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Service mistake – discretion?

To what extent do you have a duty to point out the other side’s procedural errors (as part of your obligation to comply with the ‘overriding objective’)?

On the one hand, we have the recent Supreme Court decision in Barton [2018] where Lord Sumption suggested that there is no duty to advise mistaken opponents. But, since then we have had a High Court decision (which took that Supreme Court decision into account) and yet points to a contrary approach.

The claim form in a contract case was issued on the last day of the limitation period. It then had to be served within four months, which was done by sending it to the defendant’s solicitors (with whom there had been extensive correspondence). Shortly after expiry of the four-month period, those solicitors e-mailed that the service of the claim form on them was defective as they had not been instructed to accept service, and had not confirmed in writing that they were authorised to accept service.

The court decided there was no correspondence suggesting that the defendant solicitors were authorised to accept service, and their mere silence when told that the claim form would be served on them did not prevent them from then arguing that there was defective service. However, all parties have a duty to co-operate and avoid unnecessary satellite litigation; hence, lawyers should not take advantage of the mistakes of their opponents where to do so amounts to playing ‘technical games’ (even if they are acting in their clients’ best interests). In short, the courts should adopt a relatively flexible approach to discourage parties from game-playing with service. In this case, the claimants had taken sufficient steps to bring the claim to the attention of the defendant within the four-month period, and thus there was valid service (ie service was retrospectively validated).

That High Court decision has now gone to CA. Accordingly, at the present time, solicitors seem to find themselves caught between their duty to the court (which, according to the High Court may require them to point out the other side’s error), and their duty to their client (who is unlikely to want them to assist an opponent – which is the implication of the recent Supreme Court decision). Finding the correct balance between those two approaches may be extremely difficult. See article on Woodward v Phoenix Healthcare [2018] EWHC 334 (Ch) in [2018] NLJ 25 May 17.

 

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