No Duty On Solicitor To Inform Opponent Of Error In Service

The High Court has held that there was no good reason to validate service retrospectively where the claimant's solicitors had served proceedings on the defendant's solicitors shortly before expiry of the claim form without having obtained confirmation that the solicitors were instructed to accept service: Phoenix Healthcare Distribution Ltd v Woodward [2018] EWHC 2152 (Ch).

The Master had found that there was good reason to validate service on the basis that the defendant's solicitors had engaged in "technical game playing" by deciding not to draw the claimant's attention to the error in service while there was still time to correct it. Although the Master accepted that there was no breach of any duty to the claimants, or any professional duty, he considered that this was a breach of the defendant's duty to the court to help further the overriding objective.

The High Court disagreed, emphasising that the culture introduced by the CPR does not require a solicitor who has not contributed to an opponent's mistake to draw attention to that mistake. This is in line with comments of Lord Sumption in Barton v Wright Hassall LLP [2018] UKSC 12 (considered here), where he said the defendant's solicitors were under no duty to notify the claimant's solicitors that service was invalid (in that case because the claimant served by email without the defendant's consent), even if they realised that was the case in time for the error to be corrected. The Master had considered those comments but, rather surprisingly, reached a different conclusion, saying he did not regard Barton as having given a definitive answer on the point.

This decision gives welcome clarification, in circumstances where the Master's decision had muddied the waters. It should not, however, be regarded as giving carte blanche to solicitors to stay silent in all circumstances where an opponent has made an error. The decision suggests that there would or may be a duty to speak out where a party's own conduct has contributed to an opponent's misunderstanding on a significant matter. It also leaves open the position where the situation calls for a response from the party who is aware of the error, as for example if the claimant's solicitors in this case had sought specific confirmation that service was to be treated as effective. The judge said he did not need to consider that situation.


The claimant issued proceedings on 19 June 2017, one day before its causes of action (in...

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