Claim Form Carousel: When Acting In Your Client's Interest Becomes 'Technical Game Playing'

Earlier this year the court held that the defendant's solicitor had been "technical game playing" when it did not point out an error in service made by the claimant's solicitor (see our previous article: Solicitors' Duties: Now including the duty to point out the other side's mistakes?). The High Court has now overturned that decision on appeal.

The solicitor for the claimant had erroneously served the claim form on the solicitor for the defendant without any express authority to do so. The defendant's solicitor was aware of the error immediately, took instructions from the defendant, determined that it had no duty to the claimant to point out the error, and then allowed time for service to expire before responding, meaning that a limitation defence to the claim was available.

First instance judgment

At first instance, Master Bowles had granted the application for retrospective service under CPR 6.15. The Master found that, although neither the defendant nor its solicitor had caused or contributed to the error in any way and had not owed a duty to the claimant to point out its mistakes nor had any professional conduct obligation to do so, the defendant's solicitors had failed to comply with the overriding objective of the CPR. In particular, there was a failure to comply with the duty to avoid unnecessary, expensive and time consuming satellite litigation. It was in balancing its duty to its client with its duty to the Court, not to the claimant, that Master Bowles found that the defendant had erred.

Whilst writing the judgment, the Supreme Court handed down its judgment in Barton v Wright Hassall [2018] UKSC 12, and, in an addendum, Master Bowles considered the impact of the Supreme Court judgment on his conclusions. In Barton, Lord Sumption expressly noted that solicitors did not owe any duties to their counterparts to point out errors. Master Bowles distinguished that judgment on the basis that Lord Sumption had not been asked to comment on the role of the overriding objective, and so maintained his original position.

The first instance judgment in Woodward therefore appeared to introduce a seemingly counter-intuitive duty on solicitors to advise their clients to abandon a position of strength.

Appeal judgment

The main thrust of the defendant's appeal was the apparent inconsistency between a party not having a duty to its opponent to point out mistakes, but to have a duty to the Court to do so. Clearly moved by the argument that Master...

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