A claim form was issued on 19 June 2017, which was the last day of the six-year limitation period for the claim. Whilst often a defendant will nominate its solicitor to accept service of the claim, in this case, the solicitor had not been instructed to accept service. The claimant then purported to serve the claim form on the defendant's solicitor. Whilst the defendant's solicitor was aware of the error in service, they chose not to respond until the claim became time-barred by statute a couple of days later. The defendant's solicitor then informed the claimant's solicitors of the error. The claimant attempted to invoke other methods of service by couriering, posting and emailing the claim form at the defendant's trading address before attempting to have retrospective service under CPR 6.15 validated by the Court.
At first instance, Master Bowles granted the application on the basis that the defendant had acted in a tactical manner by maintaining silence on the issue until time had expired. However, this was then appealed. On appeal, HHJ Hodge QC found that the defendant was under no duty to tell the claimant how to do their job.
The Court of Appeal held that the defendant's solicitor was not under an obligation to inform the claimant's solicitor that the service of the claim form had been invalid. Solicitors are under no obligation to highlight errors in service to other parties.
This decision reinforces that there is no duty requiring a solicitor to draw attention to an opponent's mistake, confirming the view of the majority in the Supreme Court in Barton v Wright-Hassall in 2018 – see our summary of that decision here. The position may be different where a party has contributed to the mistake of its opponent, but in this case that had not happened.
Best practice should be to issue and serve a claim form well in advance of the expiry of the limitation period. The Court was critical of the claimant, stating that they had "courted disaster" by leaving service until the latest possible second, leaving themselves no time to correct errors in service. It is key to adhere strictly to the Civil Procedure Rules on service, particularly when end of the limitation period is approaching.