Page & Anor v Hewetts Solicitors & Anor

For proceedings to be brought within a limitation period, the claimant must establish that the claim form was delivered to the court in time, accompanied by a request for issue and the appropriate fee. The risk of non-persuasion remains with the claimant until those requirements are satisfied. A claim for an account of profits is a separate discretionary equitable remedy and an additional non-money claim for court-fee purposes. An underpayment of the required fee means that the claimant has not done all that is necessary to bring the proceedings, even where the shortfall is relatively small. The claim was therefore out of time, subject to the unresolved question whether Limitation Act 1980, section 21 applied.

The claim concerned alleged breaches of duty by solicitors and a legal executive in connection with the sale of an estate asset at an undervalue, together with claims concerning alleged secret profits. The common law claims had already been struck out as time-barred. The Court of Appeal directed a trial of a preliminary issue concerning whether the secret profit claims had been brought within six years of 6 February 2003.

The claimants relied on documents said to have been sent by DX on 3 December 2008 and on duplicate documents received by the Chancery Registry on 6 February 2009. The issues were whether the earlier documents had been received and, if not, whether the later documents were complete and accompanied by the appropriate fee.

1. Preliminary issue. The proceedings had not been brought within the assumed limitation period, unless section 21 of the Limitation Act 1980 applied. The section 21 issue was reserved for the Court of Appeal.
2. The claimants bore the burden of proving, on the balance of probabilities, that the claim form had been delivered to the court office in due time, accompanied by a request for issue and the appropriate fee. Once those matters were proved, subsequent loss or delay by the court would not prejudice the claimant. The risk of non-persuasion remained with the claimants until then.
3. The evidence did not establish receipt of the documents allegedly sent on 3 December 2008. The solicitors had no record of dispatch or delivery, whereas the court maintained records of receipt and none was shown. The proceedings therefore could not be treated as brought before, at the earliest, 5 or 6 February 2009.
4. The court was disposed to accept the approach in Pritam v S Russell & Sons [1973] 1 QB 336 (CA), approving Marren v Dawson Bentley & Co Ltd [1961] 2 QB 135, that the first day after the relevant event is not counted. Receipt on 6 February 2009 would therefore have been in time if the documents had been complete.
5. The appropriate fee was £1,390, not £990. The claim form contained both money claims and an additional claim for an account of profits. An account is a separate and discretionary equitable remedy, requiring an additional assessment and inquiry, and is an additional non-money claim for fee purposes. The court adopted the description of an account in Ultraframe (UK) Ltd v Fielding & Ors [2005] EWHC 1638 (Ch) as the means by which a beneficiary requires a trustee to justify his stewardship of trust property.
6. The underpayment meant that the claimants had not done all that was required to bring the proceedings. They had left the error too late to correct, and the claim was not brought within the permitted period. Directions on the possible reopening of the assumed knowledge date and on costs were to follow.

1. Court of Appeal. The common law claims were held to be time-barred and struck out. The decision below on the secret profit claims was reversed to the extent that factual determination was required as to whether those proceedings had been brought within time. The issue concerning section 21 of the Limitation Act 1980 was adjourned.
2. High Court (Chancery Division). Following a trial of the directed preliminary issue, the court held that the proceedings had not been brought within the limitation period, subject to the reserved section 21 issue.