Counsel for the respondent was on her feet at once, telling me that her client had been given short notice of an application listed for that Monday morning. The applicant's solicitor had delivered the notice by hand on the Thursday before, well before the afternoon cut off, had counted three days back from the hearing and had entered the date in his diary with care. I heard versions of that exchange more often than I kept count of, and whether the application went ahead turned on prejudice, which is a separate question.
The rule he was working from requires at least three days' notice, and the rules count a period of days in clear days, which leaves out both the day of service and the day of the hearing. For a period of five days or less they also leave out Saturdays, Sundays and bank holidays. Counted that way, the three clear days before a Monday hearing are the Wednesday, Thursday and Friday of the week before, so the notice had to be served by the Tuesday. He had counted Friday, Saturday and Sunday. His diary held the date exactly as he had worked it out, a faithful record of an answer two days adrift.
The diary was never the failure. It recorded what it was told, and the error went in with the same authority as a correct date. A supervisor who looked at the file later opened the diary, saw a date and moved on, so the second check copied the first.
Where the counting goes wrong
Clear days against calendar days was the commonest, because the instinct to count back from the hearing runs against the rule. A period ending on a weekend or bank holiday caused the next most trouble. The rules carry a deadline forward to the next day the court office is open where the act is one done at the court office, and a fee earner who brings that habit to service on the other side finishes a day late with a diary entry that looks well reasoned.
Deemed service moves the start of a period, and the deemed date is the only one the rules recognise. A document sent by first class post counts as served on the second day after posting if that is a business day, and otherwise on the next business day. An email sent after the afternoon cut off counts as served on the next business day, and a document left at an office after that hour is treated the same way. The traps run in both directions. Count your opponent's time from the day you posted, and you ask for judgment in default before the period has run, and a judgment entered early is set aside as of right. Count your own time from the day a delayed letter reached you, and you answer late a document the rules served two days before it arrived.
Then there is the period that runs from the wrong event altogether. Time for a defence runs from service of the particulars of claim, and where the particulars follow the claim form separately, a date counted from the claim form starts from an event the rule does not name.
Writing the working beside the date
The practice that stops this costs nothing. Beside every derived date, record the rule or the paragraph of the order it comes from, the event that started the period and the date of that event, the method of counting, and the name of the person who did the count. That note takes a minute and turns the date from an assertion into a calculation somebody else can test.
The second check then has to recompute rather than read. A supervisor who takes the note and works the period again from the trigger event, before looking at the answer, will catch the clear days error and the wrong starting event. One who reads the diary and agrees with it catches nothing, because the diary has never been wrong about what it was told.
Bracton is built around that note. On the platform, the engine reads the file, finds the trigger, applies the rule and writes the date with its arithmetic on the entry, working from the Civil Procedure Rules and the practice directions, which are checked weekly for a changed edition, so a supervisor reads the trigger, the rule and the count rather than a bare date. A firm contracted elsewhere takes the assistant on its own, connected to LEAP, Clio, Proclaim or another system through the interface that system provides. It reads every live file overnight and raises the dates it finds wanting, and whatever it writes waits for a fee earner to approve. Through another system it sees what that interface exposes, which we tell you at proposal.
The fairest test is your own files. Bring a handful of live matters with orders and served applications on them, and we will run the software across them and set each period, counted afresh from its trigger, against your diary, a free hour that starts when you book a client account review.