Molly Ball & Anor v JMJ Solicitors LLP

The court may extend time for service of particulars of claim under CPR 3.1(2)(a), applying the overriding objective. The strict regime governing extensions for claim forms does not apply. The central consideration is the prejudice caused by the delay, together with all other relevant circumstances. A claimant may reasonably be allowed to plead after receiving documents to which the claimant has a proprietary entitlement, where those documents may inform or require amendment of the pleaded case. A solicitor’s client file belongs to the client to the extent that it comprises client documents, and relevance-based disclosure is not an answer to a proprietary entitlement to delivery of the file.

The claimants, former clients of the defendant solicitors, brought a professional negligence and breach of contract claim concerning advice and legal services provided in connection with earlier building-defect litigation. They applied for delivery up of missing parts of their client file and an extension of time for service of particulars of claim until the file had been provided.

The defendant accepted that documents forming part of the client file were missing, but argued that the claimants had sufficient knowledge and documents to plead their case and could rely on later disclosure. The issues were whether further production should be ordered and whether the claimants should be required to plead before receiving the complete file.

1. Client file. The claimants’ entitlement to the client file was proprietary and not confined by relevance. The defendant had not explained its file systems or searches sufficiently to establish that its searches were complete. It was ordered to provide the identified missing documents and, for any documents not provided, to serve a witness statement explaining the searches and the reasons for non-production.
2. Particulars of claim. The claimants could articulate a claim, but could not necessarily plead it in final form before receiving documents underlying or potentially adding to their allegations. Although facts rather than evidence are pleaded, the evidence in support of a claim provides the foundation for the pleaded case. The claimants were reasonably entitled to have the complete file reviewed before finalising their pleading. Time for service of the particulars was therefore extended until a period after compliance with the production order.
3. Discretion. The power arose under CPR 3.1(2)(a), exercised in accordance with the overriding objective. The court considered all relevant factors without giving special weight to the reason for the extension. The relevant prejudice was the delay caused by the extension, not pre-existing limitation prejudice. In any event, a further 28-day extension would have been granted: the claim form had been served in time, the extension was short, the claimants had sought consent before the deadline, the request was not unreasonable, delay was minimal, and refusal would substantially prejudice a claim valued at over £500,000.