This guide is for people whose solicitor missed a deadline that mattered: a limitation period that ran out before a claim was issued, a court order that was not complied with so the claim was struck out, or a claim form that was never served in time. It explains the deadlines themselves, whether a struck-out claim can be revived, and what a client has to prove in a negligence claim against the solicitor. For the wider picture, see the series overview.
The three classic missed deadlines
A limitation period expires
A limitation period is the statutory deadline for starting a court claim. Under the Limitation Act 1980, a claim in simple contract (one not made by deed) cannot be brought more than six years from the date the cause of action accrued (section 5), and the same six-year period applies to most claims in tort (section 2). If a solicitor was instructed to bring, say, a claim for an unpaid invoice or a breach of a commercial contract, and did not issue it before the deadline, the other side has a complete defence. (Different periods can apply to documents made by deed, such as most leases: twelve years under section 8, though rent arrears are limited to six years by section 19.)
People sometimes hear that the court can extend a limitation period. Section 33 of the Act does give the court a discretion to let a claim proceed out of time, but it is confined to the categories of claim the section itself lists. It does not reach contract, commercial or property claims. For those, an expired limitation period is usually the end of the original claim. (Claims for provision from an estate under the Inheritance (Provision for Family and Dependants) Act 1975 have their own rule allowing a late claim with the court's permission.)
A claim form is not served in time
Issuing a claim form starts proceedings, but it must then be served (formally delivered) on the defendant. Under CPR 7.5(1), where the claim form is served in England and Wales, the claimant must take the required step for the chosen method of service (for example posting it, delivering it, or sending the email) "before 12.00 midnight on the calendar day four months after the date of issue of the claim form". The period is six months where the claim form is served out of the jurisdiction (CPR 7.5(2)).
An extension can be sought under CPR 7.6. The general rule is that the application must be made within the four months (rule 7.6(2)). If it is made afterwards, the court may grant it only if the court itself failed to serve the claim form, or the claimant "has taken all reasonable steps to comply with rule 7.5 but has been unable to do so", and in either case the claimant has acted promptly (rule 7.6(3)). If the claim form was issued close to the end of the limitation period, failing to serve it in time can mean the claim cannot be started again.
A court deadline is missed and the claim is struck out
Once proceedings are under way, the court sets a timetable. Under CPR 3.4(2)(c) the court may strike out (dismiss) a statement of case (the written claim or defence) for "a failure to comply with a rule, practice direction or court order". Some orders state what will happen if a deadline is missed. Under CPR 3.8(1), such a sanction "has effect unless the party in default applies for and obtains relief from the sanction". Unless the court orders otherwise, the parties can extend that kind of deadline by prior written agreement for up to 28 days, provided no hearing date is put at risk (CPR 3.8(4)).
Why a struck-out claim is not always lost for good
A party in default can apply for relief from sanctions under CPR 3.9. The court considers all the circumstances, including the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with rules, practice directions and orders. The application must be supported by evidence (CPR 3.9(2)).
In Denton v TH White Ltd [2014] EWCA Civ 906, the Court of Appeal said a judge should approach the application in three stages:
- Identify and assess the seriousness and significance of the failure. If it is neither serious nor significant, the court is unlikely to need to spend much time on the other two stages.
- Consider why the default occurred.
- Evaluate all the circumstances of the case, giving particular weight to the two factors in the rule.
The court added that "the more serious or significant the breach the less likely it is that relief will be granted unless there is a good reason for it", and that the promptness of the application is a relevant circumstance.
This matters for a negligence claim in two ways. First, if relief is realistically available, the original claim may not be lost at all, and the question becomes what the missed deadline actually cost: the claim may continue, with the dispute about the solicitor's mistake turning on things such as wasted costs and delay. Second, where relief is refused or not sought, the lost claim itself becomes the loss.
When the loss happens
The date the client suffers loss matters because it usually starts the clock on the client's own claim against the solicitor. It is not always the date of the strike-out. In Holt v Holley & Steer Solicitors [2020] EWCA Civ 851, a solicitor negligence claim arising from divorce financial remedy proceedings, the Court of Appeal explained the earlier decision in Khan v R M Falvey & Co. Where proceedings were later dismissed for delay, the client could have suffered damage earlier, once there was "an inevitability (or at least a very serious risk)" of dismissal; the cause of action could accrue "when the action became vulnerable to dismissal". A client who waits for the formal strike-out before counting can be later than they think. The time limits for suing a solicitor are covered in solicitor negligence time limits.
What the client has to prove
A negligence claim against a solicitor needs a duty, a breach of it, and loss caused by the breach. In missed-deadline cases the duty and the breach are often not seriously disputed: a solicitor who is instructed to bring a claim and lets it become time-barred has rarely got an answer on breach. The argument is almost always about loss.
The client cannot simply say the original claim was for a certain sum and claim that sum. Nobody knows how the original case would have ended. Where the client already had a claim under way which was then lost, the courts treat it as a lost chance:
- the client must show the lost claim had a real and substantial, rather than merely negligible, prospect of success;
- the solicitor carries an evidential burden if it says the claim was of no value to the client;
- the court then evaluates the prospects, rather than holding a full 'trial within a trial' (a re-run of the original case inside the negligence case).
Where the outcome also depends on what the client would have done, for example whether they would have issued a claim at all, the client must prove that on the balance of probabilities. How the courts put a figure on a lost claim, and what is deducted, is explained in loss of a chance.
Before any claim is issued against the solicitor, the Professional Negligence Pre-Action Protocol sets out the steps the parties are expected to follow.
What a solicitor will want from you
- The engagement letter and any later instructions to the first solicitor.
- The date the original claim arose, and any date the first solicitor gave you as the deadline.
- The claim form and its issue date, and any evidence of when and how it was served.
- Court orders in the original case, especially any order saying what would happen if a step was missed.
- Any strike-out order, any application for relief from sanctions and the outcome.
- Correspondence with the first solicitor about the deadline and what went wrong.
- The documents and evidence for the original claim, and any advice you were given on its merits.
- Information about the other side in the original claim, including whether it is still trading.
This guide is general information about the law of England and Wales. It is not legal advice. Whether a struck-out claim can be revived, and when your own time limit against the solicitor started, depends on the dates and documents in your case.
Frequently asked
My solicitor missed a court deadline and my claim was struck out. Is it definitely over?
Not necessarily. Under CPR 3.9 the court can grant relief from a sanction such as a strike-out, applying the three-stage test in Denton v TH White. The more serious the breach and the weaker the reason for it, the less likely relief is, and delay in applying counts against it.
What is the deadline for serving a claim form?
For service within England and Wales, CPR 7.5 requires the relevant step to be taken before midnight on the calendar day four months after the claim form was issued. An extension applied for after that period has ended can be granted only in narrow circumstances set out in CPR 7.6(3).
If my solicitor let the limitation period expire, can the court just extend it?
For contract, commercial and property claims, generally no. The court's discretion under section 33 of the Limitation Act 1980 to disapply a time limit is confined to the categories of claim that section covers, and ordinary civil claims are outside it.
Do I have to prove I would have won the original case?
Not in the all-or-nothing sense. Where a pending claim was lost, the client must show it had a real and substantial rather than merely negligible prospect of success. The court then evaluates those prospects rather than re-running the original trial.