Claim struck out – solicitors failed to serve Particulars of Claim in time – Defendant applied to strike out claim – order striking out claim – Associated Electrical Industries Ltd v Alstom UK  EWHC 430
Legal claims can be struck out by courts for many different reasons. So can Defences, and parts of Claims and Defences. The consequences of striking out are often serious:
- a struck out claimant loses the chance of recovering what he or she is claiming, usually a debt or damages and his or her legal costs;
- a struck out defendant loses the chance of avoiding having to pay a debt or damages and legal costs to a claimant;
- furthermore, a struck out party often has to pay his or her opponent’s legal costs as well as their own;
- a struck out claimant can be prevented from making another claim unless and until he or she pays the costs of the first action;
- if only part of a case is struck out, the affected party is prevented from, in the case of the claimant, claiming and recovering the claim in full and, in the case of a defendant, fully defending a claim.
If a client’s case is struck out as a result of negligence by a solicitor, barrister or other legal adviser then the client may be able to recover his or her losses by making a negligence claim against the lawyer.
The most common mistakes made by lawyers that lead to striking out of claims or defences include:
- not filing or serving the Claim Form, Particulars of Claim or Defence on time;
- not complying with a court order to take a certain step by a certain date;
- failing to pay court fees on time.
In the case of Associated Electrical Industries Ltd v Alstom UK  EWHC 430 the claimant solicitors failed to serve the particulars of claim in time which led to the court making a strike out order. As a result the claimant was unable to pursue its claim, which it valued at £270,000 plus costs. It would also have had to pay the defendant’s legal costs, which would have been substantial. To make matters worse, the claimant would have difficulty making a second claim which also could be struck out for being an abuse of process and/or out of time.
If all or part of your Claim or Defence has been struck out and you are concerned that your solicitor or other legal adviser has been negligent, and would like to speak to a solicitor who specialises in negligence claims against solicitors, please contact us now by:
- calling us on 0330 050 5254
- emailing us at firstname.lastname@example.org
We offer a full range of funding options, including conditional fee agreements (also known as ‘no win, no fee’ and ’no win, low fee’), fixed fees, legal expenses insurance, damages based agreements, as well as the standard hourly rate retainer.
It is not only claimants who risk their claims being struck out. In Cockell v Holton (No.2)  EWHC 1117 the Defendant’s counterclaim was struck out after its solicitors failed to file it at court in time.
The Defendant filed an undetailed Counterclaim of £1.6million in May 2014. In December 2014 the Court ordered it to file a detailed Amended Counterclaim by January 2015. The Defendant ignored that order. So in February 2015, the Court issued a further order, that unless the Defendant complied by Friday 20 March 2015, its Counterclaim would be struck out automatically.
It seems things were left to the last minute. An Amended Counterclaim was sent by email to the Court 10 minutes before the deadline expired – or so the lawyer dealing with the case thought. However, he mistyped the email address and the message was returned marked undeliverable. This occurred on a Friday and so the Amended Counterclaim was not filed with the court until early the following week after the problem came to light. As a result of this one error in the typing of an email address, the Counterclaim was automatically struck out..
Dismissing the Defendant’s application for relief to restore the Counterclaim, Mr Justice Edwards-Stuart explained that in his view, “Those who leave necessary steps until just before the deadline must take the risk of a last minute slip up.”