Practice and Procedure


PUBLISHED June 30, 2003

Where the claimant had had no arguable defence to an application to set aside an order extending time for service of personal injury proceedings, the cause of action in negligence against his solicitors for failure to commence proceedings in time had accrued when the order for extension had been made.Claimant's ('P') appeal from the order of HH Judge Thompson QC on 23 October 2002 that his claim for professional negligence was time barred and that his application be struck out, and varied on 11 November 2002 to judgment in favour of the defendant on the trial of the preliminary issue of whether the claim form was issued outside the limitation period. P had been injured in the course of his employment and had instructed the defendant firm ('the firm'). On 25 May 1993, the firm issued county court proceedings on P's behalf, and should have served the summons within four months of the date of issue, namely 24 September 1993. The firm's application for an extension of time for service, made on the basis that it was waiting for a second medical report, was granted on 24 September 1993. The defendant employer successfully applied to set aside the order granting an extension, the district judge holding that there was no reason why the firm could not have served the employer in time because there was no substantial difference between the two medical reports. In April 1994 the firm wrote to P stating that his claim could no longer be pursued and that he should obtain independent legal advice. On 14 April 2000 P issued the present proceedings, claiming damages for the loss of a chance to prosecute his claim against his employer. P argued that: (i) loss was sustained when the order of 24 September 1993 was set aside as it was only then that P lost his chance of succeeding against his employer, such that the present proceedings were not time barred; and (ii) looking at the matter in the round, some district judges might have taken a different view. The firm argued that the district judge was right to find as he had because there was no good reason why the summons had not been served in time and an inter partes application for an extension of time would be bound to fail.HELD: (1) It followed from Anthony Arthur Hatton v Messrs Chafes (A Firm) (2003) EWCA Civ 341 and Khan v Falvey & Co (2002) EWCA Civ 400 that if P had no arguable defence to an application by the employer to set aside the order for extension, he had suffered loss by September 1993. (2) The district judge was driven to the conclusion that there was no good reason for not serving the summons. An essential step in P's case against the firm was the failure to serve proceedings in time, and the test was whether a reasonable solicitor would have failed to serve proceedings in time. P's cause of action accrued on or about 24 September 1993, and not after 14 April 1994.Appeal dismissed.

[2003] EWCA Civ 1013