Court of Appeal confirms that a solicitor has no duty to alert another party to defective service

The Court of Appeal has confirmed that a solicitor’s duty to the court does not create an obligation to draw another party’s attention to a defect in service.

The background

In Woodward & another v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985, Mr Woodwardʼs solicitors emailed and posted the claim form to Phoenixʼs solicitors two days before the period for valid service was due to expire. The limitation period had expired several months earlier. Phoenixʼs solicitors had notified Mr Woodwardʼs solicitors that they were acting, but had not confirmed that they were authorised to accept service. Phoenix instructed its solicitors to wait until the period for valid service had expired before notifying Mr Woodwardʼs solicitors that service was defective because they were not authorised to accept it. Phoenix then applied to strike out the claim. Mr Woodwardʼs solicitors cross applied for an order either retrospectively validating service or declaring that it had been valid in the first place.

The Supreme Court had held in Barton v Wright Hassall LLP[2018] UKSC 12 that a defendant’s solicitor was not under a duty to inform a claimant litigant in person of his mistake as to service. However, in Woodward Master Bowles declined to follow that decision because he thought the Supreme Court had not heard argument on the effect of the overriding objective under the Civil Procedure Rules, which requires cases to be dealt with justly and at proportionate cost. The master held that Phoenixʼs solicitors had an obligation to the court to give effect to the overriding objective rather than to indulge in what he characterised as “the deliberate playing of a technical game”. This obligation overrode Phoenix’s right to take advantage of its opponent’s mistake.

First appeal to the High Court

In the High Court, HHJ Hodge QC allowed Phoenix’s appeal. He held that the overriding objective did not give rise to a duty to warn an opponent that its service was defective and did not accept that Phoenix’s solicitors had been “playing a technical game”. Rather, Mr Woodward and his solicitors had “courted disaster” by unreasonably delaying service of the claim form while the particulars of claim were finalised. They could instead have served the claim form and applied for an extension of time for service of the particulars. Any injustice to them did not outweigh Phoenix’s loss of its limitation defence if the claim was allowed to proceed. Mr Woodward appealed to the Court of Appeal.

Decision of the Court of Appeal

The Court of Appeal upheld the decision of the High Court, holding that the Supreme Court in Barton had dealt with considerations relating to the overriding objective by implication, and therefore Master Bowles had been wrong not to follow their decision. The court agreed with HHJ Hodge QC that Phoenix’s solicitors had not indulged in “game playing”. They had simply taken a point which was open to them; they had not actively obstructed service.

Comment

This decision confirms that if a client instructs his solicitors to take advantage of a procedural error by an opponent, the solicitors will normally be entitled to act on those instructions, provided their conduct is not obstructive. In particular, the case provides a useful reminder that before serving proceedings, a claimant should establish whether or not a defendant’s solicitors are specifically authorised to accept service. Simply acting for a party does not imply such authorisation. If there is likely to be any difficulty in meeting the deadline for service, the claimant should apply to the court in good time for an extension or for alternative service.

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