July 11, 2019

Court of Appeal confirms solicitors are under no duty to alert opponents to their mistakes

The Court of Appeal in Woodward and Another v Phoenix Healthcare Distribution Limited [2019] EWCA Civ 985 has unanimously dismissed an appeal against a judgment of the High Court, which had overturned a decision made by Master Bowles to grant an application for retrospective service under CPR 6.15, where a claimant’s legal representative had erroneously served a claim form on the defendant’s legal representative without express authorisation to do so and the defendant's solicitors had not pointed out the mistake until after the expiry of the limitation period.

Lady Justice Asplin, giving the leading judgment, upheld HHJ Hodge QC’s High Court judgment (see our previous article), finding that the Master at first instance was wrong to conclude that the defendant's solicitors were in breach of their duty to further the overriding objective and had engaged in "technical game playing" by not pointing out the error. This is in line with the judgment of the Supreme Court in the matter of Barton v Wright Hassall LLP [2018] 1 WLR, which also concerned the defective service of a claim form, and which held that solicitors do not owe duties to their counterparts to point out their errors.

While the Court of Appeal judgment comprehensively supports the judgment of HHJ Hodge QC in the court below, and is likely to put an end to further appeals in this particular matter, solicitors acting for defendants will still need to proceed with caution when faced with an error made by the other side. The Court of Appeal has not given further guidance about the line to be drawn between allowing one’s opponent to make a mistake without correction, and "technical game playing". On the one hand, any active conduct, for example the attempted obstruction of service as in Abela v Baadarani [2013] 1 WLR 2043 (where the defendant declined to disclose an address at which service could be effected in accordance with the rules), would likely be "technical game playing". But inaction on the part of the defendant/its solicitors remains a grey area – for example, is there a duty to warn of an error where the defendant's own conduct has led to the misunderstanding? In addition, solicitors should take note that LJ Asplin commented that whilst the additional day or two that the defendant’s solicitor had had to advise the claimant of the defective service in Woodward, compared to the minimal time in Barton, did not make a difference to her judgment, "depending on the facts, the position may well be different if there is a substantial period before the expiry of the limitation period [of the claim form]." It is not clear from the judgment what difference a more protracted period of inaction would have on the outcome.

As such, whilst this judgment is of some comfort to solicitors, caution should be maintained. In addition, the judgment serves as another reminder to solicitors acting for claimants that they should clearly establish whether or not the defendant's solicitors are authorised to accept service and keep the issue of limitation at the forefront of considerations, allowing sufficient time to apply for extensions of time if necessary.