Did you hear the one about the underpaid solicitor?
This sounds like the beginning of a very bad joke and whilst it is not a joke, it does have a very bad ending.
In a landlord & tenant claim, the Claimant had four months within which to make an application to the Court to implement a new lease. The basis of the application isn’t really necessary for the terms of this article but the actions of the solicitors are. Two days before the limitation period expired, the solicitors prepared the application and arranged for it to be personally delivered to the Court. Unfortunately, there were some renovation works going on at the Court and the Court could not accept either the papers or the payment of the issue fee but agreed that if the papers were lodged in the court post box by 2pm, it would be accepted.
The Claimant’s solicitor agreed and left the papers at the Court with a covering letter which said:
“Please accept this letter as our authority for you to deduct the court fee of £308 using our account number …”
Unfortunately, only six months beforehand, the Court fee had increased to £332. Because the solicitors had only authorised £308, the court could not issue the claim form and returned the papers to the solicitors. By then, limitation had expired.
The solicitors made an immediate application to the Court for relief from sanction on the grounds of an “inadvertent clerical error”. The claim was dismissed. The judge who considered the matter felt that this was not a failure to comply with a rule or practice direction, thus the failure not to issue within time was not an error of the Court. Specifically, he said:
“There has been no breach of any rule, practice direction or court order and the obstacle standing in the way of the claim is not any sanction imposed by the Court but the fact that the limitation period had expired by the time the Claim Form was issued.”
The solicitors appealed but the Court of Appeal recently concluded that the Recorder’s decision was correct.
This is such an obvious error and could give rise to a claim for professional negligence. The test when it comes to a claim for professional negligence is the “Bolam test” which arose from a clinical negligence claim but has been extended to all professional negligence claims: what would a reasonably competent professional with similar qualifications and experience have done? If a body of similarly qualified solicitors would have done the same thing, then in all likelihood, breach of duty of care would not be established but in the factual scenario thrown up by this particular case, I think it would be difficult to defend such a claim. Whilst I do not know the ins and outs of what occurred at the time and why the solicitor did not check the amount of the fee, it would not be difficult to say that a solicitor who holds themselves as dealing with litigation and Court claims should reasonably be expected to know the value of the issue fee.
