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Service of the Claim Form: Playing 'technical games' considered breach of solicitor's duty to further the overriding objective

Master Bowles' recent decision in the case of Woodward v Phoenix Healthcare Ltd [2018] EWCH 334 (Ch) (16 March 2018) has been met with surprise and highlights the difficult line solicitors sometimes tread between acting in the best interests of their client whilst continuing to further the overriding objective.

The facts

Collyer Bristow ("CB"), the Claimant's solicitors, served a claim form on Mills and Reeve ("MR"), the Defendant's solicitors, on 17 October 2017.  The Claim had been issued on 19 June 2017 and, accordingly, time for service expired at midnight on 19 October 2017.  MR received the Claim Form both by email, on 17 October, and by post, on 18 October.  However, MR did not have instructions to accept service of proceedings and, on 20 October, after the Claim Form's validity had expired, MR wrote to CB stating that service had been defective.

CB subsequently issued an application and sought an order declaring that either the service effected upon MR fell to be regarded as good service, or that the purported service should be retrospectively validated pursuant to CPR 6.15(1) and (2). 

The decision

Whilst Master Bowles dismissed the argument that MR should be estopped from denying it was instructed to accept service due to their failure to inform CB, prior to expiry of the Claim Form, that they were not instructed to accept service, he did order in the Claimant's favour.  Master Bowles concluded that the conduct of MR amounted to "the playing of a technical game as to service" and, accordingly, retrospectively validated service of the Claim Form pursuant to CPR 6.15(1) and (2).

In his judgment, Master Bowles highlighted that there had to be a "good reason" in order to validate service and confirmed "the fact that the defendant has been made aware, within the period provided for service, of the existence and content of the Claim Form is necessarily a, if not 'the', critical factor"

In his reasoning he agreed with the views expressed by Judge Hacon in OOO Abbot v Econwall UK Ltd EWHC 660 (IPEC) that "the entitlement of a party to litigation to take advantage of an opponent's mistakes is qualified by the obligations that litigants owe to the court to give effect to the overriding objective and that, in consequence and contrary, perhaps, to the litigation culture that preceded the CPR, litigants no longer have the absolute entitlement that they may once have had to take advantage of an opponent's mistakes".

Appeal?

Following the well-publicised decision of the Supreme Court in Barton v Wright Hassall LLP [2018] UKSC 12, Master Bowles provided an addendum to his judgment, in which he confirmed that he saw no reason to change the conclusions previously reached. He did, however, recognise the conflict of authority on the point and granted permission to appeal.

Hopefully clarity will be provided by the Court of Appeal as to the extent of a solicitor's duty to warn an opposing party of their mistakes in circumstances where doing so would not be in the best interests of their client.  In the meantime, however, the advice must be to always carefully consider the timing, location and method of service.

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