£5m. Atlantique legal work claim too late

Roy Smith, who was once tenant of the hotel, actioned Carey Olsen over alleged failings by the advocates in representing him after it was taken over by new owners.

Carey Olsen said that the case was out of time since in its terms it is stated that any claim against the firm for loss, damage or liability arising from or connected to its legal services needed to be made either within three years of the date of the work being performed or from the date of termination of the services.

The law firm said that Mr Smith’s allegations related to a period between 11 June and 12 July 2012, but his first action against the firm was not tabled until January 2018 and it was therefore out of time.

Richard McMahon, when he was still Deputy Bailiff, heard the claim in the Royal Court in October 2019, and published his judgment just over a year later.

He opened his detailed verdict by apologising for the time it had taken, which he said he had not anticipated.

‘Events have rather overtaken me since last autumn, including, but not limited to, the consequences of managing court business through the early months of the pandemic earlier this year, as well as moving between judicial offices and everything that has entailed,’ he wrote.

He said he had a considerable degree of sympathy for Mr Smith, since it was stated that this avenue was ‘his sole remaining cause of action to recoup what he has lost from the events leading up to and including the fire at the L’Atlantique in 2012’.

Mr Smith had contended that the situation in which he found himself was avoidable, had he received different legal advice.

‘Looked at in the broadest sense, it strikes me that he has perhaps spent too much time and effort fighting battles he would have been better advised to realise were already without realistic prospects,’ said Mr McMahon. ‘The position in which he now finds himself is, therefore, largely of his own making.’

Had Mr Smith started this action by mid-2015, the law firm would not have been able to rely on the specific clause in its terms.

‘However, by the time a letter before action was sent, his claim was already out of time,’ said Mr McMahon.

‘It does not matter that this was not raised in correspondence at the time.

‘However much sympathy I have with the plaintiff, it cannot displace the legal position.’

Mr Smith accepted that he signed the terms of business.

‘He will rue the fact that he did not check the position when he should have done,’ said Mr McMahon.

‘As someone who has been litigating over the events of the summer of 2012 for years, the decision not to go to the source material available much earlier will inevitably be a difficult one for the plaintiff to accept, but that really is where the root of his problem lies.

‘Clause 14(c) of its terms of business means that the plaintiff was out of time when he began this action. Accordingly, the action is now dismissed.’

If no application was made by either party within two weeks, Mr McMahon said he was minded to order that Mr Smith pay Carey Olsen’s costs.