Solicitors negligence: Bethell Construction Ltd & Anor v Deloitte and Touche [2011] EWCA Civ 1321

Carruthers Law are experts in solicitors negligence and all claims against professionals. Why not call for advice. We write as to a recent case of interest to both clients and practitioners. In the Court of Appeal decision of Bethell Construction Ltd & Anor v Deloitte and Touche [2011] EWCA Civ 1321 the Court found that a Defendant to proceedings had not been served with a claim form nor waived its entitlement to require its proper service. Also there were no exceptional circumstances to justify dispensing with service under CPR r.6.16.

Bethell Construction Limited (B) commenced a professional negligence claim against the Defendant’s (D) for accounting services in 2000/01. B sent a copy of the claim form to D but expressly stated that it was not by way service.

The parties agreed between them that the claim form would be extended until a specified date or 14 days after written notice of the termination of the extension was given by one party to the other, whichever was later.

The litigation was delayed. B instructed a new solicitors and attempted to serve the particulars of claim but did not serve a claim form.

D then served notice under their previous agreement but B’s new solicitors still did not serve the claim form.

D then objected when B solicitors later attempted to serve the claim form arguing that the claim had now become time barred. B’s solicitor applied to the court for various orders all of which were rejected by the High Court. B then appealed to the Court of Appeal.

  • The court rejected B’s argument that the claim form had impliedly been served previously, because a claim cannot be validly served until the claim form had been served. It was not open to B to choose an alternative method of service which was not contained in the Civil Procedure Rules (CPR).
  • Whilst D’s solicitors had used the word stay that was clearly an error.
  • Whilst D’s solicitors knew that B’s solicitors who had taken over the case had made a mistake in thinking that the claim Form had already been served, D’s solicitors were not under a duty to reply. If they had of replied however they would have been under a duty to give a proper detailed reply which did not mislead. D’s solicitors had set a trap but the Claimant’s solicitors should have realised the position.

It is a difficult position to be in for the solicitor who is acting for a client who realises the other side has made a mistake.

A solicitor has a duty to his client and if an advantage can be taken then it should be. A solicitor must however, not behave in a misleading way, by behaving in a way which is “unconscionable”. The mistake in this case was that of the Claimant’s solicitors.

The letter written by B’s solicitor of the 14th October enclosing the particulars of claim by way of service clearly showed that the solicitor was acting under a misapprehension.

A letter of reply from Deloitte to the letter of the 14th October 2010, stated:

  • “In the circumstances, we hereby give the requisite 14 days notice as to termination of the stay but would be agreeable to treating your letter of the 14th October as a form of implied notice if you prefer.”

This clearly gave the solicitor for B notice of the previous agreement and it should have alerted them to that fact.

The Court were not going to intervene and correct such an error made by the solicitor.

CPR.6.15 allows a court to make an oder for service by an alternative method and/or to order that steps previously taken by a claimant to bring the claim form to the attention of the defendant amount to good service by such method. In this case there was no reason why the Court should exercise its discretion as it would, effectively, rewrite the agreement between the parties,denying D of its accrued rights.

CPR r.6.16 allows a Court to dispense with service of the claim form in exceptional circumstances. Since the facts did not disclose a good reason  under CPR r.6.15 they could not provide exceptional circumstances sufficient to justify dispensing with service altogether under CPR r.6.16. They had failed to show any ground on which the court could interfere with the discretion of the judge.

As the Court of Appeal stated;

  • “Even accepting, as the judge found, they (D) had set a trap the cause of Bethel’s problems was that Mr. Austin fell into it.”

The decision in this case is consistent with the principle that a solicitor owes no duty of care to his opponent although they do owe a professional obligation to act with integrity both under the code of conduct and as officers of the court.

The key question for any court is whether the solicitor setting the trap or taking advantage of the mistake has acted fairly. It is up to solicitors to avoid traps because the courts will not come to their aid.

If you have a Solicitors Negligence claim then why not call us today or complete one of our simple enquiry forms.

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