{"id":569404,"date":"2026-04-15T15:34:10","date_gmt":"2026-04-15T13:34:10","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/lynda-joseph-v-mcfaddens-llp-2\/"},"modified":"2026-04-15T15:34:10","modified_gmt":"2026-04-15T13:34:10","slug":"lynda-joseph-v-mcfaddens-llp-2","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/ru\/jurisprudences\/lynda-joseph-v-mcfaddens-llp-2\/","title":{"rendered":"Lynda Joseph v McFaddens LLP"},"content":{"rendered":"
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1. MR JUSTICE RICHARDS: Some three months after I gave an oral judgment in this appeal, I have been asked to settle a transcript of that judgment. I have not been asked to settle a transcript of my ruling, at the beginning of the hearing, to refuse the Appellant permission to rely on new evidence in the appeal. 2. The Appellant, Ms Joseph, appeals with the permission of Joanna\u00a0Smith\u00a0J against the order of Deputy Master Raeburn (the Judge) of 7\u00a0October\u00a02024 following a judgment (the Judgment) given on 1 October 2024. By that order, the Judge refused the Appellant\u2019s application for a\u00a0retrospective extension of time in which to serve her Particulars of Claim which had been served three\u00a0days late. I\u00a0am grateful indeed to Mr\u00a0O\u2019Donoghue, and I\u00a0am sure the Appellant is as well, for acting pro bono in this matter. 3. The single ground of appeal on which the Appellant has permission to appeal is that the Judge should have concluded that the three-day delay in serving the Particulars of Claim was \u201cminor and inconsequential\u201d or neither \u201cserious nor significant\u201d. 4. The new evidence that I refused to admit consisted of rulings and correspondence with the Solicitors\u2019 Disciplinary Tribunal in 1995 and then in 2019 involving solicitors involved in the Respondent\u2019s practice. I concluded that material was of insufficient relevance to this appeal, given that single ground of appeal, to justify admitting it. Background 5. The Respondent is a\u00a0firm of solicitors. On 18\u00a0August\u00a02017, the Appellant borrowed money under a\u00a0loan facility agreement (the Facility Agreement) that was secured by a second legal charge over a\u00a0property that she owned in London (the Property). The Respondent acted for the Appellant in connection with the Facility Agreement. The Appellant defaulted on the Facility Agreement and the lender brought proceedings seeking both a money judgment and possession of the Property on enforcement of its security. On 20\u00a0June\u00a02018, the lender obtained a money judgment and a possession order against the Appellant. The Appellant considers that the Respondent was professionally negligent in acting for her in relation to the negotiation and execution of the Facility Agreement. 6. While she was a\u00a0litigant in person, the Appellant issued professional negligence proceedings against the Respondent on 24\u00a0June\u00a02019. Those were struck out on 7\u00a0August\u00a02019 on the basis that the Appellant had not shown reasonable grounds for bringing the claim. 7. In\u00a0October\u00a02019, the Appellant sought injunctive relief in the High Court precluding the Respondent from disbursing the proceeds of sale of the Property. That application was refused with costs on 25\u00a0October\u00a02019 on the grounds that the disbursement had already taken place. 8. On 28\u00a0June\u00a02023, the Appellant issued a further\u00a0professional negligence claim against the Respondent. By then, the limitation clock was ticking. The Appellant considered that the applicable limitation period would expire on 18\u00a0August\u00a02023, that is, six\u00a0years after she entered into the Facility Agreement. As will be seen, that was the position she took in her witness statement in support of her application for an\u00a0extension of time which was before the Judge. It was also the position that Ms Melenik Forde, the Respondent\u2019s solicitor, took in her witness statement that was put before the Judge. No argument is advanced today to the effect that the limitation period expired any later than 18 August 2023. 9. The Appellant served that claim form on the Respondent on 18\u00a0October\u00a02023. She accompanied it with a\u00a0document which she invited the Respondent to treat as a\u00a0letter before action (the LBA), even though unlike a\u00a0traditional letter before action it was served at the same time as the claim form rather than before it. The LBA explained the case against the Respondent in some detail. Mr\u00a0O\u2019Donoghue said in his submissions that the Respondent could not have asked for more in terms of a\u00a0preview of what the case was. That is not quite right because the LBA did not deal with everything that was later set out in the Particulars of Claim although it certainly dealt with much of it. For example, the Particulars of Claim pleaded a claim for exemplary damages which was not contained in the LBA. The Particulars of Claim, unlike the LBA, pleaded that the Respondent failed to advise the Appellant of a defence to possession proceedings in relation to the Property. Unlike the Particulars of Claim, the LBA was not verified with a statement of truth. 10. The Appellant did not serve the Particulars of Claim with the claim form. Rather, the Particulars of Claim were posted by Royal Mail special delivery on Monday 30\u00a0October\u00a02023 and received by the Respondent on 1\u00a0November\u00a02023 ([13(ii)] of the Judgment). 11. The Appellant therefore fell into what Mr\u00a0Broomfield described as the "bear trap" of CPR\u00a07.4(2). The Appellant did not have 14\u00a0days following service of the claim form to serve her Particulars of Claim. Rather, the Particulars of Claim needed to be served by the latest time for serving the claim form. Before the Judge, there was some argument as to whether the Particulars of Claim were in fact served in time. However, the Judge\u2019s conclusion, which is not challenged in this appeal, was that it was necessary to post the Particulars of Claim (and so take the \u201cstep required\u201d by CPR 7.5(1)) by midnight on 28\u00a0October. However, the Appellant did not post the Particulars of Claim until 30\u00a0October\u00a02023. Therefore, the Judge proceeded on the basis that the Particulars of Claim were served three\u00a0days late. Mr\u00a0O\u2019Donoghue, while submitting that a\u00a0case could perhaps be made for the\u00a0proposition that the Particulars of Claim were served just one day late, did not seek to challenge the Judge\u2019s conclusion that they were served three\u00a0days late. Both parties therefore agree that the appeal should proceed on the basis that the Particulars of Claim were served three days late. 12. The Appellant\u2019s case on appeal is, of course, that the Judge should have granted an extension of time for service of the Particulars of Claim. However, she does not challenge the Judge\u2019s conclusion at [47] of the Judgment as to the consequences if no such extension was granted namely that the court would not have jurisdiction to try the claim because Particulars of Claim were not served during the period of validity of the claim form. 13. Given that unchallenged conclusion, it is common ground that, unless the Appellant obtained an extension of time either from the Judge or following this appeal, she would need to issue a new claim form. Given that both parties are proceeding on the basis that the limitation period expired on 18 August 2023 (see paragraph \u200e8 above) any such new claim would have been statute-barred both at the time of the hearing before the Judge and now. The Judge\u2019s decision 14. I do not need to deal with the Appellant\u2019s arguments before the Judge that the Particulars of Claim were served in time since all parties agree that the appeal should proceed on the basis that they were served three days late. In this section, therefore, I deal with the Judge\u2019s determination of the application for a\u00a0retrospective extension of time. It is common ground that that application fell to be considered by reference to the three-stage analysis applied to relief from sanctions cases by Denton and others v White and others [2014] EWCA Civ 906 (Denton) (see the judgment of the Court of Appeal in Dinjan Hysaj\u00a0v\u00a0Secretary of State for the Home Department (and related appeals) [2014]\u00a0EWCA\u00a0Civ\u00a01633). 15. The Judge first concluded that the breach of the rules, the\u00a0three-day delay, was \u201cserious and significant\u201d. He had been asked to conclude by reference to the judgment of the High Court in Viridor Waste Management Ltd\u00a0v\u00a0Veolia ES Ltd [2015] EWHC 2321 (Viridor) that it was necessary to consider the seriousness and significance by reference to the purpose of service requirements so that there was \u201cno harm and no foul\u201d because ultimately the Particulars of Claim came to the Respondent\u2019s attention in short order. The Judge declined that invitation and said at [41] of the Judgment: "In my judgment, the breach clearly is serious and significant: (i) the Particulars of Claim were only served toward the end of the period of\u00a0validity; (ii) although the claim had been intimated by the Claimant, the Defendant was entitled to understand within the 4 month period set in the Civil Procedure Rules what that claim actually comprised of." 16. Having concluded that there was a\u00a0serious and significant breach, the Judge went on to conclude that there was no good reason for the breach. He also decided that in all the circumstances of the case, an\u00a0extension of time should not be granted, having made reference at [44] of the Judgment to the earlier proceedings and the Appellant\u2019s knowledge of the impending deadlines. 17. The Appellant has permission only to challenge the Judge\u2019s order on the grounds that he erred in finding that there was a\u00a0serious and significant breach. Accordingly, the Appellant can only challenge the Judge\u2019s analysis at the first Denton stage. 18. For its part, the Respondent has issued a\u00a0Respondent\u2019s Notice inviting the court to uphold the Judge\u2019s order for the reasons given in the Judgment or on alternative or additional grounds to the effect that the claim form was issued very close to the expiry of the limitation period and the failure to serve Particulars of Claim in time has now resulted in the claim being statute-barred. Therefore, by the Respondent\u2019s Notice, the Respondent invites the court to conclude that the breach was serious and significant for the purposes of the first limb of the Denton test because it has given rise to a\u00a0limitation defence and relief from sanctions would deprive the Respondent of the right to raise that defence. The approach I take to this appeal 19. When giving permission to appeal, Joanna Smith\u00a0J referred to the \u2018uphill task\u2019 that an\u00a0Appellant faces in challenging case management decisions such as this. That is a well-established principle set out in cases such as Walbrook Trustee (Jersey) Ltd [2008]\u00a0EWCA\u00a0Civ\u00a0427, in which Lawrence Collins LJ said at [33] that, in relation to discretionary case management decisions, a\u00a0superior court should not interfere if the judge has taken into account matters which should be taken into account and has left out of account matters which are irrelevant, unless the judge has reached a conclusion so plainly wrong as to take it outside the generous ambit of the available discretion. 20. In Al Saud v Apex Global Management Ltd and other [2014] UKSC 64, Lord Neuberger approved Lewison\u00a0LJ\u2019s formulation in Broughton\u00a0v\u00a0Kop Football (Cayman) Ltd [2012] EWCA Civ 1743 to the effect that an exercise of a case-management discretion is \u2018plainly wrong\u2019 if it is \u2018outside the generous ambit where reasonable decision-makers may disagree\u2019. The essence of the Appellant\u2019s arguments 21. The Appellant argues that, in determining that her breach was serious and significant, the Judge took into account irrelevant factors: a. It simply did not matter that service was effected towards the back end of validity of the claim form. CPR, she says, provides no \u2018sliding scale\u2019 such that waiting towards the end of the period of validity of a claim form is behaviour that attracts criticism by contrast, for example, with provisions relating to judicial review proceedings which must always be brought promptly. Leaving service until the last moment of the four-month window cannot of itself make a\u00a0short delay in service a\u00a0serious and significant breach. b. The Judge took into account an\u00a0irrelevant consideration when concluding that the Respondent was entitled to understand what the claim comprised of because the LBA had already put the Respondent on notice of the case against it. 22. The Appellant also argues that the Judge came to a\u00a0conclusion that was outside the range of reasonable opinions in the sense set out in paragraph \u200e20 above. She revives her argument, based on Viridor, about the purpose of the service rules arguing that just three\u00a0days\u2019 delay in serving the Particulars of Claim cannot amount to a serious and significant breach when after those three\u00a0days, the matter came to the attention of the Respondent. She also submits that the Judge was not entitled to conclude that the three-day delay was serious and significant when no hearing date was imperilled. More generally, the Appellant argues that the Judge was working backwards: he had reached his conclusions to the effect that he would not grant an\u00a0extension of time and was impermissibly seeking to justify that conclusion at the first stage\u00a0by deciding that there was a\u00a0serious and significant breach. Discussion What is a \u2018serious and significant\u2019 breach? 23. It matters greatly whether the Judge was entitled to categorise the breach as \u2018serious and significant\u2019. That is because if, at the first Denton stage, there is no serious and significant breach, then as was said in Denton itself, relief from sanctions will usually be granted so it will usually be unnecessary to spend much time on the second and third stages. It is appropriate, therefore, to start by considering what a\u00a0\u2018serious and significant\u2019 breach is as a\u00a0matter of law. 24. The first point to note is that determining what is \u2018serious and significant\u2019 necessarily involves an\u00a0evaluative conclusion. Reasonable decision-makers can, therefore, disagree as to whether a particular breach is serious and significant. 25. Seriousness and significance are not simply to be determined by reference to the length of a\u00a0delay in a\u00a0case like this. In Diriye\u00a0v\u00a0Bojaj & Anor [2020]\u00a0EWCA\u00a0Civ\u00a01400, Coulson\u00a0LJ said at [56] of his judgment: \u201856\u2026More generally, seriousness and significance can never be a\u00a0simple function of the period of default. It would be wrong in principle to suggest a\u00a0sort of sliding scale that automatically allowed defaults of, say, 2 or 3\u00a0days, but not defaults of, say, a\u00a0month. The period of default is a\u00a0factor to be considered when assessing seriousness and significance, but it is no more than that.\u2019 26. In a\u00a0similar vein, as [26] to [28] of Denton make clear, \u2018triviality\u2019 is not part of the test, even though it may be a\u00a0useful concept in considering seriousness and significance. The same paragraphs emphasise that a\u00a0default can be serious or significant even if like, for example, non-payment of court fees, it has no effect on the efficient running of the litigation between the parties. Paragraph 58 of Coulson LJ\u2019s judgment in Diriye emphasises that seriousness and significance cannot be gauged simply by asking whether a\u00a0hearing date is imperilled. He stated that \u2018\u2026the effect of the breach on litigation generally is just one way in which significance can be measured: it is not the only way.\u2019 27. That said, Denton notes that seriousness and significance should not be considered at least initially by reference to other unrelated failures that may have occurred in the past. At the first Denton stage it is necessary to concentrate on an\u00a0assessment of the seriousness and significance of the very breach in respect of which relief from sanctions is sought. The court might well wish to consider the defaulter\u2019s previous conduct in litigation (for example, if this is the latest in a\u00a0series of failures to comply) but that is best done at the third Denton stage\u00a0rather than the first. Analysis 28. The Appellant argues that the three-day delay is simply incapable of being serious and significant. She says that the Judge\u2019s conclusion to the contrary was outside the range of reasonable views that he could come to. I\u00a0do not agree with that. As the extracts from the judgments of Diriye and Denton to which I\u00a0have referred explain, seriousness and significance cannot be gauged only by reference to the length of the delay in serving the Particulars of Claim. 29. Nor do I\u00a0accept the Appellant\u2019s submission that the delay was incapable of being serious and significant because no hearing date was imperilled. That submission is at odds with the judgment of the Court\u00a0of\u00a0Appeal in Diriye. 30. The Appellant says that the Judge erred in applying a\u00a0\u2018sliding scale\u2019 at [42] of the Judgment, by criticising the Appellant for waiting until the end of the period of validity of the claim form before serving Particulars of Claim. However, I\u00a0agree with the Respondent that this point was not irrelevant. The Appellant\u2019s own witness evidence showed that she was aware of the deadline, knew that it was coming up and knew that she needed to serve Particulars of Claim by the appropriate deadline in order to avoid a limitation problem. An analysis of the Appellant\u2019s conduct in serving towards the end of the period is not irrelevant and indeed it was considered by the Supreme Court in Barton\u00a0v\u00a0Wright Hassall [2018]\u00a0UKSC\u00a012. In that case, it was said that: \u2018A person who courts disaster [by serving at the last minute] can have only a\u00a0very limited claim on the court\u2019s indulgence in an\u00a0application under CPR rule 6.15(2).\u2019 31. Now, that of course was not a\u00a0relief from sanction case or an\u00a0extension of time case. However, it does demonstrate that consideration of the Appellant\u2019s conduct, including the conduct in serving at an\u00a0end of the window of validity of the claim form, was not irrelevant. One can debate the weight that can be placed on that factor but it is not an\u00a0irrelevant factor. 32. The Appellant\u2019s point based on Viridor was pressed before the Judge and was mentioned in Mr\u00a0O\u2019Donoghue\u2019s skeleton argument. However, it was not really pressed in his oral submissions. I\u00a0agree with Mr\u00a0Broomfield\u2019s submission that the aspect of Viridor on which the Appellant relied was dealing with questions touching on the method of service. The purpose of service is to bring documents to a recipient\u2019s attention. Therefore, if someone uses the wrong method but the document still comes to the recipient\u2019s attention, the court might well decide not to impose a\u00a0sanction or to impose a\u00a0limited sanction. However here the question is whether the failure to serve Particulars of Claim in time was serious and significant. The Judge was not bound by Viridor to conclude that it was neither serious nor significant simply because the Particulars of Claim came to the Respondent\u2019s attention. 33. The Appellant criticises the Judge\u2019s reference at [41] of the Judgment to the Defendant being \u2018entitled to understand within the 4 month period [of validity of the claim form]\u2026 what the claim actually comprised of\u2019. 34. I\u00a0tend to agree that, on its own, this was a\u00a0relatively slender consideration as the Respondent did have an\u00a0indication of at very least a\u00a0good part of the Appellant\u2019s case in the LBA. However, I\u00a0do not agree that this is a completely irrelevant consideration. As I\u00a0explained earlier, the LBA is not said to have mentioned every point that was ultimately pleaded in the Particulars of Claim. 35. Ultimately the Judge alighted on two factors, at [41] of the Judgment, as demonstrating that the breach was serious and significant: (i) the fact that the Particulars of Claim were only served towards the end of the period of validity of the claim form and (ii) the Defendant\u2019s entitlement to understand the claim against it earlier. 36. I am not sure that I would myself have singled out those two factors, but as I have explained they were not irrelevant considerations. Overall, I consider the Judge\u2019s reasoning was a little compressed. He was entitled to conclude that CPR imposes a\u00a0deadline by which a\u00a0claim form and Particulars of Claim must be served. He was also entitled to observe that Particulars of Claim are a\u00a0formal means of drawing a\u00a0claim to a\u00a0recipient\u2019s attention which can be distinguished from other less formal means such as the LBA. The Judge\u2019s point, which could have been spelt out more, was that failure to complete the formal process in time meant that proceedings had not been brought to the recipient\u2019s attention in the kind of formal way necessary to engage the court\u2019s jurisdiction. 37. I also consider that the Judge must have been aware of the wider background going beyond the two factors that he mentioned. At [14] of the Judgment, he referred to the witness statements of the Appellant and of Ms Forde (the Respondent\u2019s solicitor). He should be taken to have read them and so as understanding that the Appellant\u2019s claim was running up against the limitation period. The Appellant had said as much at [6] and [31] of her witness statement. Ms Forde\u2019s witness statement positively averred (at [13.4]) that the expiration of the limitation period was a\u00a0reason not to grant an\u00a0extension of time. 38. The limitation issue was a highly relevant factor. Although the Particulars of Claim were served only three days late, the effect of that three-day delay was highly significant. The Appellant\u2019s very breach of CPR meant that the claim had in all likelihood become statute barred (see paragraph \u200e13 above). If the Judge had allowed the Appellant\u2019s application for an extension of time, the Respondent would be deprived of a strong, and perhaps determinative, limitation defence. 39. In those circumstances, the Judge was quite entitled to conclude that the Appellant\u2019s failure to bring the proceedings to the Respondent\u2019s attention in the necessary formal way had a particular resonance that put it outside the ordinary run of three-day delays. The Judge was entitled to conclude that the breach was both serious and significant. 40. Moreover, the Judge was also aware of the fact that the Appellant had not served the Particulars of Claim for a\u00a0long period after the claim form was issued. Her witness statement made clear that she was aware of the deadline for serving the Particulars of Claim and of the significance of the expiry of the limitation period. The Judge was entitled to consider that these matters also pointed to the breach being serious and significant. I do not accept the Appellant\u2019s argument that this involved the Judge considering previous unrelated breaches at the first Denton stage (see paragraph \u200e27 above). It was part of the assessment of whether the very breach for which relief from sanctions was sought was itself serious or significant. 41. The Judge should be taken to have all of these factors in mind. I\u00a0do acknowledge that he did not raise limitation expressly in his reasoning at [41] of the Judgment. However, the limitation issue could only reinforce the Judge\u2019s point as to the significance of the breach. 42. Even if the Judge did not, contrary to my view, have limitation in mind, that issue provides a further reason to support the Judge\u2019s conclusion for the reasons that I have given in paragraph \u200e38 above. I would, therefore, accept the arguments advanced in the Respondent\u2019s Notice. That is not to say that a delay in service that results in the limitation period being exceeded is incapable of being the subject of a successful claim for an extension of time. Each case will turn on its facts. However, this appeal is brought on the limited basis that the Judge simply was not even entitled to conclude that such a breach in this case was serious and significant. I have reached the clear conclusion that this ground of appeal should fail. 43. I\u00a0am going to dismiss the appeal for the reasons that I\u00a0have given. I\u00a0conclude by thanking Mr\u00a0O\u2019Donoghue again for his efforts. He has done the best that he could with the case he was given to argue. Epiq Europe Ltd hereby certify that the above is an\u00a0accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk This transcript has been approved by the Judge<\/p>\n<\/div>\n

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1. MR JUSTICE RICHARDS: Some three months after I gave an oral judgment in this appeal, I have been asked to settle a transcript of that judgment. I have not been asked to settle a transcript of my ruling, at the beginning of the hearing, to refuse the Appellant permission to rely on new evidence in the appeal. 2. The…<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_crdt_document":""},"kji_country":[7608],"kji_court":[8037],"kji_chamber":[],"kji_year":[8463],"kji_subject":[7724],"kji_keyword":[7633,7623,7621,12090,7634],"kji_language":[7611],"class_list":["post-569404","kji_decision","type-kji_decision","status-publish","hentry","kji_country-royaume-uni","kji_court-chancery-appeals","kji_year-8463","kji_subject-civil","kji_keyword-appellant","kji_keyword-claim","kji_keyword-judge","kji_keyword-particulars","kji_keyword-respondent","kji_language-anglais"],"yoast_head":"\nLynda Joseph v McFaddens LLP - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/ru\/jurisprudences\/lynda-joseph-v-mcfaddens-llp-2\/\" \/>\n<meta property=\"og:locale\" content=\"ru_RU\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lynda Joseph v McFaddens LLP\" \/>\n<meta property=\"og:description\" content=\"1. MR JUSTICE RICHARDS: Some three months after I gave an oral judgment in this appeal, I have been asked to settle a transcript of that judgment. I have not been asked to settle a transcript of my ruling, at the beginning of the hearing, to refuse the Appellant permission to rely on new evidence in the appeal. 2. 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MR JUSTICE RICHARDS: Some three months after I gave an oral judgment in this appeal, I have been asked to settle a transcript of that judgment. I have not been asked to settle a transcript of my ruling, at the beginning of the hearing, to refuse the Appellant permission to rely on new evidence in the appeal. 2. 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