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...