The Judgment of the Court of Appeal in Woodward & Another v. Phoenix Healthcare Distribution Limited [2019] EWCA Civ 985 confirms that a party to litigation does not have a duty to raise the mistakes of others. The facts of the case are similar in many ways to those of Barton v Wright Hassall LLP [2018] UKSC 12: the Claimants’ solicitors e-mailed the claim form and particulars of claim to the Defendant’s solicitors, the Claimants’ solicitors had not agreed to accept service by e-mail and so the pleadings were not deemed served. The Defendant’s solicitors did not immediately point out that service was defective, but waited until the claim form had expired and the limitation period passed.

The Claimants made an application under CPR 6.15 to retrospectively deem the steps taken as sufficient to constitute good service. In the first instance, the application was allowed by Master Bowles who found that the Defendant’s duty to “further the overriding objective” extended to notifying the Claimants that, although there had been de facto service, there had not been deemed service, and that the Defendant had engaged in playing a “technical” game.

The Defendant appealed and His Honour Judge Hodge QC (sitting as a High Court Judge) allowed the appeal, on the basis that there was no support within the CPR for the Master’s finding that the duty to further the overriding objective extended to pointing out the mistakes of others in a situation which did not call for a response.  His Honour Judge Hodge QC also expressed the view that the Master was wrong to find that the Defendant was playing a “technical game”, noting that they had no duty to advise the Claimants and could not have done so without their client’s instructions to proceed in circumstances which could deprive them of the use of a limitation defence.

This time the Claimants appealed, but the Court of Appeal upheld the findings of His Honour Judge Hodge QC, that the overriding objective did not require the Defendant to inform the Claimants that service had been defective, and that the conduct of the Defendant had not been “technical game playing”.

 

Pete Blackmore

About The Author

Pete Blackmore

Head of Advocacy

Solicitor