High Court: No duty on solicitors to alert other side to errors

Email: Message sent in error

Litigation solicitors are not under a duty to alert their opponents to errors which they have not caused, the High Court has ruled.

His Honour Judge Hodge QC, sitting as a High Court judge, said failing to draw attention to mistakes did not amount to “technical game playing”.

Ruling in a case where a claim form was served on the defendant’s law firm instead of the defendant itself, HHJ Hodge said: “The courts have for many years addressed the situation of defendants who make service difficult by taking steps to evade service.

“Here, neither the defendant, nor its solicitors, had done anything by way of refusing to co-operate in effecting service of the claim form on the defendant. Such service was readily capable of being effected, as indeed happened as soon as the defective service came to light.

“Here there was no refusal to co-operate in effecting service; rather the defendant, through its solicitors, Mills & Reeve, had merely failed to point out an apparent error on the part of the claimant’s solicitors in circumstances where, as the master had found, there was nothing to create any duty to speak out.”

The court heard in Phoenix Healthcare Distribution v Woodward and another [2018] EWHC 2152 (Ch) that Sally Woodward and Mark Addison issued contract and misrepresentation claims against Phoenix on 19 June 2017.

The claim form and particulars of claim were served on Mills & Reeve on 17 October 2017, two days before the deadline.

Although an email response was sent five minutes after the documents were received confirming that the email from the claimants’ solicitors, Collyer Bristow, had been read, Mills & Reeve did not formally respond until 20 October 2017, after the deadline had expired.

The law firm referred to the email attaching the claim form, and the hard copy version received on 18 October 2017, pointing out that they were not authorised to accept service of the claim form, and it should have been served on the defendant company itself.

As a result, Mills & Reeve said their position was that “Collyer Bristow had not served the claim form and that therefore the court did not have jurisdiction to hear it”.

HHJ Hodge said counsel for the defendant accepted that, if Collyer Bristow had been informed of the defective service on 17 October, it could and would have served the claim on the defendant company before the deadline expired.

HHJ Hodge said: “In my judgment, the culture introduced by the CPR does not require a solicitor who has in no way contributed to a mistake on the part of his opponent, or his opponent’s solicitors, to draw attention to that mistake.

“That is, in my judgment, not required by CPR 1.3; and it does not amount to ‘technical game playing’.”

HHJ Hodge said Master Bowles at first instance fell into error by “taking the view that it was incumbent upon a litigator, or his client, to dispel a misunderstanding” in circumstances where the mistake had not been of the defendant’s making, or that of his solicitors, and had arisen in a situation which did not call for a response.

The judge said he did not consider that the overriding objective required this.

“In my judgment, ‘technical game playing’ is conduct such as taking arid procedural points which are, or may be, technically correct, but which are contrary to the spirit in which litigation should now be conducted, in terms of furthering the overriding objective.

“’Technical game playing’ is conduct such as resisting meritorious applications for relief from sanctions in circumstances where, in accordance with the criteria in Denton v White, such an application is bound to succeed.

“There is, in my judgment, a qualitative difference between seeking to resist a meritorious application and omitting to draw attention to a perceived mistake on the part of the opposing party to litigation, where to do so would be contrary to the best interests of the party in question and would deprive that party of a substantive defence.”

HHJ Hodge said the defendant was entitled to put forward a limitation defence, and the claimants could have “sought specific confirmation that the service was to be treated as effective”.

The judge said the ruling of the Supreme Court in Barton v Wright Hassall earlier this year gave further support to the defendant’s case.

He said Lord Sumption’s view was that the defendant’s solicitors were under no duty to advise the claimant that service of the claim was invalid, nor could they have done so without taking instructions from the defendant and advising that this might deprive it of a limitation defence.

HHJ Hodge allowed the appeal, set aside the order of Master Bowles and said the court would order that the claim form issued on 19 July 2017 be set aside.

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