In Higgins & Ors v ERC Accountants & Business Advisers Ltd the Claimant had failed to validly serve a claim form with their claim.
The Claimant’s solicitors argued that the defendants were taking advantage of the mistake that had been made.
Judge Pelling QC held that the mistake of not serving the claim form was not a trivial and described it as the most basic step in ligation. Judge Pelling rejected the argument that the defendant solicitors should have pointed out the mistake and were under no duty to correct the error. In his view, had they pointed out the error they would be failing their duty to their client by failing to use the lack of a claim form as a defence. The overriding principle to take from this case is that a party is very unlikely to obtain relief from a procedural error on the argument that the other side should have pointed it out.
The Judge did not look kindly on the Claimant’s “negligent or incompetent error” and therefore did not grant relief to permit retrospective alternative service of the claim form or make an order dispensing with service.