claimant were to be given a proper opportunity to deal with them'. Further, no attempt was made by either the Defendant or his solicitors to chase the information required from the insurers.
The lesson in this case, as noted by the Judge is: “Those who leave necessary steps until just before the deadline must take the risk of a last minute slip up”.
Friday 8th May 2015