Deadline, Service and a Missing Affidavit
You are a paralegal in a firm handling a civil claim. A defence and counterclaim were served on your firm on a Friday. The rules give 14 days to file a defence to the counterclaim. The responsible advocate is on annual leave for 10 days and has left no instructions. On day 12, you discover that the supporting affidavit for the defence to counterclaim has not been sworn - the deponent, the client's director, is travelling and cannot swear before day 15. The court registry closes at 4:00 p.m. and filing is now done through the e-filing portal, which requires a sworn affidavit to accept the document. The client's director can be reached by phone but not in person.
1. What are your options on day 12, and what should you do first?
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First: establish the exact deadline and whether day 14 falls on a weekend or public holiday (which may extend it). Record the calculation.
Options:
- Contact the advocate - leave is not a reason to let a deadline pass without escalation. Report the position and seek instructions.
- Contact the director to arrange swearing before a commissioner for oaths at his location, or by video where permitted, before day 14.
- File within time without the affidavit if the portal permits, and regularise later - but check whether an unsworn pleading will be rejected or struck out.
- Apply for extension of time before the deadline expires, with reasons.
Recommended: Escalate to the advocate and the director simultaneously, and prepare an application for extension as a fallback. Do not simply wait and miss the deadline.
2. The advocate cannot be reached and the director cannot swear in time. What is the professional risk of filing late, and how should it be managed?
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Risks of late filing:
- The defence to counterclaim may be struck out or deemed not filed, exposing the client to judgment on the counterclaim.
- A costs order against the client or the firm.
- A professional negligence and conduct exposure for the firm.
Management:
- File as soon as possible and simultaneously apply for extension of time or for leave to file out of time, explaining the reason candidly.
- Notify the client in writing of the position and the steps being taken.
- Record the escalation attempts - the advocate's absence, the director's unavailability, the portal requirement.
- Do not backdate or misrepresent the date of swearing or filing.
Reasoning: A paralegal cannot cure a missed deadline alone, but can ensure the firm acts promptly, honestly and transparently, and that the client is not left in the dark. Concealment converts a delay into a conduct matter.