Maggistro-Contenta & Anor v O'Shea & Anor

An extension of time for serving particulars of claim may be refused under Civil Procedure Rules 1998 rr 3.1(2)(a) and 3.9 where the breach is serious, there is no good reason for it, and the pleaded claim has no real prospect of success. The court may consider the merits where they are clear from a brief review. An administrator cannot ordinarily incur personal administrator’s duties for acts or omissions before appointment. Express client instructions may defeat allegations that solicitors should have pursued a different transaction or obtained a better commercial outcome.

The claimant sought an extension of time after serving particulars of claim 21 days late. The defendants sought a declaration that the court had no jurisdiction because of the late service and an order striking out the claim for alleged non-compliance with the Civil Procedure Rules 1998.

The claim concerned alleged negligence by a solicitor and his LLP in handling a property sale, the transfer of sale proceeds, and a settlement with Prince Bahar. The central issues were whether relief from sanctions principles permitted an extension, whether the merits could be considered, and whether the pleaded claims had real prospects of success.

1. Application dismissed and declaration granted. The court refused the claimant’s application for an extension of time and declared that it had no jurisdiction to try the claim. The alleged defects in the claim form did not independently justify striking out the claim.
2. The court applied the three-stage approach in Mitchell and Denton. A 21-day failure to serve particulars of claim was serious and significant. The cause was counsel’s mistake, without a sufficient explanation. The breach caused additional cost and affected the defendants’ ability to understand the case.
3. The merits could be considered because the claim form was unclear, amendment was said to be necessary, and refusal of an extension would prevent the existing claim proceeding. The court should not conduct a mini-trial, but could assess whether the pleaded case had no real prospect of success from a relatively brief review.
4. The claim against Mr O’Shea had no real prospect of success. He was appointed administrator only after the material pre-appointment acts. There was no executor, no person with title to act for the estate before the grant, and no basis for treating him as a de facto administrator or administrator de son tort.
5. The claim against the LLP was also unpromising. The documents showed that the claimant authorised the sale of 21 Harley Street, was aware of competing offers, authorised the transfer arrangements, and controlled the companies receiving the proceeds. The settlement with Prince Bahar was a commercial negotiation accepted by the claimant, and the pleaded allegations sought to impose duties beyond the ordinary scope of the retainers.
6. The procedural defaults relied on by the defendants did not warrant striking out the claim. The claimant’s application was dismissed and the jurisdiction declaration was granted.