When your litigation solicitor misses a deadline: steps to take and how to recover your loss

Litigation depends on strict deadlines. A missed deadline can be far more than an administrative error. It can expose a client to a default judgment, prevent important evidence from being used or cause a claim or defence to be struck out entirely. If the error resulted from your solicitor’s action or inaction, you may have a professional negligence claim.

Common deadlines solicitors may miss

Service of the claim form and particulars of claim

A solicitor acting for a claimant must ensure both the issue (starting the court process) and service (delivering the documents to the opponent) of proceedings are completed correctly. In England and Wales, a claim form generally needs to be served within four months of issue. Late or defective service can cause the claim form to expire or be struck out.

Where particulars of claim are served separately, they are generally due within 14 days of the claim form and cannot be served beyond the last date for serving the claim form. Issuing proceedings in time is not enough if the subsequent steps are missed.

For more information on missed limitation dates, see Matthew Deem’s article.

Missed defence deadlines, default judgment and unless orders

For defendants, acknowledgment of service and defence deadlines are critical. Missing the defence deadline may allow the claimant to obtain a default judgment without the merits of the dispute being fully considered.

If a defence is filed and the case proceeds, a party that fails to comply with the court’s directions or Civil Procedure Rules may be subject to an unless order. This gives the party a final opportunity to take a specified step, with an automatic consequence if the deadline is missed. Non-compliance may result in a claim, defence or part of a case being struck out.

A solicitor who fails to comply with such an order may seriously prejudice their client, making the case harder or impossible to pursue.

Witness evidence, expert evidence and costs budgets

Court directions commonly set deadlines for witness statements and expert reports. If evidence is not served in time, a party may be unable to rely on it or call the witness or expert at trial. The effect can be catastrophic, particularly where the evidence addresses liability, causation, valuation or a technical issue central to the case. A case may be won or lost without this evidence.

If the parties are required to file costs budgets, this creates another potential risk. Failure to file and serve a budget on time can restrict the costs that may be recovered, leaving the defaulting party to fund substantial litigation costs even if they ultimately succeed.

When may the solicitor be negligent?

Not every adverse procedural outcome amounts to negligence. The duty owed by a solicitor to a client depends on the circumstances, including the client’s instructions and whether the solicitor had the information and funds needed to act.

However, straightforward failures such as missing a court-ordered date, allowing default judgment to be entered or failing to progress litigation with reasonable diligence are all likely to amount to a breach of duty.

Solicitor negligence: steps to take

Consider a loss of chance claim

Where a solicitor’s negligence causes a claim to be lost, the client’s loss typically falls into three categories:

• Legal costs payable to the opponent if the claim is dismissed or struck out
• Legal costs already incurred that can no longer be recovered from the opponent
• The loss of the underlying claim itself.

Damages for the lost litigation are usually assessed as a ‘loss of a chance.’ However, the court does not simply award the full value of the original claim. Instead, it considers the prospects of achieving a better result had the solicitor acted competently.

This is often a hotly contested issue. The case of Mount v Barker Austin (A Firm) [1998] remains a helpful authority for claimants, as it allows the starting point to be that the negligent solicitor must show that, despite its prior involvement, the claim was nevertheless worthless.

For more about loss of chance, see Laura Bufton’s article.

Seek independent advice

Where the missed deadline was the solicitor’s own error, there will almost certainly be a conflict between protecting the client’s position in the ongoing proceedings and the solicitor’s own interests.

Under Solicitors Regulation Authority guidance, the solicitor should immediately inform the client of what has happened, explain any urgent consequences and recommend that the client obtains independent legal advice. The solicitor cannot objectively advise on their own error. A new solicitor should assess the position and advise on the steps needed without delay.

Remember your duty to mitigate: early assessment matters

A claimant cannot recover damages for losses they could have reasonably avoided. This is known as the duty to mitigate. While courts are generally sympathetic to claimants on this issue, recognising that the defendant created the problem in the first place, a negligent solicitor’s insurer will likely argue that the claimant failed to take reasonable steps to limit their loss and should recover less as a result.

A thorough early assessment of the potential negligence claim is therefore important. A client who acts promptly on independent legal advice will have strong grounds to argue that they acted reasonably. By contrast, delays in seeking advice or unreasonable decisions taken without proper guidance could later be used to reduce any damages award.

What to do if you suspect solicitor negligence

If you believe your solicitor may have missed a deadline or made an error that has affected your case, acting quickly is essential. As outlined above, your solicitor should inform you of the issue, but if they don’t, you should raise it with them.